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 does this mean? Is constitutionalism itself something that defines its own values, that are essentially liberal-democratic and universal? Or is the value-system of constitutionalism, so to speak, of a secondary order and one that may be tailored to a specific (first-order) value system?

We can consider these questions by reference to the example of Confucianism, and Kim Sungmoon’s work is of great interest in this regard. The juxtaposition of ‘western constitutionalism’ and Confucian values in Kim’s work is not in itself new, but his consideration of public discourse and his particular attempt to conjoin the two concepts is original and powerful. In particular Bui Ngoc Son has discussed broadly and deeply the notion of ‘Confucian constitutionalism’, and the work of these two scholars may well persuade us that an accommodation is possible between these two ideas.[2] Other scholars have tried to see how Confucianism affects or explains judicial reasoning; and this is not confined to constitutional cases.[3] My own response is to say that constitutionalism enshrines certain values that arise from constitutions being, in the first place, law, so that there is a close analogy between Lon Fuller’s idea of the internal morality of law, and the principles of constitutional government which assume the rule of law as a basic premise.[4] But this does not mean that constitutionalism is locked into an ideology. Indeed, if it is possible for, say, a left-wing historian such as EP Thompson[5] and a right-wing political-economist such as Friedrich Hayek[6] to espouse the rule of law with equal certainty if not equal intent, then the same will be true of constitutionalism. Notably, constitutional preambles (not always present) tend to express common values allowing for flexibility of purpose and policy. By the same token, Confucianism is capable of expressing values consistent with constitutionalism, as both Kim and Bui have shown; and this in spite of the well-known aversion of Confucius himself to law’s coerciveness and the priorising of morality over law as a mode of social ordering. Although the classification of constitutional systems is a sub-discipline fraught with some difficulty, we can at least see that different constitutional forms are all (subject as above) consistent with the basic notion of constitutionalism. It remains a matter for debate whether constitutionalism extends to ‘non-liberal’ or even ‘illiberal’ constitutional systems.[7] To me, this is mainly a matter of definition. All constitutional orders can be said to contain non-liberal elements, but it is a matter of degree and definition whether a given constitutional order is so illiberal that it contravenes the underlying morality of the idea of a constitutional order, as opposed to a certain state of governmentality. This is not to say that Confucian ideas will inevitably be illiberal and inherently opposed to constitutionalism; Kim and Bui show us eloquently that is not so, and provide subtle answers describing the relationship. Whatever the origins of constitutionalism, it remains sufficiently lithe to scale the walls between civilisations. If this were not so, we would be hard put to explain East Asian constitutionalism.[8] This leads to the idea of ‘constitutional perfectionism’.

In ‘constitutional perfectionism’, as Kim calls it, we have something like Plato’s idea that to discover justice in the state we must first examine justice in the individual.[9] Or perhaps it is the other way round. Karl Popper shredded this idea in The Open Society and its Enemies.[10] For a constitution to prescribe for citizens what is the good life or the just citizen is nothing less, according to Popper, than an exercise in totalitarianism. Yet this very view is necessarily held in parts of Asia where Confucianism is strongly adhered to, and there is a perceived continuum of, rather than distinction between, the citizen and the state.

This prompts further reflection on the relationship between society’s values and those expressed in the constitution. While the checks and balances represented by ‘constitutionalism’ are designed to prevent the bad, they do not necessarily thereby define the good. One common answer to the idea of constitutional perfectionism is that, while we can easily identify injustice in practice when we meet it, we nonetheless find it hard to explain what justice is in the abstract, and are usually reduced to simply explaining the process we hope leads to substantive justice, as in the phrase ‘access to justice’, where the clear emphasis is on access rather than justice. Constitutionalism’s defect from an Asian perspective is that it tells us nothing about the quality of leadership. This was true even before President Trump’s tenure raised issues, seemingly for the first time, as what constitutes a ‘good’ president – what is the abstraction with which he fails to conform? The critiques of Trump put one very much in mind of the rectification of names, showing that, not just constitutionalism, but Confucianism too may have global resonance. From this perspective political leaders are as such entitled to a certain degree of trust,[11] and the rule of good men (in Confucian societies it is rarely women, but we will come back to this issue of gender) is probably more important than the rule of good laws. The Confucian view of leadership is well expressed by Singapore’s ideal of the ‘junzi’ or educated Confucian gentleman, for whom checks and balances are internally rather than externally imposed.[12] The opposite pole of this is perhaps Henry David Thoreau’s emphasis on the individual right to disobey and be guided solely by his own sense of right and wrong.[13] It is hard to imagine a Confucian spending a night in jail, as Thoreau did, for refusing to pay a tax. A Confucian is also, I conjecture, less likely to insist on the freedom to speak that which offends.[14]

