The Forced Labor Cases and Public Policy

The Korean Supreme Court's opinion in 2018 revolved around the argument that all measures taken under the color of law on the Korean peninsula during Japanese occupation were without force, because they took place outside of Japan's sovereign jurisdiction. Wartime laborers included those who were enlisted under government orders as well as those who were recruited for employment in munition factories, mines, and construction sites in Japan and other parts of the empire. The National Mobilization Act (1938) and the National Labor Requisition Ordinance (1939) were declared simultaneously in Japan and Korea. General conscription on the Korean peninsula began in August 1944. Even before that time, enlisting workers under government supervision and mediation (kan assen) met significant resistance from the population.Footnote ¹³ The Japanese corporate defendants contended, nevertheless, that their use of Korean labor forces had taken place through private recruitment with no coercive measures. The defense further argued that Korea was not an independent state and that the mobilization of citizens during wartime was within the state's prerogative. The Korean court disagreed. Labor recruitment measures were illegal because colonial rule was unlawful, and colonial rule was unlawful because the annexation treaties were void, so reasoned the court. Hence, the defendant corporations, having profited from forced labor, could not evade liability.Footnote ¹⁴

The Supreme Court cited, as evidence of the illegality of the colonial laws, Article 100 of Korea's founding constitution promulgated in 1948, which declared invalid those colonial laws that did not conform to the constitution. One notes, however, that the effect of this constitutional provision was not to invalidate colonial laws retrospectively, but to validate them prospectively, so that existing laws would continue to have legal force until they were replaced by the legislature or found by the court to be inconsistent with the constitution (Yi Reference Yi2013, 487).

Moreover, the legal effect of colonial laws has little relevance to determining liability in civil damage suits in the first place. The Supreme Court in 2018 argued that colonial laws had no normative force on the Korean peninsula or over Korean people. But, in a civil suit, one needs to ask not whether those laws had normative force over the plaintiffs, but whether they had binding force over the defendants. This is so because legal liability arises from unlawful acts. Whether the mobilization laws did or did not have binding effect on Korean people on the Korean peninsula is relevant only in determining the existence of immunity—that is, the exemption of liability for the defendant companies. Before that, their liability for damages or unjust enrichment must be proved first (Yi Reference Yi2013, 491). In order to refute the contention that the Japanese companies are not liable because they obeyed the existing law, one must show that they acted with the knowledge—or should have known when they acted—that the mobilization laws had no legal force in Korea. Could those companies be expected to have known that the recruitment of Korean workers and the use of their labor were illegal? Put differently, whether the Japanese companies committed illegal acts depends on whether the laws under which they acted were valid laws for the companies themselves, not whether those laws were valid laws for the colonial subjects. The Japanese government imposed and operated the wartime labor regime. If the mobilization laws were not illegal for the defendant companies but did not have binding force in Korea and over Korean people, and if the companies could not refuse to obey the laws or believed that those laws were not unlawful, their acts may not give rise to liability (Yi Reference Yi2013, 491–92). In short, the legality or illegality of colonial laws is not in itself determinative in finding the civil liability of the defendants. Once the Korean Supreme Court declared that colonial rule was invalid and that the companies illegally benefited from forced labor, however, the question of whether the defendants committed illegal acts in civil law was brushed aside, leaving a serious hole in its reasoning.

Were the claims settlement agreements reached in 1965 between South Korea and Japan merely aimed at providing moral, not legal, compensation? The South Korean government has contended, and the Supreme Court affirmed in 2018, that Japan extended only humanitarian aid through the treaties and that it still owed legal damages. This argument potentially challenges the entire postwar settlement order. South Korea was not invited to the San Francisco Peace Conference in 1951 that formally ended World War II because it was not a wartime adversary of Japan. Unlike China, Korea was its colony. Not recognized as a member of the Allied powers, South Korea had to settle its claims against Japan in a treaty separate from the San Francisco Peace Treaty (Chu Reference Chu2018, 195). The Japanese government is not in a position to let this postwar legal framework be questioned. For South Korea, on the contrary, it means that Korean people were mobilized to sacrifice for the good of the colonizers in their war efforts. The issue of civil compensation has as much to do with politics as law. Korea suffered the misfortune of losing national sovereignty and being occupied by a foreign country, regardless of whether the annexation treaties were legal.

