“Law in Contemporary Korea and Prospects for the Future”
A visit to the Judicial Research Training Institute
It was a pleasant walk from the subway stop to the Judicial Research Training Institute on a sunny autumn morning and I felt oddly inspired by this rare opportunity I had been granted to speak before a group of senior judges and engage them in a frank and open about the challenges that face Korea, and the world, today.
Although I did not think deeply about the significance of speaking before judges when I started drafting my short remarks, I could not help thinking about my aunt Jeanne Rouff, who passed away last year, as I struggled to articulate my perspective concerning the future of law in Korea.
Jeanne Rouff, my mother’s older sister, spent her entire career in Luxembourg, and was not as talented in English as my mother who went off to study in the United States and never returned. Aunt Jeanne served as the first women lawyer, the first woman judge and the first women member of the supreme court of Luxembourg.
My aunt Jeanne was a major inspiration for me as a child because of the depth of her intellectual engagement and her passion for her work. I wanted to be like her when I grew up. I visited her home, a grey stucco house set deep in a forest in Luxembourg, as a child, and was most impressed by the long polished wood desk in her study that was piled high with fascinating books, and files concerning the cases she was reviewing. I wanted to interpret laws and determine policies too, to do something big and important.
When I arrived on the sixth floor of Judicial Research Training Institute I was escorted to the offices of Professor Roh Yugyung (a judge on leave to conduct research), the woman who had invited me to talk a month ago. Professor Roh is a very intelligent, but innately modest, woman a few years younger than me who went to great lengths to make my talk a success. We sat down in her tidy office for a cup of tea with the morning sun streaming in through the window. Professor Roh wore a delicate, but unassuming dress, and quickly engaged me in a conversation about the group that would attend my talk. She reminded me eerily of my aunt Jeanne.
The seventy judges who attended my talk were about my age, with a few who were a bit younger and fewer who were older. Unlike many audiences that sleep through my talks, or catch up on email, the entire group was quite focused on the discussion and many came up to talk with me after the talk ended. There was a certain spark of vitality and enthusiasm in the group that made for a good talk.
But although my wife often says that I should have gone to law school, I ultimately ended up studying literature and teaching Asian studies for many years at University of Illinois. It never occurred to me that I would have a chance again to explore the interest I had in policy as a child, let alone to sit down and talk with lawyers.
I never developed any expertise in law, but I am constantly thinking about the systems that humans establish to imperfectly govern themselves. I often ask myself what the limits are for the establishment of good governance granted the contradictions within human nature itself.
I made up my mind that I would not talk about law per say, which I know relatively little about, but rather present the external factors that are changing our society and causing tremendous shifts in the function of institutions, changes that are often invisible to us.
I spoke about the impact of rapid technological change on our society and how Moore’s law has acted as an invisible hand that transforms institutions without our noticing. I suggested that the major task in the future will be the “rectification of names” (正名) that Confucius describes. We need to make sure, that the terms we use describe an institution or process is accurate.
I then spoke about the problems for governance posed by an aging society, a multicultural society and the impending challenge of Korean reunification. I also mentioned other serious threats to governance such as growing dependency on technology and the decline of public discourse, and the resulting isolation of citizens.
“Law in Contemporary Korea and Prospects for the Future”
November 4, 2015
It is a great honor to speak before a group of judges today. You are on the front line today in holding together our society in a period of tremendous social, institutional and technological change and I am sure that the challenges that you face are the source of many forms of stress, granted that you may not be certain as to the exact origins of that stress.
Or to put it another way, the transformation of our society and our culture is so profound as to be essentially invisible. You will do your job best if you are constantly aware of the changes taking place that are invisible to most citizens.
Judges in specific, and law in general, is essential to our society because humans are such strange animals. We want a just, fair and logical world—some part of the prefrontal cortex imagines such a perfect world. But our actions are often self-centered, unfair and illogical. You are charged with giving order to the chaos that is the human condition.
You are not magicians and cannot transform the nature of man, but you do suggest something of what is possible. Even if the world seems a bit chaotic today, there will no doubt be those who see in your actions an inspiration for what could be, and who will at some future date stand up for what is right, and what is just.
But let me come back to the question of change. First and foremost, change is driven by technological change, above all Moore’s Law which dictates that the processing capability of a computer chip will double every 18 months. That change is invisible, the push to introduce new technologies, and the profound transformations within our society, within our families, and between nations around the world are driven by this invisible hand of exponential technological change. Although the buildings that we see every day look the same and we eat more or less the same food, the manner in which our society is run has been completely transformed and this transformation poses tremendous challenges.
So what is changing? Well, technology changes the way we think, the way we obtain and promulgate information, and the structure of our social relations. The rise of the network society means that established systems for governance and law are increasingly far away from the daily experience of people. Moreover, the nature of the relations between people also continues to change.
Perhaps the greatest challenge going forward is what Confucius referred to as the “rectification of names” (正名)，the greatest challenge for law and the most important moral imperative for the intellectual.
What Confucius meant by the rectification of names was the resolution of the discord between the names that we employ to describe institutions and systems and the reality of how those institutions evolve and transform over time. There is always a lag, but in its extreme the gap between names and things can become the most grave moral crisis for a nation.
We can explain many of the problems in society if we think about the changing nature of names. We want to find some bad person 나쁜사람 who is responsible for what is wrong in our society, but if we think more deeply, we find that it is rather that the very nature of “government,” “newspaper” “university” “lawyer,” “doctor,” “military” has changed so radically that we expect these positions or institutions to do things that they are not capable of doing. The challenge for law in the future will be redefining the signifiers and making sure they match the signified.