Taking this point further, the Confucian may point to the absence of any notion of social harmony in Western constitutional ideas. Even the arch-rule-of-law-rationalist Max Weber emphasised the importance of the protestant ethic in the modernising Germany of the late 19th century; his was a lone voice in stressing the binding nature of social values in relation to government and capitalism.[15] Thus constitutionalism does not always in itself offer any clues as to how to deal with the issues of leadership and social harmony; or, for that matter, inter-generational justice. How does one regard public discourse about pension rights that allows the elderly to benefit economically at the expense of the young, or about climate change that shifts burden and risk down the generational line?

If we pause to consider constitutionalism from a law-and-society perspective, a constitution should reflect the values a society as a whole holds dear. Constitutionalism achieves this by entrenching fundamental rights, democracy, and the rule of law. Indeed if it does not achieve this, there are ways in which it may well be forced to – and one of those ways is by judicial decisions that try to balance formal with informal sources of reasoning, as we see in Kim’s study, which is a great example of this point. Yet even in reflecting society’s values constitutions also have the function of constructing society itself and its values, or at least those values that are held in common or are commonly held. In attending to the gap between aspiration and actuality this is a point we often miss. If the constitution adopts a function of construction, there is of course a danger of falling into the platonic trap that those values should be absolutely or perfectly adhered to. Under liberal constitutionalism a balance is kept between values held in common and values that are recognised as legitimate or allowed.  For this reason there is a distinction to be drawn between values that are inherent in citizens (constitutionally entrenched values) and values that are merely permitted to be held under liberal value-pluralism. That the latter values present difficulties is not of course a new idea; but addressing the Korean case of the daughters’ rebellion may add to our understanding of this problem.

Two recent instances from news reports come to my mind to illustrate this. In the UK it was recently suggested that new migrants should demonstrate their understanding and adherence to ‘British values’. It was pointed out in response, with pleasing irony, that requiring people to undergo this process was itself contrary to British values. The apparent contradiction is explained by value-pluralism. If a basic value is toleration of different values, then you cannot logically require people to adhere to values that are less basic than this. In France, in the second instance, a migrant failed this test of value-adherence, which in that country is explicitly required, when she refused on religious grounds to shake hands with officials administering her citizenship ceremony. The decision was that she had indeed thereby demonstrated her failure to adhere to the values of the French Republic, and citizenship was denied. Carl Schmitt would no doubt have had a field day with this; but my point is that liberal constitutionalism is neither value-free nor value-perfectionist. Drawing the line between the two positions is of course in practice difficult, as my two examples show.

The daughters’ rebellion case raises in complex ways, and in a different, Asian context, an issue of value-pluralism. The fundamental issue is this: can a clan association based on Confucian values discriminate gender-wise between its members, when the constitutional order enshrines gender equality?

Kim finds, as we would expect, that there are two sides to this debate. Yet the characterisation of the two viewpoints is neither intuitive nor easy to state unequivocally, as each point of view embraces a number of nuances or ambiguities. I do not, however, have space to set these out here, and they are well discussed by Kim in his chapter.