Before the Korean Supreme Court deduced the defendants’ liability from the unlawfulness of colonial rule and the invalidity of colonial laws, it adduced the civil law concept of public policy in support of its refusal to accept the Japanese court decisions and also of its application of modern Korean law as the governing law in the proceedings. In private international law, the doctrine of public policy plays an important role in conflicts between laws and operates as an exception to the finality of judgments rendered by foreign courts (Suk Reference Suk2018). Article 217 of the Korean Civil Procedure Act reads, in part, “A final and conclusive judgment rendered by a foreign court . . . shall be recognized” if, in addition to other conditions, it “does not undermine good morals or other social order [sŏllyang han p'ungsok kita sahoe chilsŏ] of the Republic of Korea.”Footnote ¹⁵ Article 10 of the Korean Act on Private International Law states, “In case a foreign law governs, that law shall not apply if the application of its provisions evidently violates good morals or other social order of the Republic of Korea.” The court in 2018 concluded that both the recognition and enforcement of the Japanese court decisions in favor of the wartime corporations and the application of Japanese law were against good morals or other social order in South Korea as the forum state. The same language of “good morals or other social order,” commonly referred to as public policy, is found prominently in Article 103 of the Korean Civil Code (1960), which provides, “A juristic act which has for its object such matters as are contrary to good morals or other social order shall be null and void.” International public policy concerns not so much internationally valid principles in a natural law sense as the public order of each country. As such, it is on the same plane as domestic public policy, predicated on the characteristics of national social order.

Originating from Roman law, the concept of public policy, as stipulated in French and German codes, was introduced to Japan in the late nineteenth century.Footnote ¹⁶ It was a novelty in East Asia, where the notion of public good in law, as opposed to human morality and ethics, was previously absent. In traditional legal practice in East Asia, the desire to achieve harmony and equity in society operated mostly at the level of personal moral judgments of the magistrates. Lacking doctrinal sophistication, few attempts were made to achieve equilibrium between the substantive considerations of equity, on the one hand, and, on the other hand, the principle of legality that should not be undermined by arbitrariness (Kim M. Reference Kim2012, 21). When the Meiji Civil Code adopted the notion of public good in private relations, it marked a specific historical stage in legal development in East Asia.

Several provisions in Japanese law call for attention in this connection. Article 90 of the Japanese Civil Code provided, “A juristic act which has for its object such matters as are contrary to public order or good morals [ōyake no chitsujo mata wa zenryō no fūzoku] is null and void.” Article 91 of the code stated, “If the parties to a juristic act have declared an intention that differs from any provisions of laws or ordinances which are not concerned with public order, such intention shall prevail.” Article 92 declared that custom prevailed over law that was not related to public order when the parties intended to abide by such custom. In addition to the Civil Code, the Law on the Application of Laws (Hōrei, Law No. 10) of 1898 stipulated, “Customs which are not contrary to public order or good morals shall have the same force as laws, to the extent that they are authorized by the provisions of laws and regulations, or relate to matters not provided for in laws or regulations.” Public order or good morals in these laws represent the general interest of the commonwealth to protect in private law. One sees that Article 90 is a legal technique. By setting down a standard of social propriety, public policy allows the judge to substantiate the contents of compulsory provisions. The court's finding of a lack of social appropriateness triggers the prohibition of legal acts deemed contrary to the fundamental values of the community. This juristic position was extended to colonial Korea.

The Chosŏn Ordinance on Civil Matters (Minjirei; Minsaryŏng), issued in March 1912, formed the basis of colonial civil law order. The Government General of Korea imposed the Japanese Civil Code as the governing law in the colony but decreed that private law relations among Korean people were to be regulated by Korean customs, as long as they were not in conflict with laws related to public order. Article 10 of the ordinance, equivalent to Article 90 of the Civil Code, read, “Civil matters involving Koreans only are governed by Korean custom, even if a specific custom is different from law, as long as the law is not related to public order.” Under Articles 11 and 12 of the ordinance, matters of capacity, family and succession, and real property rights were declared subject to Korean custom instead of Japanese law (Kim M. Reference Kim2012, 173).

