Showing posts from May, 2019

Values and Constitutionalism: A Comment on Kim Sungmoon and The Case of The Daughters’ Rebellion

In this brief discussion I wish to comment on Kim Sungmoon’s fascinating and thought-provoking discussion of the 2005 constitutional case discussed in his chapter 4. I must first disavow any expertise either in Confucianism (public-reason, traditional, or otherwise), or in Korean constitutionalism or Korean society. But I wish to look at this study in an (if possible) larger frame of reference in terms of comparison and constitutional theory, and the relationship between law and society, with specific reference to value-pluralism. Constitutions enshrine values. To pretend that they are somehow neutral is futile. An exception perhaps is the kind of ‘semantic’ constitution, which simply organises institutions, and ‘façade’ constitutions that do not represent the actual values that a society holds, but are a legal fiction or feint in the direction of liberal constitutionalism. [1] These we can ignore for present purposes. However, when a constitution enshrines values, what doe


Introduction Development people tend not to say much about constitutionalism. And yet much of what they talk about has definite and profound implication for constitutionalism. After all they often use ideas such as the rule of law, good governance, accountability, rights, and decentralisation – all of which are common currency in constitutional law as well as being main methods of implementing constitutionalism. On the other side of this coin people interested in constitutionalism tend not to say much about development. Yet much of what they talk about (largely the concepts listed in the last paragraph) actually needs, as they often recognise, a method of being implemented. In the last part of this article I will introduce the notion of ‘developmental operativity’, which I intend as a means of filling the practical gap between constitutionalism and development. This situation is, however, understandable in the sense that, in constitution-building processes, the interna