Standing back from this debate let me start by pointing out that despite the rich and in some ways puzzling context of this case, it raises an issue that is of fundamental interest to constitutional lawyers, namely, how far, or in what circumstances, can constitutional values be imposed upon civil-society or non-state organisations, which seem to inhabit a space somewhere between the public and the private? Here we can note that in constitutional law there is an increasing trend of treating issues falling under the family and what one might call purely social issues; for example, a comparable current issue might be whether a private concern should be allowed to discriminate on the basis of sexual orientation, caricatured by the American baker who refused the bake a wedding cake for a gay couple.[16] In matters of preservation of culture, there is, it seems, value in allowing discrimination that would not be permitted in the case of a public decision-making body. We would not regard it as wrong for a cultural association to refuse membership to somebody who hated that culture, or even to somebody who did not belong to it. The question of policy here, though, is how far does this principle extend? I suggest it extends as far as anything that does not tend to undermine in practice the common values of citizens within that particular system of law. An association devoted to religion-based terrorism obviously passes beyond the bounds of toleration. (I remain, however, unhappy with the use of the word ‘tolerance’, which suggests that non-citizen values are inherently bad, but we put up with them for purely strategic reasons.[17] Kim’s piece actually shows us another way of thinking about this.)

In this instance in Korea the issue was, as I have said, whether a Confucian clan association was required to observe the constitutional principle of gender equality. Thus the Korean case of the daughters’ rebellion reflects a familiar problem, albeit in a context which, I will argue, is unusual (helpfully unusual) in its causes, incidents, and ramifications.

In raising the question to a general level I have to confront immediately an analytical issue of great importance. Kim helps us with this example to understand creatively how a practical accommodation can be reached between liberal constitutionalism and prevailing societal values by use of Confucian public reasoning. In this public reasoning, Kim explains, traditional Confucian belief and social ordering is, in his helpful phrase, ‘housed within’ the liberal constitutional order. While it is not always quite clear to me whether we are using liberal constitutionalism or Confucianism to explain this (and perhaps the ambiguity is exactly the point), the example is highly instructive in terms of how we might approach value-pluralism more generally. If I have a criticism, it is that Kim pays insufficient attention to an analytical question that I now pose, and that is derived from my earlier comments.

The case raises an issue that is sought by the majority judges and by Kim himself to be explained in terms of a theory of voluntary associations. On this view Confucian clan associations are voluntary ones, being elements, if you like, of civil society. One can proceed from there to argue either that for this reason they need not comply with constitutional norms (that is, they may discriminate on the basis of gender, like, say, a club for sufferers from testicular cancer or breast cancer), or that, despite this status they must (on, of course, some clear, logical, and publicly-reasoned basis) be required to comply with such norms.

An important preliminary point, therefore, is whether indeed clan associations are voluntary associations based on an articulated belief-system or adherence to a set of cultural norms. This may be doubted for reasons that emerge from the debate that the case itself sets up.

First, it turns out that a very large number of Korean people, in fact, Kim alleges, almost all, belong or potentially belong to a clan association. I say potentially belong only because the correct basis of membership is in dispute. By this I mean that it is not clear whether it is based on any or some or all of i) a decision of the elders to admit, ii) adhering to a set of cultural values demonstrated through observance of rites, or iii) genetic affinity. But suffice it to say at this point that, given the prevailing culture, Confucianism is deeply expressed for Korean people through clan associations that, specifically, address filial piety, ancestor worship, and family harmony as duties imposed on clan members, and expressed though observing rites. Nonetheless the daughters were more concerned with their rights (of participation and property) than their rites.[18]

Secondly, it also turns out (and here there is again some ambiguity) that all men are automatically members of the relevant surname-clan-association by virtue of descent. Yet, puzzlingly, women are described as being merely entitled to membership if they consent to be members. Here the discussion is to my mind a little opaque in distinguishing between women who marry into a clan, and women who are born of clan members and so have a genetic rather than marriage connection to the clan. Given the purposes and possible bases of membership, one would have thought that daughters had a greater claim than women marrying-in. Yet this argument seems not to gain traction with the Confucianists. This immediately draws attention to the patriarchal nature of clan associations, which is not at all denied (indeed it is celebrated) by advocates of their autonomy. A man does not become a member of his wife’s clan, yet a woman becomes a member of, if any, her husband’s clan.