Customary law in Korea was the construction of colonial jurists. In imperial settings all across the world in the nineteenth and early twentieth centuries, anything that was not the colonizer's law was called custom (Kim M. Reference Kim, Modéer, Masferrer and Moréteau2019b, 205). When custom was decreed to have legal force in Korea among colonial subjects, regardless of the parties’ expression of intention, it became colonial customary law insofar as it was not contrary to legislation or public order; legal acts were subject to the same test. The Hōrei, the Japanese Civil Code, and the Minjirei all spoke to the same effect in the colony: the legal force of Korean custom was conditioned on its not being contrary to public order or good morals. The principle of public policy provided an all-inclusive mechanism to regulate legal relations and the morality of the public in general. In this way, the Japanese authorities attempted to harmonize the colony's legal tradition with the legal order in the metropole.

The concept of public order afforded the colonial high court extensive discretion in selecting which customary rules to enforce. The Chōsen Kōtō Hōin quashed the hitherto common Korean practice of holding siblings or other family members jointly responsible for debt.Footnote ¹⁷ If a tenancy contract failed to specify the duration, the court also ruled, neither the landlord nor the tenant could unilaterally end the contract during the growing season.Footnote ¹⁸ Article 90 was construed carefully, though. In an important decision in 1917, the colonial court clarified that a juristic act was not invalidated by the fact that the reasons, motives, or methods of the act were contrary to public order or good morals. In other words, unlawful motives did not necessarily void the effect of a legal act, unless the material consequences of that act were also contrary to public order or good morals.Footnote ¹⁹ The idea that public policy was not violated as long as the transaction itself did not violate laws was based on the jurisprudence of the Japanese courts. Under the Meiji civil law, the motive of a juristic act was not an essential element of that act; it formed only an accidental element of the juristic act and as such did not conclusively bear on its validity (De Becker Reference De Becker1921, 62). When the courts construed public policy provisions, they were keen on protecting individuals’ freedom to make contracts.

Korea's liberation in 1945 ushered in earnest efforts to expunge the traces of colonialism. But the law and legal institutions built by the Japanese, unscathed by decolonization, became the foundation of the modern Korean state. The American military government occupying the southern half of the peninsula ordered the retention of most colonial laws.Footnote ²⁰ Japanese criminal and civil laws remained the law of the land until the Korean Criminal Code came into force in 1954 and the Korean Civil Code in 1960. Moreover, these codes were closely modeled after the Japanese codes they replaced. Articles 90, 91, and 92 of the Japanese code became Articles 103, 105, and 106 of the Korean code, respectively.Footnote ²¹ Japanese law served not only as an archetype for Korean national codes but also as a ready reference for jurisprudence. The shared backgrounds of law meant the standards of judicial interpretation were quite analogous in the two countries. Except for specific cases deemed related to Korean culture or tradition, the courts in Korea did not stray far from the colonial precedents. Japanese jurisprudence provided critical interpretive guidelines, even though the Korean courts have been understandably less than forthcoming about its influence.

A notable feature of the Supreme Court decision in 2018 was that it made the Korean Constitution the source for the standards of the general clauses of the Civil Code. It linked public policy to fundamental values that it said were enunciated in the preamble to the constitution, promulgated after the end of colonial rule. The preamble proclaimed that the Republic of Korea was the successor to “the spirit of the March First Independence Movement” and “the founding of the Provisional Government” in 1919. On the strength of this language, the Supreme Court asserted that the Japanese court judgments holding the defendant companies not liable could not be recognized because they were contrary to the spirit of independence enshrined in the country's founding document—that is, contrary to public policy in Korea. The preamble was thus postulated as the depository of the formative principle of the Korean republic, one that defines and ultimately prescribes not only national values but also the Korean people's conceptions of justice and fairness. Following this interpretation, private law disputes concerning tort damages came squarely under the scope of the constitution.

By reasoning that civil liability arising from colonialism was subject to the abstract and aspirational language in the constitutional preamble, and by treating public policy as an equivalent of the supposed national interest, the Supreme Court allowed its judgments to be shaped according to the prism of public memory. Before 2018, there had been no precedents that accepted the colonial past as a sufficient ground for activating the public policy exception, other than in cases deemed related to Korean culture or tradition. The forced labor cases apparently changed that.

