DEMOCRATIC LEGITIMACY OF LAW AND THE LEGISLATIVE FUNCTION OF THE CONSTITUTIONAL ADJUDICATION

1. Legitimacy of the Legislation in a Representative Democracy

The authority of law in a democratic state is grounded on an account of demo­cratic political authority, i.e., the ways in which the decisions of a democratic majority legitimately govern dissenters who would prefer to pursue an alter­native course of action but have been outvoted.

However, this places democratic decisionmaking, which is in the intuitive sense associated with elections and the majority rule, at the mercy of substan­tive values. Yet, a counterintuitive possibility that democracy might constrain voting for the demands from equality and various other substantive values does not always burden the liberal theory.

The second liberal approach connects democracy to liberal ideals concern­ing public reason and in particular to the idea that political power is never its own justification but must always be legitimated through arguments that are, in principle, acceptable to all citizens or constituents.^[357] This approach appears, for example, in John Rawls’s later work, as when he describes democracy as an attempt to �meet [the] condition’ that political power must be justified in terms that all citizens �might endorse as consistent with their freedom and equality.’^[358]

The connection between public justification and democracy is most clearly developed by Bruce Ackerman, who expressly seeks to �reconcile majoritari­anism with the principles of liberal dialogue,’^[359] that is, with the liberal demand for political legitimization on mutually acceptable terms. Ackerman’s argu­ment begins from a theorem that identifies four formal properties of collective decision procedures that are, together, logically equivalent to the majority rule.^[360] Ackerman defends the legitimacy of each of these properties by refer­ence to the liberal ideal of mutual public justification. Ackerman’s argument that these properties express the liberal commitment to public reason and mutual justification amounts to a liberal explanation of the authority of demo­cratic decision-making.

Thus, the liberal view of democracy denies that democracy in its common procedural sense can legitimately resolve deep disagreements about political principles or even justice, and it therefore contradicts the central place that democracy occupies in the experience of politics and political authority, as well as widespread perception thereon.^[362] Instead, the liberal view marginalizes the democratic process to be employed only in the narrow range of cases in which liberal principles of justice produce indeterminate results. Rawls puts this point clearly when he says that �we submit our conduct to democratic authority only to the extent necessary to share equitably in the inevitable imperfections of a constitutional system.’^[363] The liberal view has thus provided no answer to democracy’s power to produce authoritative resolutions of deep political disagreements, which is crucial in seeking persuasive grounds for legitimacy of the legislation in terms of democracy, and, further, for constitu­tional adjudication of constitutionality review over such legislation.

The republican view of democracy reverses the basic structure of the liberal view. Where the liberal view holds that democratic political authority depends on antecedent and more fundamental political principles, the republican view proposes that democracy is a freestanding political value that contributes to political authority on its own.

Nonetheless, the republican view of democracy does not seek to eliminate from political thought the ideals of equality that underlie the liberal view or to deny a connection between liberal ideals and political legitimacy. Indeed, proponents of the republican view may and commonly do accept that liberal principles may constrain the democratic process by, for example, insisting on the inviolability of certain fundamental rights. However, the contrast between the liberal and the republican views remains important in understanding the concept of democratic legitimacy of the legislation and the control on it through constitutional adjudication. Most broadly, the republican view, because it treats democracy as a freestanding political value, opens up the possibility that democracy may conflict with, and indeed outweigh, liberal political ideals.^[365] Further, the republican view opens up the possibility that constitutionality review by unelected officials through adjudication may be democratically justified even when it cannot be cast as protecting fundamen­tal rights.

Although the republican approach to democracy rejects the idea that demo­cratic authority must be an articulation of some substantive political value and insists instead that democracy is procedural in a fundamental way, the proce­dure at issue cannot be a simple majority rule. This tradition emphasizing the deliberative process underscores that the sovereign will, i.e., the will of the people, is not simply the fair adding up of the immediate preferences of the citizenry taken severally.^[366] The democratic sovereign cannot possibly arise out of a simple majoritarianism, at least not if democratic government is to make good on its promise to reconcile individual freedom with collective freedom by ensuring that even those who lose a vote take authorship of the collective decision.

