Thursday, June 02, 2005

Constitutional Court Justice Resigns; Conscience and Judging

Justice Sang-Kyung Lee (official bios of justices can be found here) resigned abruptly from his post today (details here, here, and here). He was relatively new to the job, as he was appointed a little over a year ago (in February 2004), and was the second most junior member on the Court. (The most junior member is Justice Kong-hyun Lee, who was appointed in March 2005 to replace Justice Yung-il Kim when his term expired.) Justice Lee was chosen for the post by the National Assembly, and he still had about five years remaining in his term. (As I discussed previously, the National Assembly gets to select three Constitutional Court justices, the President another three, and the Chief Justice of the Supreme Court the remaining three, and justices serve for six-year terms.)

His decision to resign can be traced to this KBS story from May 25, which reported that Lee has been underreporting his income from renting his property his Seoul on his tax returns in the last ten years. According to the story, Lee conceded to the reporter that the allegations were true. In a statement he released today (which is quoted here and summarized here), he expressed remorse, while stating that he tried to do his best in following "the Constitution and conscience" in doing his job as a justice, specifically mentioning the impeachment case and the capital move case.

I don't have much to say about this resignation, but I'll use it as an opportunity to discuss something that I've found interesting in the Korean Constitution. In his statement announcing his resignation, Lee said that he followed his "conscience" (yangsim) as well as the "Constitution" while performing his duties as a constitutional court justice. The "Constitution and conscience" phrase refers to Article 103 of the Korean Constitution, which states, "Judges shall rule independently according to their conscience and in conformity with the Constitution and Act."

What's interesting about this from the American perspective is this. Generally, in the U.S., the term "conscience" comes up in connection with judicial decisionmaking when there is a conflict between what the law requires and what the judge thinks is a just outcome. It is commonly argued that a judge is supposed to follow the law, not his conscience, and if the judge goes with his conscience when there is a conflict, it is argued, the judge is abusing his power. Judges are of course supposed to protect individuals' freedom of conscience, but they are not supposed to rule by their conscience. This is why Justice Scalia begins this talk on the relationship between his Catholicism and his job as a Supreme Court justice by stating, "Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court."

This "conscience" can be either liberal or conservative, so depending on which conscience is doing the work, your reaction may vary. For example, Roy Moore, the former Chief Justice of Alabama Supreme Court who was removed from office for refusing to move a Ten Commandments monument from the court building, repeatedly cited his conscience to explain his conduct. On the liberal side, appeals to "conscience" are often made these days in sentencing contexts when a punishment that the law requires is thought to be excessively harsh (some examples here, here, here, and here). Of course, speaking of conscience, one cannot forget the notorious "shocks the conscience" test in the U.S. Supreme Court's substantive due process jurisprudence. The "test," while undoubtedly still valid as a constitutional doctrine, is always on the defensive because of its perceived subjectivity and the nagging suspicion that "conscience" is where judges go when they don't like a particular legal outcome.

So from the American perspective, it is, to say the least, curious that the Korean Constitution embraces the concept of conscience in judicial decisionmaking and even requires that judges "rule . . . . according to their conscience."

What explains this? A few hypotheses. First, it may be that the key concept in the sentence, "Judges shall rule independently according to their conscience and in conformity with the Constitution and Act," is judicial independence, and the term "conscience" should be understood with that in mind. In other words, "conscience" may not be necessarily referring to a judge's individual morality, but a sense of duty that the Court should feel that it owes to the public to uphold the rule of law, even if there are political pressures to do otherwise.

Second, what worries Americans about "conscience" is that we tend to think that one's conscience is not only a private matter but also may be radically different from another's, which is why "freedom of conscience" is frequently linked with "freedom of religion" and why a need to protect it from pressures to conform to other people's beliefs is thought to arise. This is why we get nervous about a judge following his "conscience." We tend to think that the source and validity of an individual's deepest moral beliefs may remain opaque to us, which means that a judge's ruling by his conscience appears to be in tension with the democratic values of transparency and accountability, which in turn demand that public actors use public reason to defend how they exercise power. It seems to me that, for obvious reasons, the kind of anxiety stemming from a recognition of cultural pluralism is not present in the Korean society, at least not to the same degree. Hence the lack of worry about judges' following their conscience in Korea.

Third, deeply related to the second point: It may be that within the Korean legal culture it is unnatural to imagine a situation in which what the law requires conflicts with what the conscience dictates. The school of jurisprudence that is traditionally associated with this outlook is natural law. I certainly do not want to claim, without further reflection, that Koreans subscribe to the natural law theory, but it is hard not to notice a certain natural law "tone" in reading Korean legal opinions. I'll just mention one (big) example here: A concept that is frequently invoked in Korean constitutional law is the concept of "constitutional order," which played an important role in the two most famous cases the Court has recently decided, the presidential impeachment case and the capital move case. The phrase "constitutional order" shows up in the Korean Constitution, but as an apiration in the Preamble, not as a legal guarantee (similar to the way the U.S. Constitution seeks to "establish Justice, . . . promote the general Welfare, and secure the Blessings of Liberty" according to its Preamble). Nevertheless, the Court frequently talks as if the "constitutional order" is a deep normative framework that underlies, imbues, and supplements the Constitution, and is available both as an aid to understand the written Constitution and as a law to be directly enforced. Because the natural law-positivism debate has produced multiple versions of these theories with increasing complexity over the years, this is a thesis that will need to be thought through and defended with some care, which I will not attempt here.


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