Tradition and Constitutional Rights Review

Critiques on human rights and comparative law often criticize that an obsession with the universal norm or the “Common Core” erases the diversity and specificity of the local contexts. It is at the same time doubtful, however, that an assertion of “Asian values” could serve as a justification for denying universal human rights to any extent. The ways that tradition or national culture comes into rights practice are more subtle and varied. A constitution is sometimes claimed as an embodiment or representation of national identity and tradition. In other occasions, tradition is challenged as a threat to constitutional rights and principles. This essay examines two illuminating cases adjudicated by the South Korean Constitutional Court: Domestic laws rooted in traditional values were challenged by citizens as oppressive of their constitutional rights, while tradition was also asserted by other groups as a justification for restricting rights. These cases illustrate how the conflict between traditional values (under the influence of the Confucian history in East Asia) and human rights and principles as embodied in the constitution – adopted with the nation’s independence and modernization since 1945 – have been exposed, deliberated and addressed through and within the framework of constitutional review. The case study exemplifies ways how contexts matter in the course of local rights actors’ engagement with universal norms and how contextualized cosmopolitanism emerges from this engagement.

The creation of the South Korean Constitutional Court was one of the key elements of the historic amendment of the South Korean Constitution in 1987, the momentous year that Korea achieved democratization, led by citizens’ nationwide movement and ending the three decades of military dictatorship. Partly because Asia has no supranational human rights adjudication system at the regional level, constitutional courts and their equivalent bodies in Asia are often the only venue for ordinary citizens and non-citizens to contest their human rights.

One of the most transformative decisions by the Korean Constitutional Court is the case of Household Head System (hojuje) decided in 2005.1 Hojuje had constituted a foundation of Korean family law, representing and reproducing patriarchal social and family structures rooted in the Confucian tradition. Under this system, every Korean citizen was registered as a member of a “household,” comprised of a “house head,” the eldest male in a family, and his subordinated family members, including his mother, wife and children. This law made a female citizen belong to her father when born, to her husband when married, and then to her son when her husband died, while a male citizen can create his own household and serve as a head. A nationwide coalition of women’s and civil rights groups brought a constitutional claim to the Court challenging this system.

The Court found this family system unconstitutional. The majority opinion held: “the role of family law is not limited to reflecting social reality. […] It should confirm and disseminate the constitutional principle.” The Court points to both Article 9 of the Constitution: “The State shall strive to sustain and develop the cultural heritage and to enhance national culture” and Article 36 paragraph 1: “Marriage and family life shall be entered into and sustained on the basis of individual dignity and equality of the sexes”. The Court found that the latter provision indicates a constitutional resolution to no longer acknowledge a longstanding patriarchal family order in the society. The Court articulated that the tradition under Article 9 is a concept with both historical and contemporary aspects, and should be valid and reasonable under today’s standards. If a traditional order goes against constitutional values and principles, that tradition cannot be constitutionally justified by invoking Article 9. The Court found hojuje unconstitutional violating the constitutional principles of gender equality and individual dignity.

The dissenting opinion joined by two justices emphasized that family law reflects “our unique and rational patrilineal tradition.” Reviewing hojuje with the proportionality test, these judges argued that preserving a patrilineal family order can serve as a legitimate government purpose, in light of the state’s duty to uphold traditions under Article 9. The justices found hojuje met the balancing test, asserting that the wife-belongs-to-husband family practice has been taken for granted for a long time and that this reality has not changed much until today, and that this system does not cause substantively discriminatory effects against women.

After this case was decided, an entirely new citizen registration system has been adopted in South Korea. Every Korean citizen is now registered as an individual, neither as a house head nor his subordinated member.

