Prof. John Ohnesorge
Reformers, local or international, who set out to engineer social change by tinkering with a country’s legal system are bound to face certain questions: “What is the relationship between legal doctrine, the functioning of legal institutions, and economic activity?” “How is the functioning of the legal system affected by social/cultural norms, and are such norms in turn affected by change to the formal legal system?” “Can legal reform alter fundamental power arrangements in a society, or will legal reforms that challenge such arrangements inevitably be foiled by power holders?” Korea’s experience, over the last century, in economic, political and legal development provides a wonderful laboratory for exploring these and similar fundamental questions. Choson Dynasty Korea employed the Chinese-style governance that Max Weber argued was incompatible with modern capitalism, but later observers have argued that “Confucian values” are a boon to development, rather than a hindrance. Japan’s colonization of Korea in the first half of the Twentieth Century likewise provides an instance of the forceful imposition of highly “Weberian” Civil law system on a non-Western society, facilitating explorations of the extent to which such imposed “legal transplants” take hold, as well as the costs of such authoritarianism to law’s legitimacy.
The U.S. occupation of Korea after the Second World War, and the subsequent U.S. installation of the Syngman Rhee regime, again provides fertile ground for thinking about the extent to which Anglo-American legal norms and ideals can be successfully inserted into a Civilian legal order, as well as the ways in which local political entrepreneurs can maneuver to foil a seemingly hegemonic outside intervener. The “developmental state” era that followed Rhee’s downfall may provide the most fertile ground for thinking about the role(s) of law in economic development, as these decades represent arguably the most successful example of rapid economic development yet achieved. What role did law in general, or specific areas of law, play in this economic success story? Is there one story for private law, and another for public law? One story for corporate law and another for environmental law? What about the apparent dominance of the Executive over the Judiciary, and the lack of legal checks on the authority of the State? Where were the “credible commitments” to restrain the State’s grabbing hand?
Finally, the democratic reforms since 1987 have dramatically increased the autonomy of Korean law, paving the way for truly fundamental reforms to constitutional and administrative law, while the IMF crisis that began in 1997 helped further an already strong trend toward economic deregulation. The results of these reforms are far from clear, yet they too provide fertile ground for studying questions such as the effects of democratization on an authoritarian legal order, and the extent to which deregulation of a highly regulated economy can be too rapid, perhaps undermining the ability of the State to engage in appropriate economic regulation. With the new law and development movement showing no signs of abating, these and other important issues can be explored in the realm of pure theory, or through examining the histories of countries that have lived, and are living, through rapid legal and social change. If one is inclined to the latter method, one could not find a richer story than Korea’s.
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