The rise of a democratic sovereign, whose decisions command the alle­giance even of dissenters, therefore requires more than just fair adding up of fixed and inviolate preferences. Republican theorists of democracy have elab­orated this need for engagement in a variety of ways and at several levels of abstraction. They have identified the opportunities for political engagement on which democratic sovereignty depends and have explained how these forms of engagement induce persons to take authorship even of collective decisions that differ from theirs: some by identifying the general conditions under which collective self-government is conceptually possible,^[367] others by characterizing the general forms of political discourse on which widespread acceptance of democratic decision depends,^[368] and still others by identifying the specific institutions and practices through which particular democracies have histori­cally generated the political engagement that democratic sovereignty requires and the specific historical moments at which particular democratic sovereigns have appeared.^[369]

Rejecting simple majoritarianism in favor of engagement-encouraging methods of aggregation is a necessary part of the very idea of representative democracy and appears on the face of every such government. Insofar as elected officials are, as they inevitably must in some measure be, true repre­sentatives rather than mere delegates - entitled to vote their consciences rather than simply tracking the preferences of their constituents - governments cannot possibly achieve democratic legitimacy on the model of simple majori­tarianism.

All of the above leads to the following statements. First, democracy has a broader scope than what is credited under liberal theories, and a republican as well as liberal approach is necessary in order to delve into the democratic legitimacy of law and the legislation and of the constitutional control there­upon. Secondly, this approach to democratic political authority as the ground for democratic legitimacy of law and the legislation emphasizes that the demo­cratic process underwrites the development of a democratic sovereign and that individual citizens come, through participating in the democratic process, to take authorship of the sovereign’s collective decisions in the name of law, including even those that they initially opposed. Thirdly, the democratic process can function in this way only if it is more than a simple majority rule but instead involves an intensive engagement in one way or another among the participants. This engagement is fostered by political practices and institutions such as free expression and an independent press, and political parties. It also depends, in representative democracies, on more involved and complex mech­anisms of preference aggregation, which encourage political engagement among the populace in choosing representatives or among representatives in forming policy or both. In combination all of the above affect the unique func­tion and the legitimating factors of the constitutional adjudication over the constitutionality of the statute representing the majority will in a specific soci­ety, and South Korea is no exception.

A. Proceduralist perspective: legitimacy of law and lawmaking through process

What basic properties of lawmaking by the legislature legitimize the authority of a democratic regime to coerce its citizens by means of law? The answer to this question is in turn the core of the legitimacy and the function of the consti­tutionality review over the statute, and also what is to be taken most seriously in developing the standard for such constitutionality review. As seen above in general terms, this question has been answered by two different kinds of justi­ficatory theories of democracy. The first can be described as proceduralist theories. Proceduralist theories emphasize the value that may be derived from the very process of citizens participating in their government. Proceduralist justifications of democracy thus locate the value of the form of government not in the quality of the substantive legislation it generates, but rather in the inherent fairness or justice of its system of substantial and equal participation in legislation by the governed.

Proceduralist theories of democracy treat the very act of individual control of or consent to the process of government - the very act of individual partic­ipation in the process of government in some way - as morally valuable. They value the process of democracy, because it allows individual participation. Proceduralist theories differ from one another according to the ways in which each believes participation to be morally valuable. Some may see participation as valuable in itself, as an expression or necessary corollary of fundamental moral principles. Others may see participation as valuable because of the posi­tive influences the very process of participatory government is likely to have on individuals or on society at large. Rousseau saw the majority rule as a mechanism by which the majority, faced with a dissenter, could force her or him to be free.^[372] Part of what he meant was that the process of participating in democratic deliberation could teach the individual to abandon her or his private will and adopt a concern for the common good.

B. Functionalist perspective: legitimacy of law and lawmaking through outcome

The second kind of democratic justificatory theory for the legitimacy of democratic lawmaking can be described as functionalist theories. Functionalist theories focus on the quality of the substantive governance provided by democracy. They hold that democracy, because of its character­istic aggregation of diverse interests and viewpoints in the decision-making process, is at least the best possible way to produce the best substantive rules to govern society. They posit that objectively better decisions are more likely to be generated by a form of government that takes into account the interests and opinions of all of its citizens, like democracy, than by a form of govern­ment that restricts participation to, for example, a privileged few.

