In February 2015, the South Korean Constitutional Court ruled that Article 241 of the criminal code, which made adultery punishable by imprisonment, is unconstitutional. In January the following year, the article was repealed, decriminalising adultery in South Korea. Decriminalising adultery, especially in a once conservative society with Confucian values, may seem counterintuitive and to some it may seem like the state is endorsing adultery. However, I will argue that decriminalising adultery contributes to freedom, democracy, and justice in South Korea. I will use the reasons for decriminalising adultery in the Constitutional Court’s decision statement to explain how political liberalism applicable to Korean society, rather than other ideas such as public reason Confucianism. First, I will show what the Constitutional Court says about what the law should regulate. Second, I will link the statement to the distinction between public reason and comprehensive doctrine. Third, I will explain the idea of public reason Confucianism, which may seem applicable to Korean society. Fourth, I will explain why applying public reason Confucianism to South Korea now would be undemocratic and unjust. Lastly, I will explain how comprehensive doctrines like Confucianism can contribute to the public political forum without dictating the law.
A major reason why the South Korean Constitutional Court ruled that adultery should not be a crime is that there is a distinction between the public sphere, which the state should regulate, and the private sphere, which it should not. The Constitutional Court distinguishes areas where laws should directly set rules and areas that should be left to morals. Especially when it is not possible to punish all acts that are morally questionable, the Constitutional Court says that in terms of activities in the private sphere, such as an individual’s sexual acts, a state should minimise intervention and regulation and leave them to an individual’s autonomy. It believes that a state should only exercise criminal punishment as the last resort when there is an apparent danger to legal interests. In other words, only when activities in the private sphere creates dangers in the public sphere can the state exercise criminal punishment. Due to such condition, it argues that an adult’s voluntary sexual acts belong in the private sphere and only when they appear in the public sphere and greatly harm the healthy sexual practices of society they require regulation by law. Adultery does not cause such great harm to society and the Court adds that statistics show no correlation between the legalisation of adultery and a disorder in sex morals. Hence, adultery should not be regulated by law and should be left to morals. It argues that when a state intervenes and punishes an individual’s private sex life in cases where it should be left to society and its sex morals, the state violates sexual autonomy, privacy, and freedoms. Even if an act is immoral, it says that the trend in contemporary criminal law is for a state to not intervene when an act belongs in the private sphere and does not create major harm to society (Chosun).
Such reason for decriminalising adultery echoes what Rawls’ political liberalism says the government should regulate and should not, especially due to the theory’s distinction between public reason and comprehensive doctrine. Rawls believes that discourse in a constitutional democratic government can be divided into the public political forum, which is the discourse of judges, government officials, and political candidates and the background culture, which is the discourse of civil society (768). The public reason, or what specifies political relations, applies not to the background culture but to the public political forum and requires terms that one proposes to be at least reasonable, if not optimal, for others, as free and equal citizens. Rawls applies the idea of political liberalism to the state’s interest in the family (779). Traditionally, he says a state’s interest in the family has been broader. But under political liberalism, he says, “the government’s legitimate interest is that public law and policy should support and regulate, in an ordered way, the institutions needed to reproduce political society over time.” Also, he says, “the government would appear to have no interest in the particular form of family life, or of relations among the sexes, except insofar as that form or those relations in some way affect the orderly reproduction of society over time”. He adds that “appeals to monogamy as such, or against same-sex marriages, as within the government’s legitimate interest in the family, would reflect religious or comprehensive moral doctrines.” Under the logic of political liberalism, state’s interest in family is only political, for instance, whether it reproduces society by raising and educating children, not whether families strictly adhere to a monogamous and heterosexual marriage. In the case of South Korea, a decision made by judges at the Constitutional Court decision applies to the public political realm, not the background culture. Hence, the idea of public reason applies to the Constitutional Court’s decisions, requiring the Constitutional Court’s terms to be reasonable to free and equal citizens. In order to stay reasonable, the Constitutional Court cannot make decisions that go against individual rights such as sexual autonomy and privacy when there is no major harm to society, such as an apparent harm to family as an institution for reproducing society. Especially when adultery does not harm one’s capacity to raise children, a state cannot punish adultery by law. Therefore, the Court ruled that adultery should not be regulated by law, but left to morals, where open discussions of comprehensive doctrines can take place.
However, in Public Reason Confucianism: A Construction, Sungmoon Kim argues that political liberalism does not apply to the South Korean context and presents an alternative, public reason Confucianism. Whereas political liberalism distinguishes public reason and comprehensive doctrine, Kim argues that “there is nothing wrong with involving controversial ideas about the good life in public deliberation and political decision-making process if they can contribute to a more robust democratic citizenship and democratic justice” (191). He thinks it is acceptable to apply comprehensive doctrines to the public political forum. In the South Korean context, he argues for public reason Confucianism, which entails applying Confucianism to the public political forum. He argues for public reason Confucianism based on two premises: first, that “there is a valuable Confucian way of life that is distinct from (if not starkly opposed to) a liberal way of life” and second, that “it is permissible for a state to promote or discourage some activities, ideas, or ways of life on the grounds of key Confucian values such as filial piety, respect for elders, ancestor worship, ritual propriety, and social harmony”. These premises relate to his propositions that the Confucian way of life is widely shared and cherished consciously or subconsciously by citizens of South Korea and that the state’s promotion of Confucian values is legitimate. Under public reason Confucianism, it would be acceptable for the South Korean government to make and enforce laws based on Confucian ideas. For instance, the state could punish adultery by law based on the Confucian way of life which requires married couples to be monogamous.