The problem of the shifting nature of institutions is perhaps more severe than we think. Even the most basic terms like “money,” “government,” or “Google” are shifting in their use and meaning and we are not keeping up with the changes in our language, in our thinking or in our laws. Perhaps the best example is that of the term “bank.” What we call a “bank” today is in many respects profoundly different in its structure, its function and its goals than the entity called a “bank” that our legal texts write described forty years ago.
Many citizens are outraged about corruption in banks—although there is corruption in banks, the essential problem relates to these shifts in meaning of the term “bank,” rather than bad people. The institutions have changed and thus they behave in fundamentally different ways. In any case, we can best address the problems for governance if we first sit down and assess what exactly has changed, and why, in corporations and in government. This point is important for the future of law.
Korea faces some very specific problems as well. An aging society means that there is a large group of older people who cling to their vision of what Korea is, and what Korean culture means, and are resistant to efforts to move Korea in another direction. This has resulted in less concern about the needs of youth in Korea and less concern about the future of Korea in the 10-50 year range. A Korea dominated by older people is both biased against Korea’s long term interest and myopic in its investment in youth.
The challenge is so serious that we must think about how to remedy this problem even outside of the legal and democratic system. This is an extremely serious problem which you will have to think about. We should not allow our country to be irresponsible or authoritarian, but we should also not assume that democracy will be able to solve overwhelming threats like the aging population or the response to climate change. How that will be done is our task.
We must remember that the model for good government that supported the economic success of England, France, Germany and the United States was not merely elections and democracy, but the combination of citizen participation in politics with the development of a highly skilled and motivated civil service. Without a strong civil service, strong government with strong ethics, democracy becomes demagoguery very quickly. England implemented a strong civil service system in the19th century that allowed it to manage a global empire with remarkable efficiency. That civil service system was based on the Chinese model that had served China so well in the previous century.
Also, we live in a society of online networks in which fewer and fewer people read and many are swayed by the changing information that they obtain through the internet. Our citizens are isolated from each other and no longer form communities with close relations with each other.
That isolation in terms causes even more dependency on computers and even poorer relations with other people. This trend, driven also by changes in technology, is a tremendous challenge that remains invisible to many. It will also be your responsibility in the realm of law to consider how we will address this tremendous shift in our society and how it impacts the very nature of law and governance. If we do not take these changes seriously, we face the great risk that we will continue to have some sort of a legal system but it will be so far removed from the actual experience of ordinary citizens as to seem meaningless to them.
Another change in Korea is the emergence of a multicultural society of which I am perhaps a good example. The aging society has made this shift happen and it will mean that increasingly law will be important in Korea because many aspects of policy which were previously carried out in Korean society via customs and personal relations cannot be done in that matter. If you can no longer assume that Koreans have the same assumptions about society and the same patterns of behavior, instructions will need to be written out more concretely and specifically. That does not mean, by the way, that I think there should be more lawyers. The propagation of lawyers in the United States whose behavior is driven by profit, but it does mean that we need to consider the role of law in governance more carefully and make regulation much more specific. And those new multicultural Koreans must feel that Korea is their country and feel loyal to Korea. That means making efforts to promote multicultural Koreans in government and society, even setting quotas for the period of time.
Reunification will also be an enormous challenge in the field of law that we need to work on very concretely. I know that the topic is already being discussed, but I just wanted to offer a few ideas. We should assume that the unification process will be a precedent for unprecedented administration and legal innovation in Korea and it should be welcomed as an opportunity. If we play our cards right, Korea can be the most modern society with a system of governance far ahead of that of any other country,. It is a chance to write a new constitution, innovate in a system of governance that is built to meet the challenges of the information age, of the aging society, of climate change. But we will only seize that opportunity if we have a vision, if we have a clear direction.
Moreover, Korea’s past can be of great help in establishing a unified Korea. The laws and government agencies in both nations are not so easily merged, but if we revive terms and institutions from Korea’s past, we can create a shared new language of law that moves beyond the limitations of the present day and creates new common terms for both North and South. Government agencies or laws from the Chosun Dynasty can be reinterpreted in such a manner as to form new laws and agencies. Such renovation that refers back to a common heritage has the best chance of winning consensus in North and South and helping to develop a uniquely Korean judicial system.
Finally, we must guard against the tendency to use law solely as a means of guarding privilege and self-interest. The increasing gap between rich and poor is distorting law in Korea on a massive scale, and often this pernicious trend remains invisible to most people. You have the good fortune to be educated and to know the law. It is your duty and your honor to help to protect those who have not had such good fortune against serious distortions in law and in legal process brought about by the rise of a wealthy elite. This is not an easy task, and I myself am clearly influenced by those of means who help me (nor do I come originally from a poor family). But we must at the least recognize that law should strive to be an open space in which rational argument can triumph. Around the world, the sphere of legal debate is being overwhelmed by simple privilege and we must be on our guard against this trend.
Korea faces enormous challenges and I am not predicting that Korea will be successful in its attempts at reform in law. But I would like to say that I have been impressed by the people that I have seen in government in Korea and I think that Korea continues to be well run, despite the excesses of politicians. If we have a vision, if we continue to hold up the goal of creating a more fair and more transparent society (as opposed to just helping our families), I believe that Korea may well surprise us, and the rest of the world, in its ability to adapt and move forward.