In functionalist view, a democratic government can be valued because it generates legislation through a process of reasoned deliberation and negotia­tion among a wide variety of viewpoints and interests, thus increasing the like­lihood that its laws will serve the common good.^[373] The basic reasons why democracy is thought to function well as substantive government to produce decisions and laws of high quality are intertwined with and dependent upon one another. They are that democracy allocates decision-making power to those most interested in the decisions; that it allows a diversity of interests to assert themselves in government; that it permits the participation of the most suitable decision-makers in government; and that it produces decisions through a process of reasoned deliberation. Each of these reasons, like proce- duralist theories, relies upon the participatory nature of democracy.

C. Participation and interest representation as legitimating factors in lawmaking

Proceduralism and functionalism discussed in the preceding paragraphs should not be seen as mutually exclusive. Ultimately, in one sense, with respect to the democratic legitimacy of law promulgated by the legislature or the representatives, both proceduralism and functionalism are procedural or process-based theories of legitimacy. That is, although the goals of each theory are different, the theories share a focus on the decision-making processes used to reach those goals. Functionalism in this sense cares about outcome or the substantive quality of government decisions including lawmaking in a general sense.^[374] Functionalism, like proceduralism, measures the democratic legiti­macy of a particular decision according to the process that was used to produce it, in the sense that a functionalist democrat would consider a law produced by representatives in a deliberative body who have been elected by universal suffrage at the regularly held election to be a democratically legitimate law. Functionalism, like proceduralism, is thus concerned with whether the processes of decision-making are legitimate. Its difference from proceduralism lies in the reasons why it believes a certain kind of process to be legitimate, that is, reasons having to do with the quality of the decisions or statutes which that kind of process tends to produce.

Thus, both proceduralist and functionalist theories of democracy, especially with respect to the legitimacy of law and lawmaking, value the individuals’ participation in government, and see the participation of the governed in lawmaking as the core value animating democratic legitimacy of law. Proceduralists value participation for its own sake, holding that the ability of the governed to participate in government decisionmaking gives expression to fundamental values or serves important ends. Functionalists value participation because they believe that a participatory process of decisionmaking generates decisions that are substantively better than those that would be generated by a process of decisionmaking by fiat. Yet, in a system of representative government just like the one we have in the Republic of Korea, most citizens participate in the government by voting for representatives who then convene and make laws for the common good and interest, not those who are legally bound by the partic­ular wishes of the constituents constituting their own regional districts.^[375] How does this square with the emphasis placed by both proceduralist and functional­ist strains of democratic theory upon participatory government?

In representative democracy, the principle of participation is implemented by proxy. The values served by participation in this sense are preserved by the fact that everyone may participate in deciding who will represent them and in replacing those people if they do not represent well. From a proceduralist standpoint, legitimacy of law and the legislation in a system of representative democracy is achieved in part because citizens have the ability to freely choose their legislators and to replace them periodically by holding elections. This mechanism of electoral control provides an incentive for legislators to act in accordance with citizens’ wishes to enact the sorts of laws that citizens want enacted. It is a matter of continuing controversy whether legislative represen­tatives should be guided primarily by the preferences or wishes of their constituents, by the best interest of their constituents as judged by the repre­sentatives, by the good of the nation as a whole, or by some combination of these standards. Regardless of how elected representatives ideally should act on behalf of their constituents, however, the democratic system of electoral control ensures that the people have the ability to replace legislators.^[376] This fact of electoral control means that the laws produced by the elected legisla­tors can be said to have been created through a system of citizen participation. Such electoral coercion is important on a functionalist view as well, in that functionalism, like proceduralism, relies upon a close correspondence between the actions of the legislative representatives and the viewpoints and interests of their constituents.

Besides electoral control, another important, related aspect of representa­tive democracy that allows the electorate to control or consent to legislation is the representation of the interests, or the interest representation through inter­est congruity between the representatives and their constituents. Part of the point of democratically electing legislative representatives is not simply to provide an incentive for them to act in ways the constituents find satisfactory and to replace them if they fail to do so, but also to allow people to elect repre­sentatives likely to look out for their constituents’ interests even aside from the coercive force of the polls.^{[377] [378] Thus, the idea of interest representation in this sense is incorporated within a proceduralist theory of democracy. The idea of interest representation reflects faith not only in the power of electoral coer­cion, but also in the power of electoral affinity.}

