ALSA 2025 meeting

One of the many German imports in South Korea’s constitution is the idea of ‘militant democracy (streitbare Demokratie)’. According to most commentators, as well as the Korean Constitutional Court, the term ‘free democratic basic order (chayumijujok kibonjilso)’, mentioned in the preamble and article 4, is evidence that the Korean constitutional order is committed to militant democracy. Indeed, this term is a literal translation of freiheitliche demokratische Grundordnung found in the German Basic Law, which has served as the textual basis for the proposition that postwar Germany’s constitutional order is not neutral and is willing to preemptively guard against ‘enemies of democracy’. This article intends to scrutinize the claim that Korea’s constitution is also dedicated to militant democracy. Specifically, it will interrogate the various ways in which ‘free democratic basic order’ has been used, misused, and abused by Korean courts and academics. By analyzing the historical changes in the constitutional text as well as the interpretations of the Constitutional Court, it will be shown that the term is the subject of massive confusion and misunderstanding. This means that approaching the Korean constitution through the German concept of militant democracy is liable to produce inaccurate and incorrect understanding. The article is thus meant to be an exercise in comparative constitutional law as well as a social and historical investigation into (mis)appropriations of legal ideology.