The difficulties that arise from judicial failure to consider specific colonial laws and historical situations are clearly seen in the “comfort women” cases. Court opinions have double meanings: on the historical level, they represent an official finding of facts by the state; on the legal level, they reveal the internal reasoning and working of the country's legal system. As long as the comfort women question is dealt with as a judicable matter, the courts have the critical role of discerning historical facts accurately and reconciling the different interpretations of law. As judicial readings of history have become more frequent, historical scholarship has in turn more caught up in political debate.

The “Comfort Women” Cases and Contracts

A common problem in scholarly discussions of colonial history is that they either treat colonial Korea as an integral part of Japan, disregarding the difference between the colony and the metropole, or, on the contrary, view the Korean peninsula as an enemy territory that Japan occupied by military force during the war. Neither would be accurate. Japan and colonial Korea formed a collective identity—in law, politics, and economy—while Koreans were subject to various kinds of discrimination. The Japanese Constitution had no provision for colonies. The 1889 Meiji Constitution, written before Japan embarked on its overseas expansion, was not revised until 1946. This constitutional silence compelled imperial planners to devise ad hoc the legal status of the colonies.

Following Korea's annexation in 1910, lawmaking power was delegated to the governor general of Korea.Footnote ²² This meant that the colony was beyond the reach of the statutes (hōritsu) enacted by the Imperial Diet until they were adopted by the colonial governor. Japan's civil code, civil procedure, criminal code, criminal procedure, and commercial law all took effect in Korea through the executive orders (seirei) of the governor general. The delegated legislative power in Japan's colonies resulted in the creation of the separate legal jurisdictions. Japan, Taiwan, Korea, Kantō shū, and Nanyō each formed an independent legal territory (hō chiiki) (Yamazaki Reference Yamazaki1943). Deemed necessary for efficient colonial management, the structure of separate legal territories significantly limited interference by the central government in colonial affairs. Conflicts between colonial administrators and metropolitan politicians over the autonomy of colonial governance were common in European imperial politics, and Japanese Chōsen was no exception. The governor general in Seoul constantly clashed with the politicians in Tokyo. Emphasizing the uniqueness of Korean culture, he argued that he could not forcibly change the customs of Korean people (Kim M. Reference Kim2012, 152).

In the history of imperialism, no home government was naive enough to believe that it could have its substantive laws faithfully enforced in the colonies, dispensing with indigenous laws and customs. This is why international treaties and conventions typically contained a reservation clause, making exceptions for colonies. Japan signed the International Convention for the Suppression of the Traffic in Women and Children in 1921 and ratified it in 1925, but it exercised its right to declare that its colonies were excluded from the treaty.Footnote ²³ Korea, Taiwan, and the leased territory of Kwantung (Kantō) thus remained outside the scope of the convention. Japan would later be accused by some of having an ulterior motive, that is, an intention to use Korea as a supply source for comfort women. This argument is ahistorical; it also ignores the possibility that the Japanese government was concerned about its limited administrative ability to ensure the fulfillment of its treaty obligations in Korea. Might one imagine that imperial Japan was simply incapable of controlling the colony as it wished?

During the past several decades, Japan has on many occasions admitted its military's role in the establishment and operation of the comfort stations. As noted earlier, however, the Japanese government has been notably resistant to the accounts of Korean victims being forcibly kidnapped by the Japanese soldiers and policemen (Kimura Reference Kimura2019). Japan has been more ready to acknowledge that Chinese, Dutch, and other women in the occupied territories of Southeast Asia were captured and forced into sexual labor at gunpoint. South Koreans, having suffered thirty-five years of colonial oppression and exploitation, have seen such conflicting positions as a form of double-dealing. Yet one may suggest that these seemingly contradictory stances of Japan have been dictated by a national belief, namely, colonial Korea had once been an integral part of the Japanese Empire. Japan took pride in its diffusion of a modern legal system in East Asia, and this idea of Japan's mission civilisatrice in the colonies helps explain the Japanese government's objection to the theory of state kidnapping. The gist of the thesis that there was collusion between the Japanese military, the government, and the prostitution industry in the mobilization of comfort women—and even cover-up by the authorities—is that it would not have been possible for civilian brokers to recruit such a large number of women by fraud and then transport them overseas without tacit approval by the government (Yoshimi Reference Yoshimi and O'Brien2000, 107–8). If the use of illegal means by civilian operators was condoned and even secretly supported by the Japanese government, as scholars have claimed, that would mean imperial laws were flouted with impunity. If the colonial authorities collaborated with the military in carrying out the abduction of Korean women, that would destroy the entire edifice of the Japanese Empire's colonial enterprise and mission. One can argue that Japan was unable to accept that there had been slave raids in Korea, owing to the illusion that colonial subjects were fully and equitably protected under Japanese laws. The legal institutions and implementation of colonial law, then, become key questions. Taking into consideration Japan's interpretive orthodoxy of its prewar history premised on law may render it easier to comprehend the seemingly unyielding position of the Japanese government over the recruitment of comfort women on the Korean peninsula.

