Law & Development

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Choi, Dai-Kwon
Issue Date
서울대학교 법학연구소
법학, Vol.52 No.3, pp. 37-62
DemocratizationAuthoritarianismthe Rule of LawInstrumental Legislations(government-led) Economic Development (growth)IndustrializationMarket EconomyLegal StabilityPredictabilityFarmland ReformSaemaul UndongHaengjong jido
There is a plenty of literature in which economic development is related to law

ever since Max Weber had related the rise of capitalism to formal rationality of

legal system. The Korea’s successful rapid economic development, along with industrialization,

from its economy of per capita income less than 100 dollars to that

of around 20,000 dollars less than a half century later, especially its take-off

stage, however, seems to put us to a puzzle in relating its experience to the rule

of law. For authoritarianism is understood usually as being not friendly to the rule

of law. Then the question is on how to meaningfully relate the Korean experience

of economic development to law.

During its authoritarian period, korea (the Republic of Korea) might be characterized

perhaps as having a dual legal structure consisting of a series of instrumental

special legislations (e.g, presidential decrees, The Foreign Capital

Inducement act of 1966, etc.) to support the government-led economic development

policy along with the authoritarianism that was a deviation from the

full-fledged rule of law and of a limited rule of law. For Korea have held its formal

framework of the rule of law even during authoritarian time ever since it

started as the country ordained with the liberal democratic constitution in 1948.

Generally authoritarianism tends to respect autonomies of other areas than politics

for the sake of its image unless its power is threatened. Consequently, the kind of

legal stability and one’s planning for the future that is favorable for business enterprises (savings and investment) may well be fostered even under authoritarianism,

as attested with the Korean experience in the past and that of China today.

It was administrative officials armed with the instrumental special legislations

and with the concepts of haengjong jido, administrative guidances, to support the

government-led import-substituting, export-oriented, heavy-chemical industry fostering,

and other development policies, rather than lawyers involving in after-the-fact situation, who had actually led Korea’s rapid industrialization and economic

development. The development thus achieved has been accompanied by the waves of liberalism including the rise of the middle class, which in turn led eventually

to Korea’s democratization in 1987. Now along with the democratization, the gap

between the written liberal democratic constitution and the authoritarian political

practices is erased and a full-fledged substantive rule of law is finally obtained in Korea.
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 52, Number 1/4 (2011)
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