Panel II: “Institutional Mechanisms for Rights Claiming”
“The Institution of Constitutional Adjudication and Fundamental Rights Claims in South Korea”
Hannes B. Mosler, Freie Universität Berlin, Germany
The paper investigates how in South Korea citizens’ petitioning for redress of grievances against the state through the institution of constitutional adjudication evolved since the end of the 1980s. While de jure there existed a constitutional review system since the founding of the republic in 1948, it was only after transition to formal democracy that infringement on fundamental rights could be de facto appealed to the constitutional court established in 1988. The paper explores conceptual shifts in constitutional rights over time in terms of citizens’ self-perception of the rule of law and fundamental rights as well as in court decisions. Therefore, the article sheds light on the constitutional court’s accessibility, and analyzes how citizens have been making use of the constitutional appeal system for claiming their rights. Furthermore, the study examines the changes in outcomes of constitutional adjudication on fundamental rights focusing on three illustrative cases.
“Evolving Legal Opportunity Structures in South Korea”
Celeste Arrington, The George Washington University
Scholarship on legal opportunity structures examines how rules and statutes related to access to the courts, adjudication procedures, and judicial remedies influence the likelihood that individuals and groups will use litigation to try to influence policy decisions or policy implementation. The legal opportunity structure is often considered relatively fixed, but changes in the legal opportunity structure can encourage or discourage recourse to the courts and may vary across issue area. This paper takes stock of changes in South Korea’s legal opportunity structures in the past two decades, focusing on civil and administrative litigation. On balance, Korea’s legal opportunity structures have become more open, even during two conservative administrations. The analysis indicates that claims-makers, activist lawyers, partisan politics, statutory reforms, and international factors help account for the liberalizing legal opportunity structures. The paper examines how citizens are recognizing and using legal opportunities, and sometimes even prying open new opportunities, in pursuit of policy change
“Public Interest Lawyering in South Korea: Sites for Minority Rights Protection”
Patricia Goedde, Sungkyunkwan University
Public interest lawyering in South Korea has evolved over the years as a response to inadequate rights protection, whether civil and political, socioeconomic, or of the most marginalized communities. During the democratic transition, Lawyers for a Democratic Society (Minbyeon) was the primary network of lawyers who advocated for civil and political rights especially on behalf of workers, students, and dissidents. Beginning in the 1990s, lawyers working with NGOs helped to promote more social and economic rights in the areas of labor, consumer advocacy, environmental rights, and gender equality. In the past decade, a small number of public interest lawyers groups have emerged to focus on the rights of minorities, such as foreign migrants, refugees, people with disabilities, and sexual minorities. Meanwhile, bar associations, law firms, and law schools have promoted pro bono activity as a professional ethic in respective degrees.
This article examines the public interest lawyering activities of several public interest law groups —Gonggam, Advocates for Public Interest Law (APIL), Hope and Law, and Gamdong— that advocate on behalf of minority groups. It asks, how and why have public interest law actors and institutions diversified? How and why do their mobilization tactics overlap or differ? How do public interest lawyering sites and mechanisms protect the rights of citizens versus noncitizens? Are minorities nationwide finding adequate representation in existing public interest law sites and mechanisms? [This article further explores how legal institutions such as bar associations and law schools invest or promote public interest lawyering, and to what extent they collaborate or are influenced by the public interest law groups above.] These case studies present insight into the workings of non-profit public interest law groups in South Korea to show how non-state actors remedy inadequate rights protection for vulnerable minority groups.
Panel II Discussion
Stephan Haggard and Eric Feldman’s comments on Panel II: “Institutional Mechanisms for Rights Claiming” challenged the underlying assumptions of all three papers. Haggard urged Hannes Mosler to drill into the Constitutional Court case data and focus particularly on rights cases, the substance of those cases, and what level of attention the Court gives to each case. Haggard suggested that Patricia Goedde think of the changes in public interest lawyering not as a shift but a “layering on” of new forms. Feldman pushed Celeste Arrington to ask whether litigation is democratizing or whether it is actually an undemocratic way to change policy. He also pushed her to demonstrate the value added of the “legal opportunity structure” framework and nest it in other literature on access to justice. Participants also raised interesting questions about the bias scholars have towards their own countries’ institutions and the relationship between gender and public interest lawyering.