In prewar years, the Japanese Empire assiduously defended the free will of women who engaged in its public prostitution system. The state's operation of prostitution placed Japan in an awkward and often embarrassing position. Under international scrutiny of its efforts to suppress the abduction and sale of women, the government insisted that signing a contract to become a licensed prostitute was entirely subject to the individual's free will (kojin no jiyū ishi).Footnote ²⁴ It acknowledged that poverty pushed many women into prostitution but maintained that prostitutes were also free to walk away from contract they had signed with brothel proprietors. The emphasis on freedom of contract in the Civil Code may well have prevented policy makers from confronting the social and economic realities of prostitution. The Daishinin, the highest court, struck down employment contracts in indentured prostitution but recognized the validity of consumer loan contracts, which it viewed included “nothing that is contrary either to public order or to good morals.”Footnote ²⁵

Ramseyer's essay on comfort women in 2021 drew on his 1991 article on public prostitution in Japan. In that article, he explained how brothels functioned as a sort of credit agency and how indenture contracts served the interests of brothel keepers and prostitutes alike (Ramseyer Reference Ramseyer1991, 106–8). Extending this argument to the wartime comfort women system, Ramseyer seems to minimize the differences between frontline military brothels and licensed prostitution in Japan. Any talk of “free will” at wartime comfort stations would make little sense. The problem was that the laws and regulations that were supposed to suppress human trafficking were not working well, especially not in colonial Korea. The operation of public prostitution in Korea was not the same as that in Japan. The Chosŏn high court ruled in 1911, repeating the precedents of the Daishinin, that “as far as the profession of a licensed prostitute is publicly recognized, a contract by which the debtor agrees to apply the profits from employment to satisfy the loan cannot be seen as void contrary to public order or good morals.”Footnote ²⁶ Other than this judgment, cases involving prostitution contracts were notably absent in the colonial high court, in contrast to the numerous legal disputes over “free cessation” (jiyū haigyō) in the Japanese court. This was mainly due to the different provisions of laws. There is no doubt that the state oversight of prostitute indentures was woefully lacking in the colony.

Despite defects in his argument, Ramseyer's suggestion that many Korean ianfu were victims of rampant human smuggling critically illuminates certain aspects of the history of comfort women that have received scant consideration. Evidence shows an alarming number of kidnappings in the colony. Ubiquitous recruiters sold young girls and women overseas. Newspapers in the 1920s and 1930s were filled with harrowing stories of girls who fell prey to traffickers, whether professional criminal networks or unscrupulous neighbors. Women from poor rural and mountainous villages were lured into the “human flesh market” with false offers of well-paid work.Footnote ²⁷ Most troubling was that many underage victims were handed over by their destitute parents or legal guardians. Under the Meiji Civil Code, in force in colonial Korea, persons under the age of twenty lacked the legal capacity to perform juristic acts like entering into a contract.Footnote ²⁸ In such cases, the minor's parent or legal representative acted on her behalf (exercising shinken or patria potestas).Footnote ²⁹ Illegal human trade frequently took the form of a contract in which money was exchanged between the girl's family and the broker. Parents who had incurred insurmountable debt allowed villains to take away their daughters. If the livelihood of an individual family was under pressure, a daughter, in most cases the eldest, was first to be released into the labor market, or worse. No one would characterize these disturbing transactions in terms of rational contractual relationships, but such undertakings stood at a crossroads between the legitimate exercise of parental power under the Civil Code and the illegal human trade under the Criminal Code.