The Confusion tradition appears in criminal law as well. The Korean Criminal Procedure Law prohibits individuals from suing their parents/grandparents for criminal charges (with exceptions for sexual or domestic violence). This law is rooted in Confusion ethics of ‘hyo,’ a filial duty to one’s parents. Reviewing the provision under the proportionality principle, the five justices viewed that depriving a crime victim of the right to sue an offender, for the purpose of preserving a family order based on the Confusion tradition, violates the right to equality of those whose lineal ascendants are criminal offenders.2 However, the Court did not reach six votes, a required number to invalidate any law in Korea. The other four justices regarded this law as constitutional, with the following rationale: that a victim’s right to sue is not a constitutional right but a mere legal right under criminal procedure law, thus the legislature holds broad discretion in regulating this right; that for the relationship between direct ascendants and descendants, traditional culture and ethics should play more decisive roles than legal regulation; and that respect for one’s parents has been considered as the supreme moral value, and the law embodying this value has a rational basis for discrimination.

These cases illustrate how traditions encounter constitutional rights and principles. A constitutional review process serves as a venue to expose, deliberate and resolve conflicts and tensions between them. The dynamics are more complex than a dichotomous confrontation between universal human rights and cultural relativism. Restrictive laws rooted in traditions need stronger justificatory grounds than the assertion that the law serves traditional values or conventional social order.3 Rights-based constitutionalism deconsecrates traditions and requires them to be justified in constitutional terms when they restrict rights, equality, or other constitutional principles.

In the Korean context, the constitutional dynamics wear more layers, as the Constitution provides for succeeding and developing traditions as a constitutional duty of the state. The Constitutional Court in the first case addressed this tension by interpreting traditions in the contemporary context—excluding oppressive and outdated customs from the definition of tradition to be upheld under Article 9. Finding that preserving a patriarchal social order cannot serve as a legitimate purpose to restrict rights and equality, the Court did not have to proceed further with the proportionality test. In the latter case, the five justices tried to address the tension through proportionality reasoning. While these justices deemed upholding a filial duty to one’s parents as a legitimate purpose of law, they found the law unconstitutional because it excessively restricted rights.

These cases exemplify the ways that tensions and conflicts between rights and traditions are deliberated and reasoned through constitutional review. The majority opinions in each case make clear that a tradition or custom that does not uphold constitutional values and principles cannot provide justifications for restricting rights and equality. Even if some traditional values have continuing merits for contemporary society, the law based on those traditions needs to be justified through a further balancing test. Contexts are not erased but revived through this rights practice. As locality and specificity are reasoned through constitutional terms, a rights-based constitutional practice attains a cosmopolitan character with a capacity to accommodate both the locality of contexts and the universality of rights.

The above-discussed cases also demonstrate the emancipatory potential of constitutional rights contestation and adjudication processes for the individuals whose rights and equality have been denied under the name of tradition and national culture. Without such a rights review process, tradition could have more readily served as an uncontested justificatory tool by a dominant group to sustain oppressive law and social order. The constitutional rights contestation and review mechanism mobilizes and empowers the individual to grow into cosmopolitan rights-bearers acting locally with global minds. These bottom-up contextualized rights practices provides empirical grounds for challenging the oft-leveled criticism that human rights law is an elitist, top-down, and West-centric enterprise.


1. Constitutional Court of Korea, 2001 Hun-Ga 9 (Feb. 3, 2005).

2. Constitutional Court of Korea, 2008 Hun-Ba 56 (Feb. 24, 2011).

3. See Mattias Kumm, ‘Comment: Contesting the Management of Difference—Transnational Human Rights, Religion and the European Court of Human Rights’ Lautsi Decision’, in Kolja Raube and Anika Sattler (eds.), Difference and Democracy: Exploring Potentials in Europe and Beyond (Campus Verlag, 2011) pp. 245–59.

A German version of this article has been published in:
WZB Mitteilungen, Heft 157, September 2017, pp. 31-33.

Written by

Yoon Jin Shin was Senior Researcher at the WZB Center for Global Constitutionalism from 2016 to 2017. In 2017 she joined Seoul National University School of Law as Assistant Professor.
Website at the SNU Law

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