Abstract
The author proposes and employs the Avalanche Perspective in analysing the entry of women into the Korean judiciary from the first pioneers in 1952 to the present. Starting from a general atmospheric warming trend towards women in postwar Korea, there developed instability in the status quo, then a breakthrough that led to a cascade of women participating in the legal profession. Although cultural resistance and political obstacles remained to be overcome, this quantitative expansion ultimately led to a greater acceptance of women’s participation in the judicial arena. Significant judicial changes that furthered the causes of women in contemporary Korea were coincident with women being members of the judiciary. The quantitative changes of the past fifty-six years opened the possibility of qualitative progress for women in the Korean judiciary. The Avalanche Perspective as applied to the judiciary in Korea, provides an understanding of the forces at work that have had a profound effect upon the place of women in the new cultural and political reality of the Korean people.
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Notes
In the Korean context the word “jurist” refers to all those who pass the National Judicial Examination and complete the judicial training at the National Judicial Research and Training Institute (JRTI), which includes judges, prosecutors and lawyers. See Kim (2003b) on the production of women jurists by the Judicial Examination in Korea. Appointments as judges (and prosecutors) are traditionally considered prestigious and those with superior performance records in the Judicial Examination and at the JRTI tend to apply to the Supreme Court for such appointments. I have used the terms “Justice” or “Judge” or “member of the bench” to refer only to those individuals who have become members of the judiciary.
All references to ‘Korea’ in this article pertain to South Korea only.
In developing the Avalanche Perspective, I relied heavily upon my extensive research into the pioneer generation and the first generation of women jurists in Korea. In addition to participant observation and library research, I conducted fieldwork in Korea from 1989 to 1991, where I interviewed all 54 (out of 58) women jurists of the first generation who were available at that time. This included extensive interviews with the pioneer Lee Tai-Young (see Kim 2000). Since then, I have returned to Korea regularly to collect data on and interview selective members of the succeeding generations of women jurists.
In this article I use the terms, the pioneer generation, the first generation and the succeeding generations as follows: the pioneer generation covers Lee Tai-Young and Hwang Yun-Seok, those who passed the Judicial Examination and completed judicial training at the Judicial Research and Training Institute between 1952 and 1969; the first generation is composed of the 1970s generation and the 1980s generation from 1970 to 1990 (Table 1); and the succeeding generations covers from 1991 to the present day (Tables 2 and 3).
In this article, “equity” refers to a general condition characterised by justice, fairness and impartiality.
See Ginsburg (2003, pp. 205–244) for the political nature of the Constitutional Court in Korea in general.
Roh names new Constitutional Court Chief. The Chosun Ilbo [Chosun Daily], 16 August 2006.
Roh names associate to head Constitutional Court. The Chosun Ilbo [Chosun Daily], 14 August 2006.
The Korean National Council of Women on 11 September 2006 issued this statement: “Justice Jeon is a well qualified nominee for Chief Justice of the Constitutional Court. She has proven herself as the first Chief Justice of the Criminal Court and the first woman on the Constitutional Court.” The same statement accuses the National Assembly of politicising her nomination, implying that it is because she is the first woman to be nominated as Chief Justice of the Constitutional Court.
According to the patrilineal culture, the male bloodline determines descent and inheritance in family law. The head of the household system requires that a family be headed by the eldest son of an eldest son. Composed of patriarchal rules such as patrilineal succession, patrilocal marriage and patriarchal headship, the male head of household system functioned as the main family institution in Korea for centuries.
Author’s interview with Lee Tai-Young conducted on 15 June 1991 at her home in Seoul.
Ibid.
Ibid.
Ibid.
Ibid.
Han is a Korean expression that describes a sense of unresolved resentment against injustice suffered, a sense of helplessness in the face of overwhelming odds, a feeling of total abandonment. I believe that this statement so emotionally expressed to me by Lee Tai-Young in her living room in Seoul in 1991 was her description of the moment of her transformation from being a member of an oppressed minority to becoming an activist representative for the rights of that minority—her moment of epiphany.
An ancient practice prohibited marriage between persons with shared surname and family origin. The family origin refers to the place where the patrilineal progenitor supposedly established the family for the first time. Though persons with the same surname but a different family origin could marry each other, those with the same family origin and the same surname could not. It was prescribed by the Korean Civil Code since it was enacted in 1952 until the Constitutional Court in its majority opinion held the provision of the Civil Code unconstitutional in 1995 (Lim 2004).
Author’s interview with Hwang San-Seong conducted in Seoul, 21 May 1991.
Equal Employment Law (1987, amended 1999); Law to Punish Sexual Violence and to Protect the Victim (1994, amended 2001); Basic Law for Woman’s Development (1995, amended 2001); Special Law to Punish Family Violence (1997, amended 2000); Law Prohibiting Gender Discrimination (1999, amended 2001), and the Law to Support Women’s Entrepreneurship (1999).
In the same year, Hyuna Yang became the first Professor of Feminist Jurisprudence at the prestigious Seoul National University College of Law. She has been instrumental in building coalitions among the judiciary, the bar, academics and others involved in feminist social movements. In 2005 The Korean Research Association of Feminist Jurisprudence, was launched with 100 members. This organisation has become an important voice for issues related to gender equality in Korea.
Case no. 2003 heonga5. Panraejip [Constitutional Court Recorder] 17: 2, 544–576. Hyonpop jaepanso 2000.2.22.
Act to Establish and Implement the Graduate School of Law (no. 3096) 2005 (amended 2007).
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Acknowledgements
The author wishes to acknowledge a generous Advanced Research Grant from the Korea Foundation that supported my fieldwork in Korea in 2004 and a Provost’s Research Grant from Long Island University in 2007.
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Kim, H. The Avalanche Perspective: women jurists in Korea 1952–2008. Fem Leg Stud 17, 61–77 (2009). https://doi.org/10.1007/s10691-009-9110-0
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DOI: https://doi.org/10.1007/s10691-009-9110-0