Many trafficking cases involving exploitative parents or runaway daughters fell outside the purview of criminal law enforcement. Article 225 of the Japanese Criminal Code, also in force in the colony, criminalized kidnapping for profit; Article 226 imposed heavier penalties for “kidnapping for transportation out of the country.” There were multiple newspaper reports on the arrests of traffickers who took advantage of the poverty and ignorance of their victims, but in general, only the most egregious cases came under legal sanction.Footnote ³⁰ The fact that prostitution was legal made it difficult for judges to find the procurers guilty (Kawashima Reference Kawashima1951, 705). While this was a situation common in Japan and colonial Korea, the disparities in the law and administrative efficiency made a serious difference. In many cases, kidnappers caught by the colonial police were also charged with forging the family registries and consent letters necessary to obtain permits to transport the victims overseas.

Ramseyer's argument that the comfort women system amounted to contractual relations has been criticized on the grounds that no evidence of an actual contract has been found. This is indeed the case, yet few would argue that the discovery of a written agreement would then show that women were voluntarily engaged in commercial prostitution without economic pressure. Contract or no contract, it is difficult to imagine that the victim chose to subject herself to sexual servitude on her own volition. The thesis of contract can be viewed, then, not as contradicting so much as complementing the existing interpretations of comfort women. Academics in different disciplines understand and use the term “contract” in different ways. Poor and uneducated parents living in the countryside were obviously not on the same footing as contracting parties with wily recruiters, not to mention agents working for the military. In many cases, the parents would not have given the kind of informed consent expected in modern contract law. But it does not follow that an agreement could not have been made or any such agreement was conclusively void on its face. To the courts, it would pose a factual question. A Daishinin decision in 1902 has crucial implications in this regard. The court held, “In case a third person dealing with one exercising parental power knows that the act of the latter is in abuse of parental power, the act is still to be considered as one done directly between the third person and the person exercising parental power: it cannot be considered as an act done between the third person and the person who is under the care of the person exercising parental power.”Footnote ³¹ This reasoning reaffirmed the validity of agreements signed by the parents on behalf of their daughters. Whether there were signed contracts and whether they were signed under duress would definitely be pertinent, but not as important as the broadly accepted practices of parents imposing their will over their children.

The abuse of parental power proved to be more serious in a deeply patriarchal society like Chosŏn and colonial Korea (Kim C. Reference Kim2003, 198; Soh Reference Soh2008, xii–xvi). One key reason for the extensive human trafficking was that the colonial legal order recognized Korean customs as binding law. Under the Ordinance on Civil Matters, family matters among Koreans were governed by Korean customs, not by the Japanese Civil Code. Hence, the colonial government generally distanced itself from interfering in arrangements among Koreans that it saw as embedded in culture. Administrative and judicial officials avoided meddling with the traditional rights of the household head over the family members and especially parental power over children. An example would be the widespread practice by which desperate families sold their daughters as foster daughters. Known as suyangnyŏ, a child was given away for a period ranging from one to nine years, or sometimes with no time limit at all. The idea was that these children would be taught singing and dancing to become kisaeng and earn money for their “foster parents,” but often they were simply sold away to prostitution (Pak Reference Pak2009, 159). This practice may be seen as akin to concluding a geisha and prostitute contract (geishōgi keiyaku) in Japan in return for advance loans, but in Korea, it rarely involved paperwork and remained entirely in the realm of popular usages with no legal force. The adoption of girls created no legal relationship under the colonial customary law order.Footnote ³² Serious ills resulting from such customs were obvious. Yet, so long as it could be shown that the parents knowingly gave consent for someone to take their daughters away, for whatever motives, officials were reluctant to scrutinize the situation unless there was clear reason to suspect criminal activities. Whether the parents ought to have made different choices was not a material question for the court.