This leads to a further question as to the opposite of a patriarchal and patrilineal system. Semantically, the opposite is a matriarchal and matrilineal system (as in some South East Asian and African cultures). What is demanded, however, is a system that is gender-neutral. The court achieves this only partly, by saying that both filial piety and genetic affinity inhere in women as well as men. It then muddies the water by a gendered approach to membership that is inconsistent with the above rationale.

Thirdly, the Korean Constitution provides in Article 9 that ‘[t]he State shall strive to sustain and develop cultural heritages and to enhance national culture’. Thus it may be argued that clan associations are in effect designed to fulfil the state’s constitutional duty. Here the preservation of culture is not simply a kind of latent policy objective or toleration-inspired position inherent in a liberal constitutional order - it is an express duty. This distinction is important and is not uncommon in Asia. For example, the 2017 Constitution of Thailand specifically provides for the preservation of local communities, heritage, cultures and customs. This is expressed as both a democratic right of local communities, and as a duty of both state and citizens.[19]

Thus the word ‘voluntary’ is being stretched beyond its meaning if we seek to describe clan associations as voluntary. One can refuse or fail to perform the duties or rites of the association, and I suppose one could (and I understand many Koreans these days do) expressly reject the belief system involved; but one may well not be able to cease to be a member of it, any more than one could cease to be genetically related to members of one’s own family.

If so, then what, analytically, are these associations? Here I am reminded of the way in which we seek to classify public and private entities for regulatory purposes. Different systems have different ways of doing this, but the purpose is to decide which entities fall under private law and which under public law. In this it is a choice how much weight to give to the form, structure and legal basis of the entity; the substance of its purposes and activities; and the original reason for setting it up or setting up in a particular manner. For example, German law recognises that one cannot escape from public law into private law simply by adopting the legal form of a private entity (this is referred to as ‘flugt ins privatrecht’). Some systems may indeed ask whether the function in question would have to be performed by the state if the entity concerned did not perform it. This may be highly relevant in terms of a duty to preserve culture. If the testicular-cancer or breast-cancer club closed shop, that might well be most unfortunate for those affected: but if Confucian clan associations closed shop it would for all Koreans be a cultural loss, one assumes, of cataclysmic proportions.

Clan associations do not fit easily into the type of reasoning I have set out. If they are private, they are such, not because they are set up under a regulatory instrument (I assume they are not, or if they are, then it is of no great importance), but because they actually pre-date the modern state and the very concept of regulation. They are traditional, as is argued by the advocates of their autonomy under traditional Confucian thinking, and as is accepted under Confucian public reasoning. They have not escaped into private law: on the contrary, they have simply remained as they always have been, and the private law label is then imposed on them by the court, not chosen by them as a strategy. I observe here (and this is an element of comparative sociology, or perhaps anthropology, and I may be wrong about this) that clan associations very closely resembling the Korean ones are common all across Asia, especially in the overseas Chinese culture, and are not necessarily explicitly Confucian – they could be Buddhist or Taoist, for example. I therefore wonder whether they should be seen as elements of deep traditional culture, rather than equivalent precisely to religious organisations. By deep traditional culture I mean one that has historic depth, persistent social penetration, and constitutive value. I remain unsure, however, if, or how, this might affect the issue. It may be that, if one sees this as culture, which of its nature changes, rather than as belief-system that largely does not, then the result achieved is consistent with the prohibition on gender-discrimination.

These arguments lead to my conclusion, which is based on the question whether it is correct to see clan associations as purely private in the Korean context. Given the state’s duty to maintain heritage and culture, there seems to be a case for treating them as public rather than private institutions, in which case the duty of clan associations would be to implement full gender-equality without reservation. This might look like a contradiction, given the argument for patriarchy and Article 9; yet any public entity would surely be bound by the more express prohibition against gender discrimination in Article 11. No doubt Confucianists would see it as desecration of their belief system. In my view, if this social phenomenon is seen as i) public not private, and ii) cultural rather than religious, then we can accept that culture varies according to changing values of society, and those values are in part prescribed by the constitution.

