Abstract

This is the story about how the most legal investment/capital-deficit country ended up actively catching up the general global trend of “juristocracy” (Hirschl 2004), and the historical role of lawyers in the process. After briefly introducing basic theories explaining the legal profession, the paper aims to discuss the origin of Korean legal profession and follow up how the position of Korean lawyers has changed by analyzing varying roles played by Korean lawyers in each scope of time.
Its root started from colonial legacy from Japan. After the emancipation, lawyers began to surface as the implantation of U.S-origin liberal democracy and rule of law began under the U.S. military government. The grave danger of basic human rights under the military dictatorship, and developmental state provided opportunity for lawyers to renew their position as guardians of the civil society, defending for common good. Active lawyer-statesmen faded as malfunctioning of U.S-oriented legal system began to emerge, and commercialism and globalization mingled upon each other. The paper highlights the fundamental importance of the legal profession by demonstrating how vulnerable a lawyer can be and how destructive it can be for a society as a whole.

I. Introduction

Shakespeare who himself engaged in legal occupation, left famous quotes on lawyers in many of his works. [King Henry VI] is one of them which is a story about struggles between the lords and uprising by Jack Cade in the midst of the king’s withering power during the War of the Roses. In Part II, Scene 2, there states, perhaps the most famous quote from Shakespeare about lawyers; “The first thing we do, let’s kill all the lawyers”. Spoken by Dick the Butcher, a follower of anarchist Jack Cade in the play, this line is used as a lawyer-bashing joke to point out the reality of lawyers being a purely commercial professional class and double-faced advocates of authoritarian regime in the past.
Doubtlessly, people in legal profession are vulnerable to a variety of temptations and their roles and reputation differ among countries and even inside a country. This paper starts from that very question of what kind of historical role lawyers have played in Korea and how it has changed. The timeline is divided into three phases – during the colonial era, post-Cold war developments, and present days of globalization – to trace back the roots of Korean lawyers and their roles in society.

II. An overview of legal profession: from functionalism to double-agent theory

Before moving on to the topic, a brief understanding of fundamental nature of the legal profession would be desirable. Up until the 1970’s, functionalist approaches had dominated sociological studies of the legal profession, and under these approaches, professions were viewed as social phenomena that emerged organically to mediate between individuals and the large institutions of modern society . Because professions were treated as a necessary feature of the modern social landscape, the question of how they came on the scene did not arise, and it obscured the problem of professional power .
In the latter part of the 20th century, more attention was put to ‘professionalism’. Starting from the Chicago School of Sociology, more discussion was devoted to how individuals make or accomplish professions to obtain political power, material rewards and social status . People with their professions are distinguished from other occupations and are expected to “use their expertise in the interests of the individuals they serve as well as for the good of society ”.
The most comprehensible and convincing explanation on legal profession seems to be that lawyers are double-agents serving strong rulers at the same time as they moderate them . The double-agent theory stipulates that the role of lawyers suggesting ideas and reforms for democracy and rule of law without excessively threatening the status quo. Lawyers thus, belong to extraordinary profession that can enlarge a small action into a massive outcome on society as a whole because;

“[L]awyers have long been specialists in brokering relationships where political and economic elites give up some portion of their power in exchange for credibility in the guise of the rule of law. Incentives for the exchange include the legitimacy that is provided for positions of power and the application of rules that help to secure that power.” (Yves Dezalay and Bryant
G. Garth 2010:4)

III. Colonial governance and the formation of legal profession in Korea
1. Korean legal profession tied to Japanese colonialism

In some point of their colonial rule, colonial powers strive to attain a certain degree of legitimacy in their colonies. The need to suit the appetite of local elites is critical in bringing out friendly attitude and cooperation from them. Local elites and young modernists who studied law abroad demanded the colonial power to exert more law and legitimacy in the country, and this co-optation process made a perfect use of law in taming the local elites and stabling the colonial power’s dominance .
The construction of legal profession in Korea depended on Japan and was forced to suit Japanese taste, and thus there was weak legal, social, political capital that could build legitimacy in the true sense. Accepting Western legal system in Meiji era, Japan put efforts to form such a system in Korea, too. It forced Korea to declare ‘fourteen reforms’ in 1895, and created Legal Training Institute (LTS) the same year, which became Kyong Seong Law College, to produce prosecutors and lawyers . Bosung College, established in 1905, provided legal education and was later named Bosung Private Law and Commerce School. Professors from Japan came to teach at first but were gradually replaced by Korean professors. After the independence, Kyong Seong Imperial University was changed to Seoul National University, and Bosung College to Korea University.
Thus, until the 1950’s, the Korean jurisprudence imitated that of Japanese and was too closely identified with Japan. Korean lawyers could not claim any position of leadership in Korea’s independence from Japan with very little room left for private lawyers in the state or the economy . Even after independence, the United States made a conscious decision after the World War Ⅱ to resist the Korean left in part by maintaining the central role of the conservative, Japanese-trained civil service in governing the state and fighting against communism .