Customary law, civil law, and criminal law were in this way inexorably intertwined in the dismal colonial and wartime situations. The “heinous trade of the flesh” mushroomed, from “the sins of the parents who sold their daughters for a pittance.”Footnote ³³ It was not until 1938 that the colonial government began cracking down on the suyangnyŏ practice, having long condoned it as Korea's custom. Even then, it maintained the position that it would not meddle in disputes over advance money between birth parents and foster parents; it would simply appeal to Korean people's “conscience.”Footnote ³⁴

Some general observations about historiography are in order. In the late twentieth century, with the rising tide of international opposition to sexual violence, the previous force of nationalism was strengthened by a powerful gender paradigm. As the comfort women problem was raised to the level of a global issue of human rights violation, the urgency of evaluating the suffering of colonial Korean women has been such as to relegate other strands of potential historical evidence to the background (Kim C. Reference Kim2003, 198). To put things another way, positive law, including colonial customary law, has been obscured by convoluted notions of international customary law. As scholars highlight the Japanese Empire's crimes against humanity, the examination of how actual laws and regulations functioned in the colony has been sidelined. Needless to say, recognizing the problem of human trafficking does not relieve the Japanese Empire from its accountability in creating and running the military brothel apparatus. Debate over how many comfort women were there and how they were recruited will continue.

Disagreement among scholars is about whether to focus on proving Japanese culpability or on investigating what was going on in the lives of the colonized people, including such deplorable state of affairs created by popular practices like suyangnyŏ.

The argument that ethnic inequality under Japanese occupation nullified colonial laws and turned legal relations altogether void reveals a rather limited perspective.Footnote ³⁵ Transactions were made either between a Korean and a Japanese or between one Korean and another. The imbalance of power could very well have rendered the conditions of contracts lopsided, but it does not mean all legal relations that were formulated during colonial occupation could be jettisoned because Korea was a colony and Koreans were not free. No one questions that contracts existed in precolonial Korea, though contract law did not. Modern principles and concepts of civil law were introduced to Korea in the form of colonial law, under which contracts were made, legal relations formed, and obligations executed. Colonial Korea was far from a lawless wilderness. Whether the Japanese Empire oppressed and exploited the colony, as it doubtless did, may not be the main question legal historians should ask. Rather, they should ask how colonial law compared with Japanese law, and how people coped with the laws in the context of the existing social framework. Attention to historical evidence of law can elucidate the extent to which colonial law was used as an instrument of alien rule, and also how the use of law by the Korean population influenced in turn the trajectories of colonial rule. Both were part of colonial reality.

The question comes back to the subject of colonial compensation. Issues of liability and damage payment for Korea's comfort women, as well as for forced laborers, cannot be dealt with solely under the rubric of colonial or wartime violence. Instead, they need to be discussed under the structure of colonial rule. Arguing that annexation was illegal and therefore the colonial legal order was invalid would be tantamount to declaring that the entire colonial period must be erased from Korean history. Confronting the destructive aspects of imperial domination does not lead to a sweeping negation of the existence and effect of colonial law in history.

Colonial Compensation Disputes and the Courts

Scholars around the world have pointed out the danger of muddling history and law, as the courts increasingly become involved in the movement to come to a reckoning with the past. Nazi war criminals were brought to justice after World War II, but the Nuremburg trials and other postwar proceedings also reinforced the important understanding that judicial truth and historical truth are not identical. Legal and historical trials have entirely different tasks (Evans Reference Evans2002; Ginzburg Reference Ginzburg1991; Resta and Zeno-Zencovich Reference Resta and Zeno-Zencovich2013; Rousso Reference Rousso and Schoolcraft2002). Most postwar trials in Europe involved criminal cases and were different from the colonial compensation trials. Still, the situations have in common the place of law in historical disputes and the role of national courts in international law.Footnote ³⁶

The Korean Supreme Court's opinions in the forced labor cases in 2018 reflect the prominence of constitutionalism in litigation in South Korea, even in private law proceedings. The court called upon the language of the preamble to the country's constitution as grounds for declaring the nullity of Japanese colonial rule, writing that South Korea's national foundational ideals as invoked in the constitutional document could serve as the standard for the public policy test in civil law. It follows that legal relations not in conformity with the constitutional basic order can be declared invalid. Few would dispute that the constitution sets forth the legitimization of the state and controls its legal order. But the civil law standards of public policy must be distinguished from the test of constitutional conformity of existing laws and principles.

