This chapter introduces the main themes and arguments of the book. Each of the nine chapters provides a historical account of the courts that were entrusted with the dual duties of implementing the laws and promoting justice at a time of particular challenges of constitutional transition. An open, evolutionary interpretation of the judiciary, cutting through the country’s constitutional and political thickets, illumines the way Korea addresses the relationship between legality and substantive justice.

The promulgation of the Constitution in 1987 has been hailed as a defining moment in Korean history, putting to an end the long authoritarian rule and the moribund streak of constitutional justice. Constitutional adjudication became the primary means through which to enforce fundamental norms. There was a massive call from civil society for transitional justice, and a number of cases decided during the authoritarian period have come to retrial. The most notable turnabout in jurisprudence concerned cases involving the emergency decrees from the Yusin period. In 2010 and 2013, the Supreme Court and the Constitutional Court each declared that the emergency decrees were unconstitutional. This has given rise to the question of an unconstitutional constitution. Recent jurisprudence reflects the global trend of the constitutionalization of law, in which the constitution becomes a legal instrument applicable in all aspects of law and judicial administration.

This chapter examines the constitutional and legal changes brought on by the promulgation of the 1972 Constitution, commonly known as the Yusin Constitution. The new Constitution upended Korea’s political order by practically dismantling checks and balances. The president held complete control over state affairs, and the judiciary lost the power to review legislative enactment. Under the resulting constitutional authoritarianism, the Constitution served as a practical working principle of government power monopolized by the regime. Article 53 of the Constitution granted the president power to issue emergency measures, and between 1974 and 1979 President Park imposed a total of nine such decrees.These executive orders, constitutionally excluded from judicial review, served as the main instrument for the government in suppressing political opposition and sidelining the judiciary.