2. Reconstruction of Korean judicial body by the U.S. military government

European powers rooted their models of law and type of legitimacy to Latin America and some Southeast Asia countries such as India by colonial governance and economic exploitation. In the case of United States, the social status of lawyers in U.S. was undisputed since the 18th century, and they kept playing a prominent role in establishing the State and the economy. The U.S. approach to colonialism was very much a product of this emerging legal elite’s evolving state strategy and U.S. used its resource to try to pattern colonial governance on the United States. U.S. managed to construct a personnel consisted of lawyer-statespersons in setting up U.S. foreign policy who figured a way of devising the so-called ‘anti-imperialist imperialism’, setting forth democratization and open market as its civilizing mission.
The U.S. military government in Korea also embraced these basic principles and played a key role in the reconstruction of the Korean judicial structure. The restructuring poses a unique implication in that not only was it a way of fulfilling national interest for U.S. but also it was a matter of course for Americans that needed to be done. Establishing an independent judicial body was a doctrine of the American constitutional system. A group of Korean lawyers went through this hectic restructuring process by U.S. military government in the midst of emancipation, and became powerful advocates of democracy and rule of law originating from the United States . As the lawyers experienced an untold rise in their social status along with the new legal system, discussions on democratization of the judiciary, and civil participation in the legal system lost their way. Consequently, incompetent, submissive lawyer-bureaucrats with extorted privilege of judicial independence were left to confront the corrupted authoritarian power.
IV. Cold War and the invigorated Korean lawyers
1. During the Cold War

The lawyers in Korea were put to a much unstable position with the Cold War. Ideology-blinded military regimes eliminated elite lawyers in their fight against communism and technocrats were praised with the importance of science and rising economic development. Technocrats were regarded much more useful and important compared to the tiny legal profession which seemed to cling on to their prestige by maintaining the monopoly by permitting only a small number of successful candidates in the bar exam.
Added to this was a relatively weak position of law itself in U.S. foreign policy. U.S. was less bothered to exert its legitimacy and rule of law in Korea than in the past. Part of this can be explained by the change in international relations policy adjusted by realists such as George Kennan and Hans Morgenthau. They became the dominant stream during the Cold War era and criticized those confusing legalism and moralism as the same concept. The foremost objective being fighting off communism, many think tanks supported cultural cold war programs guided by the CIA, and ‘modernization’ of campuses of elite schools masked other potential tensions and conflicts .

2. Post-Cold War era

After the Cold War, lawyers in Asia were highly influenced by U.S-oriented social entrepreneurship role in pursuit of public interest, and Korea was not an exception. In spite of this change, lawyers confronted their unjustifiable historical traces. The public remembered their root to be very intimate to that of Japan, and predicted them to remain silent against military regimes. The building of credibility began when some activist lawyers, called ‘heroic lawyers’ gathered to fight against the military dictatorship in the 1960s . Below grasps how the reputation and role of Korean lawyers started to change;

“Lawyers who sought to defend targets of the repression of the Park Regime, particularly after martial law in 1972, did not have much success, and they were themselves often arrested and persecuted, but the activities kept alive and inscribed a positive image of the lawyer in
the public eye” (Kim, Jae Won 2007:62)

With surging international human rights movement and the founding of Amnesty International’s Korean office, the Korean Bar Association built unprecedented reputation as being a critic of authoritarian power.
Human rights activist lawyers began to pioneer themselves to the political arena. These lawyers had experienced the coup d’état, devastating repression from military governments themselves, and were more than willing to be the guardians of individual human rights. They took the lead in forming an activist lawyers-based organization called Minbyun under the name of ‘lawyers for democratic society’. The organization expanded, starting from fifty lawyers, and gained political weight, acting on behalf of civil society. As in other Asian countries, Korea was undergoing the story of human rights lawyers turning to lawyer-statespersons , and some members of Minbyun ended up being appointed as high-ranking bureaucrats especially under the presidency of Roh, Moo-Hyun.
Together with the establishment of the Constitutional Court, the activism then shifted to NGO society and resulted in the surge of newly created NGOs. Some are still active in their field and People’s Solidarity for Participatory Democracy which was founded by present Seoul Mayor, Park, Won-Soon, who previously worked as a public prosecutor, then a human rights lawyer is one of them. The law-inspired civil society organizations with proactive lawyers at the lead, regardless of their ideological background proved that the general public could be mobilized to use law as a weapon to stand against the state .