In both Japan and Korea, the scope of the public policy provision is expanding (Kihara Reference Kihara, Cinelli and Hutchison2019; Yun Reference Yun2018). It seems consonant with the growing global phenomenon of the constitutionalization of law, a trend in which major social, cultural, and political questions are decided by reference to constitutional language. With advances in human rights jurisprudence, the constitution of a country has become the dominant instrument applicable in all aspects of law and judicial administration. Statutes are routinely applied and interpreted on the basis of constitutional principles and provisions, both in substantive and procedural matters. The influx of constitutional norms into private litigation through the medium of general clauses in the civil code has been particularly conspicuous in Korea, due in part to its democratization in 1987. Both the Supreme Court and the Constitutional Court, which opened its doors in 1988 under the new constitution, have exercised their powers actively to safeguard individual rights. The view that the most important role of judges is to protect basic rights led courts to draw readily from constitutional provisions (Kim M. Reference Kim2019a). Constitutional complaints in administrative law cases exploded. Litigants before ordinary courts increasingly resorted to constitutional arguments even in private disputes.

Finding private persons (including corporate persons) liable for colonial wrongs in private international law disputes has ramifications far beyond the compensation of victims. Are the public policy standards for evaluating juristic acts to be replaced by constitutional provisions or even by implicit constitutional values that the court ascertains from the text? Private law aims to maintain order in family relations and economic transactions, yet its basic principle is to ensure private autonomy. The right to compel another party to fulfill a contractual duty can be seen as a constitutional right. It is not the case that legal acts take effect if they comply with public order and morals; on the contrary, only legal acts that are in contravention of public order and morals are voided (Yun Reference Yun2018, 388). Likewise, constitutional rights are defensive rights, primarily to protect the private domain of the individual's liberty from infringement by public power. If the validity of a legal act that is only remotely related to compulsory provisions is disallowed due to its conflict with the perceived morals of the majority of people, would this not defeat the raison d’être of the constitution? A basic presumption in constitutional interpretation is that the provisions must be broadly construed so as to accommodate opposing viewpoints, not to exclude them. This is because the nature of fundamental values is not immutable, even those derivable from the country's constitution.

The expectation of compatibility with the constitution can place a serious burden on private law adjudication, especially if the supposed constitutional values are infused with national identity. One may ask pointedly: would the denial of the plaintiffs’ claims against the defendants in 2018 have caused dire consequences for Korea's public order nearly eighty years after the end of colonial rule? It is a reasonable question because the consideration of public order is time-sensitive (Chang Reference Chang2013, 199). Do colonial legitimacy and indemnity issues critically pertain to South Korea's core national interests and values in the twenty-first century? One cannot dismiss the impression that the Supreme Court's emphasis on public policy in the 2018 decisions was more an expression of its choice of how to interpret the nation's past than a fulfillment of the judicial duty of preserving the spirit of the political community.

There is no doubt that the Korean Supreme Court's reasoning was driven by the need to secure the interest of the victims and their right of access to justice. But the argument that there were no effective alternative means of redress for the former forced laborers is less than persuasive because the South Korean government had already provided aid to them through legislation during previous decades, in recognition of the inadequacy of compensation they had received from Japan. If compensating surviving victims was the issue, logic would point to the necessity of further legislative measures. After all, the problems of colonial compensation between Japan and South Korea need to be resolved through diplomatic channels, not by the judiciary. This much was pointed out by the lower court judges in 2021 when they went against the Supreme Court decisions that had slapped Japanese private companies with penalties, only to create an unprecedented diplomatic impasse. Inside South Korea, the judicial cacophony in compensation cases has puzzled and frustrated both the parties and the public. There is a maxim that like cases should be treated alike. When court rulings lack consistency, the public's trust in the judiciary suffers.

How the outstanding cases of colonial compensation will be resolved is of keen interest for many in both South Korea and Japan. While watching the matters unfold, one should remember that concerns of social justice or substantive moral insight do not give judges an unlimited interpretive power under the test of public policy. At a time when we rely increasingly on courts to address political as well as sociocultural questions, the virtue of judicial modesty is appreciated all the more. In a similar way, the humility of the historian is an important virtue; history should not be a medium for projecting present politics and beliefs onto the past.