In this regard of interest representation, it should be noted that a crucial difference between proceduralist and functionalist theories of democracy is that functionalist theories require the legislators at critical moments to exercise their own independent judgment, at least partially unfettered by the expressed wishes of their constituents. This is necessary to actuate the deliberation component of deliberative democracy, as legislators strictly bound by the wishes of their constituents cannot engage in the process of negotiation, compromise and persuasion required to produce reasoned legislation. Functionalist theories of democracy thus require that a legislator, while repre­senting the distinct interests and viewpoints that comprise the particular contribution of her or his constituents, acts as her or his constituents would act if presented with all of the information and opposing arguments available to the legislator. A legislator, who is similarly situated to her or his constituents sharing a body of common interests with them, can strike a balance between responsiveness and independence. To the functionalist defender of democracy, the interest representative in this sense is thus close to the ideal legislator, as such a legislator brings to the legislative process both a commitment to the distinct interests of her or his constituency and an openness to persuasion, reason and compromise during the deliberation process.

2. Democratic Legitimacy of the Legislative Function of the Constitutionality Review over the Statute conducted by the Constitutional Court in the Republic of Korea

Whether we view democratic legislation by the legislature from a procedural- ist or from a functionalist angle, such lawmaking is legitimatized because it is legislation by participation rather than by fiat, and it is legislation where inter­ests of the constituents are represented. Compared with democratic lawmak­ing in the National Assembly, we tend to characterize the functionally and normatively adjudicative lawmaking or the legislative function of the consti­tutional adjudication in particular as nonparticipatory and thus nondemocratic. Thus, we tend to look elsewhere to justify the latter than democratic legiti­macy. The result is an uneasy tension between institutions such as the legisla­tion by the National Assembly, judicial interpretation of the statutes by various courts, and the constitutionality review over the statutes by the Constitutional Court.^[379]

However, this approach might ignore two of the features that would help us understand the legislative function of the constitutional adjudication in light of the similar sort of legitimacy to a significant degree present in the legislation by the National Assembly. The first is that the decisions reached through the constitutional adjudication are to a great extent the products not of the unilat­eral decree of a panel of justices, but rather of a process of participation and debates among the parties to the case, especially in those cases triggered by constitutional complaints, which may restrict the decisional options available to the Constitutional Court. The second feature is that the prospectively binding

nature of the outcome of the constitutionality review as constitutional adjudi­cation is tied to the degree in which the parties and institutions who partici­pated in the creation of those rules represented the interests and rights of those who will be bound by them. In this sense, the parties to precedential cases (albeit in a rather loose sense in the South Korean context), thus can be said to serve as interest representatives of potential subsequent litigants in a similar way that we expect the elected legislators to serve as interest representatives of their constituents.^[380]

Statutes - and, in this regard, also the Constitution - as commands of a sovereign, seem to demand a process of making particular decisions within their purview that is concrete and unchanging. However, statutes - and the Constitution in this context as well - are not self-interpreting, and, inevitably, their language presents ambiguities, gaps that must be filled through the process of reasoning that also operates in legislative lawmaking. This process can generate the same conditions of legitimacy in statutory and constitutional cases in constitutional adjudication as in the legislation by the National Assembly: conditions of participatory decision-making and interest represen­tation. Viewed as such through the lens of adjudication as representation, the constitutionality review over the statute by the Constitutional Court might not seem quite so problematic an antithesis to democratic government.

Understanding constitutional adjudication as representation suggests that how to apply the Constitution is something of a democratic choice after all, in a larger context of the Constitution of the Republic of Korea. The implications of this suggestion are two-fold. First, under this view, the constitutionality review by the Constitutional Court is not as susceptible to the politics of particular justices as it might seem, and the constitutional adjudication is not ultimately a matter of rule by judicial fiat. At the same time, understanding the constitutionality review this way shifts the question of the countermajoritarian difficulty to the higher level, as it forces us to face the tension between a supposedly immutable meta-democratic constitution on one hand and a primar­ily democratic procedure for determining what the Constitution means on the other hand. Then, the trouble is no longer the seemingly apparent anomaly of allowing non-elected justices the power to invalidate majoritarian statutes. Instead, the trouble has become the practice of subjecting the Constitution, which is a document of meta-democratic commitment, supposedly immune to the vagaries of simply majoritarian democracy, to interpretation by a process that is itself significantly democratic. Adjudication as representation might thus be seen as a challenge to the constitutional supremacy. However, subjecting the

Constitution to interpretation through a normatively democratic process of participation by those affected is at least a preferable alternative to interpreta­tion at the unfettered discretion of a panel of justices.