Gender-equality is one such value. In my view the daughters’ rebellion succeeds in full. In my court they get everything they asked for. I concede that my argument may be based on incorrect empirical sociological assumptions, and I am happy for it to be trumped on this basis, but let us notice that a sociological analysis will also change over time, and that the many-headed rebellion of the daughters is in itself evidence of social change. My only concession to the patriarchs is that the preservation of their culture needs to be tempered with an understanding that culture is not immutable, but that by elevating their clans to the level of public institutions, I am in fact giving them a higher status than the court would actually allow them. They could of course retreat from this position, but by doing so they may think they lose more than they gain.





[1] For the categorisation applied to Asian constitutions, see Chen, Albert (2014), ‘The achievement of constitutionalism in Asia: moving beyond 'constitutions without constitutionalism', ch.1 of Chen, Albert (ed), Constitutionalism in Asia in the Early Twenty-First Century, Cambridge: Cambridge University Press.
[2] Bui Ngoc Son (2016), Confucian Constitutionalism in East Asia, London: Routledge.
[3] Chen-Wishart, Mindy, ‘Legal transplant and undue influence: Lost in translation or a working misunderstanding?’ 62: 1 International and Comparative Law Quarterly 1 (2013); Ginsburg, Tom, ‘Confucian constitutionalism: The emergence of constitutional review in Korea and Taiwan’ 27:4 Law and Social Inquiry 763 (2002).
[4] Fuller, Lon (1969) The Internal Morality of Law, rev. ed. New Haven CT: Yale University Press.
[5] Thompson, EP (1975), Whigs and Hunters: Origins of the Black Act, New York: Pantheon.
[6] Hayek, Friedrich (1960), The Constitution of Liberty, Chicago: Chicago University Press.
[7] Tushnet, Mark (2017), ‘The possibility of Illiberal constitutionalism’, 69 Florida Law Review 1367.
[8] Jiunn-rong Yeh and Wen-chen Chang (2011), ‘The emergence of East Asian constitutionalism: Features in comparison’, 56 American Journal of Comparative Law 805; contra Chen, above n.1.
[9] Blackburn, Simon (2006), Plato’s Republic: A Biography, London: Atlantic Books.
[10] Popper, Karl (1966), The Open Society and its Enemies, 5th ed., Vol I (Plato), London: Routledge.
[11] Tan, Kevin YL (2004), ‘The role of public law in a developing Asia’, Singapore Journal of Legal Studies 265.
[12] Thio Li-ann (2012), ‘Between apology and apogee, autochthony: The “rule of law” beyond the rules of law in Singapore’, Singapore Journal of Legal Studies 269. See, more generally, Bui Ngoc Son (2016), Confucian Constitutionalism in East Asia, London: Routledge.
[13] Thoreau, Henry David (1849), ‘The Resistance to Civil Government’, in Peabody, Elizabeth P (ed), Aesthetic Papers, Boston and New York: The Editor.
[14] Radics, George B, and Poon Yee Suan (2016), ‘Amos Yee, free speech, and maintaining religious harmony in Singapore’, 12:2 University of Pennsylvania Asian Law Review, 186.
[15] Weber, Max (1930/ 2002), trans. Baer, Peter, and Wells, Gordon C, The Protestant Ethic and the Spirit of Capitalism, London: Penguin Books.
[16] As in the recent US Supreme Court case reported at <https://www.theguardian.com/law/2018/jun/04/gay-cake-ruling-supreme-court-same-sex-wedding-colorado-baker-decision-latest> (accessed 11 July 2018).
[17] Goldie, Mark (ed) (2010), A Letter Concerning Toleration and Other Writings, Indianapolis: Liberty Fund.
[18] Let me add here that Kim’s analysis, consistently with the legal analyses he discusses, seems not to see this as an issue of property rights: sed quaere … this of course is another discussion.
[19] Ibid., ss.43, 50, 57, 76.

Comments

Popular posts from this blog

A Breach of Promise and a Matter of Sovereign Immunity: Mighell v The Sultan of Johor

Comparative Law and Legal Transplantation in South East Asia: Making Sense of the "Nomic Din"

PROSPECTS FOR MALAYSIA BARU: CONSTITUTIONAL CHANGE WITHOUT CHANGING THE CONSTITUTION