But involving Confucian ideas in the public political forum contribute to neither democratic citizenship nor democratic justice in South Korea today. First, public reason Confucianism does not lead to democratic citizenship because Korean people now ascribe to Confucian values much less than before. Enforcing a doctrine that is no longer valued by citizens is undemocratic. Even Kim admits that there are very few people that ascribe to traditionalist Confucian values, which he says are “heavily patriarchal, androcentric, and hierarchical”. Hence, he proposed public reason Confucianism, which he says is less traditionalist, is more equal, and values “filial piety, respect for elders, ancestor worship, ritual propriety, and social harmony”. Currently, Korean society is moving further from Confucianism to value even aspects like ancestor worship and ritual propriety, amongst others, less than before.
The Constitutional Court explains how the change in values that people prioritise made the law against adultery obsolete. It says that for many years in Korean society, traditional ethics have established marital faithfulness and monogamy as the moral standard. But it has observed recently, the spread of individualism has changed traditional perceptions about family structure, the roles and status of family members, marriage, and sex. It says that Korean society is changing to value sexual autonomy in pursuit of one’s dignity and happiness, not just traditional sex morals and the legal interest of protecting marital faithfulness. Due to the change in family structure, citizens’ perceptions of marriage and sex, and a tendency to prioritise sexual autonomy, it says a state criminally punishing a married person for having sex with someone that they are not married to no longer aligns with citizens’ perceptions. Therefore, the Constitutional Court strengthens its argument that love and sex is not something that should be regulated by criminal law but an issue that should be left to the individual. While it agrees that violation of marital faithfulness is immoral, it thinks it is no longer something to be punished by law, due to the change in values (Chosun).
Even when Korean people are no longer convicted to Confucian values, Kim argues that public reason Confucianism still stands because “Confucian values such as filial piety, respect for elders, ancestor worship, and ritual propriety are objectively good” (199). Confucian values cannot be objectively good when the promotion of such values leads to injustice. A state promoting Confucianism, especially enforcing moral standards by law, renders some individuals vulnerable to exploitation. In the case of adultery, the fact that adultery was illegal and how it was “prosecuted only upon the complaint of the victimised spouse” often made individuals powerless to those who were willing to exploit the lower legal standing (Criminal Act). The Constitutional Court says the adultery law was abused by the partner who was more responsible for the marriage’s failure as a whole to facilitate the divorce process (Chosun). Moreover, it says there were cases where the married person who committed adultery and the other participant were blackmailed for money and assets. Under public reason Confucianism, the state can promote or punish certain behaviours on the grounds of Confucianism. It is unjust for a state to grant or withhold power in such manner, based on the extent to which an individual follows Confucian values.
The fact that political liberalism applies more to the Korean context now than public reason Confucianism is not to say Confucianism can never appear in the public political forum in Korea. Rawls says, “reasonable comprehensive doctrines, religious or nonreligious, may be introduced in public political discussion at any time, provided that in due course proper political reasons and not reasons given solely by comprehensive doctrines are presented that are sufficient to support whatever the comprehensive doctrines introduced are said to support” (784). As long as there are political reasons to justify a cause that Confucianism supports, Confucian values can be introduced to the public political forum. For example, Confucian proponents of monogamy can argue that adultery does pose a danger to reproducing society or that the criminalisation adultery can prevent such danger. What Confucians cannot do is force their doctrine onto others and claim that those that do not follow should be punished by law, based on Confucianism alone.
There may be cases where political liberalism seems to clash with comprehensive doctrines such as Confucianism. However, political liberalism does not need to be at war with comprehensive doctrines. Neither does it endorse morally questionable acts like adultery. In fact, political liberalism creates an environment with religious freedom and mutual respect for comprehensive doctrines to thrive. Political liberalism protects rights of individuals and society as a whole, which is a cause reasonable comprehensive doctrines can accept. In a constitutional democracy with changing ideals like Korea, a state cannot enforce doctrines like Confucianism. Moving on from obsolete laws that are no longer reasonable is a step forward in freedom, democracy, and justice.
Kim, Sungmoon. “Public Reason Confucianism: A Construction”. American Political Science Association, vol. 109, no. 1, 2015, pp. 187-200.
Rawls, John. “The Idea of Public Reason Revisited”. The University of Chicago Law Review, vol. 64, no. 3, 1997, pp. 765-807.
Jeon, Sooyong. “Summary of the Constitutional Court’s Decision that Decriminalised Adultery in 62 Years”. Chosun.com, 26 Feb. 2015, http://news.chosun.com/site/data/html_dir/2015/02/26/2015022603212.html. Accessed 21 Nov. 2019.
“Criminal Act: Article 241”. Korea Law Translation Center, https://elaw.klri.re.kr/eng_service/lawView.do?hseq=28627&lang=ENG. Accessed 23 Nov 2019.