Here, it is useful to note that there are at least a few reasons for which the practices necessary for constructing a democratic sovereign also open up deficits in democratic legitimacy - that is, departures from the sovereign will. First, democratic deficits can arise because the very same procedures needed to generate a sovereign will are open to manipulation and abuse by special interests. These procedures encourage political engagement by requiring deliberation and compromise among both citizens and elected officials. At the popular level, a candidate cannot get elected out of a single-member district unless she or he can persuade a broad coalition of voters, with initially very different preferences, to join together in support of her or his campaign. Also, at the representative level, a legislator cannot enact a bill into law unless she or he can persuade a broad coalition of legislators who may be controlled by different political parties, to join together in support of her or his proposal. Such deliberation and compromise is necessary for democratic sovereignty. However, persons who have no interest in deliberation or compromise, who refuse to engage others politically, can use the same inertial institutions and processes that generally foster coalition building and political engagement to block proposals around which the sovereign will could coalesce under slightly different factual circumstances and institutional arrangements. This is a famil­iar form of distortion in democratic politics, at both the popular and represen­tative levels.^[381]

In this context, review over the constitutionality of the statute that is performed by the Constitutional Court involves a group of people who seem­ingly enjoy no democratic legitimacy - certainly no democratic legitimacy to impose their preferences on citizens generally - but who nevertheless thwart the policies of democratic branches of government. This type of constitution­ality review, after all, invalidates democratically enacted - from both proce- duralist and functionalist views - laws. Here, the liberal defense against charges that such constitutional adjudication is antidemocratic proposes that constitutionality review enforces the limits of democratic authority against overreaching by the democratic branches of government. Constitutionality review of this type thus prevents the political branches of government from imposing illiberal policies, specifically from violating fundamental rights to equal treatment and to individual liberties, in ways that they have no legitimate authority to do.

As Dworkin says on this theory, the practice of constitutionality review of this type �assumes that the majority has no right to act unjustly, to abuse the power it holds by serving its own interests at the expense of a minority’s rights.’^[382] Dworkin states: �[J]udicial review rests on a qualification to the prin­ciple of majority rule - the qualification that the majority can be forced to be just, against its will.’^[383] Thus, the liberal theory in principle justifies constitu­tionality review of all matters that invoke liberal ideals of equality and liberty,^[384] and places the Constitutional Court in a competitive rather than a cooperative relationship with the more straightforwardly democratic branches of government. Yet, it should also be noted that, if a subject is suited to adju­dicative resolution on the liberal view, then it must involve fundamental rights, in which case it is beyond the authority of democratic politics.

An alternative theory of democratic legitimacy of the constitutionality review conducted by the Constitutional Court over the statute enacted by the legislature observes that, because a statute is hard to revise once it is passed, laws that currently govern us would not and could not be enacted today, and that some of these laws not only could not be reenacted but also do not fit within our whole legal landscape. It observes, in other words, that the statute may, and on some occasions inevitably does, suffer democratic deficits of the very sorts that the republican account of democratic sovereignty articulates, and that constitutionality review over this type of statutes can help address these democratic deficits, not by irreversibly striking down such laws and replacing them with the alternatives approvable by the Constitutional Court, which would repeat the failures of the liberal view, but rather by triggering the democratic engagement that the status quo lacks, by intervening in the politi­cal process in ways that induce the legislature to reconsider statutes that are out of date, out of phase, or ill-adapted to the legal topography.^[385] This demo­cratic approach to constitutionality review over statute therefore avoids the claims that cast doubt on the liberal view. Its account of the consequences of constitutionality review over statute that there should be a reciprocal act between the Constitutional Court and the National Assembly all in the service of democratic engagement avoids the implication that the Constitutional Court should take over entirely any area of law that it touches. Thus, the democratic theory places constitutionality review over statutes by the Constitutional Court inside rather than outside the democratic political process and casts it as completing rather than limiting democracy.

III.