V. U.S.-oriented legal system and globalization
1. The developmental state and U.S-influenced corporate law firms

Korea is evaluated to have gone through surprising developments in that with little legal investment and legal legacy of colonialism. A very weak legal profession has managed to gain a social reputation and produced a new generation of social entrepreneurship . It followed U.S-oriented legal system which can be best described with the concept of liberal democracy and giant corporate law firms.
After the end of all meaningless quarrels over ideology, Korea quickly settled on U.S-styled liberal democracy. This was the ideology that seemed most reasonable and fit for lawyer-statesmen in Korea who were largely influenced from the U.S., and thus was thought so by the public. Naturally, Korean legal system was modeled upon the U.S. legal system and formed its basic structure along with the developing state.
In 1972, an unprecedented attempt to create a law firm-what is now Kim & Chang- resembling U.S. corporate law firms was initiated by two Korean judges educated in the United States. It became a sort of trend for promising lawyers and judges to attain LLM or JD degrees from law schools in the United States, and come back to work as an ‘international lawyer’ in law firms. This created a new type of lawyer group referred as corporate law firm lawyers, who actively embraced the U.S. method of operation and organization. Lawyers supported an agenda that seeks to restructure the Korean state toward a role more akin to that of the United States, and at the same time they were also very well connected to the state . With democratization and economic liberalization on progress, corporate law firms have experienced incredible expansion of their sphere of work, and are expected to keep expanding.
Criticisms on Korean corporate law firms were raised due to excessive prevalence of M&A among law firms resulting in a small number of huge corporate law firms. These firms took over the overall area of the field by making full use of their lobbying power and powerful personnel. Some critics point out to the danger of massive conglomerate law firms falling to work as a shield for the dominant class as they seek profit as the foremost objective, losing their legal idealism of independence and capacity to mediate among stakeholders .

2. Transnational legal regimes

In the past, the creation and adoption of law has been limited to national project, but with blurring national boundaries in all sectors, structuring international legal regime is one of the initiatives that countries put much effort on. With globalization, lawyers have been at the forefront of creating new transnational legal institutions, adapting to local legal norms, stratagems and maneuvers to meet the demands of expanding global markets and increasingly robust international regimes . In fact, the making of international consensus on basic principles and the building of rule of law prevailing over the law of jungle in the international society can be considered a primary step. Even within a country, lawyers face proliferating opportunities the flow of globalization has provided them in legal, political, and economic sectors.
The opening of legal markets has been a controversial issue in Korea which began to shake the monopoly Korean lawyers has been enjoying. Competition from Western mega law firms and lawyers from abroad pose a new challenge to traditional legal market in Korea. The lack of equilibrium between openness in legal market and that of the rest of the sectors brought need for more liberalized legal market. The demand from the public for better quality of legal service also increased. Throughout the world, the movement asking for open legal service sector be is inevitable and has been accelerated by FTAs.
The legal system in Korea found its place but with serious malfunctioning, worsened with globalization. Previous bar exams were becoming unnecessarily difficult due to excessive competition among candidates, urged to attain the ascent of status by passing the bar, giant corporate law firms aggravated commercialistic legal culture, and strict hierarchical bureaucracy system was being fixed. Lawyers faced a position where their prestige and monopoly remained but with less appreciation from the public for what they do.
In order to cope with internal defects and to alleviate shock from external challenges, Korea has undergone an important change in its legal education. Accepting shortcomings of the previous way of selecting successful candidates only by bar examination, and in order to adapt to surging waves of globalization, Korea has created graduate law schools with the bar as a qualifying examination. Starting from 25 graduate law schools with two thousand graduates, the fundamental change in producing lawyers is expected to translate Korean social capital into legal careers. The attention is turning to whether law school-gradated-lawyers could revive the golden days of respected profession.

VI. Conclusion

The quote, “let’s kill all the lawyers” in King Henry VI can be interpreted in two senses. The general public might have regarded lawyers as a group of assistants of the corrupted King, blind with avarice. Thus they would welcome the overthrow by Jack Cade, and eager to remove the lawyers. On the other hand, the quote may be homage to respected and distinguished profession of lawyers. The quote, spoken by a person described as “the head of an army of rabble and a demagogue pandering to the ignorant”, can be considered that as for the soon-to-be tyrants, first to get rid of are lawyers, a small group of people providing guidance and inducing enormous collective action from society. No phrase can possibly condense the significant, but vulnerable position of lawyers.
Korean lawyers have experienced these multi-dimensional roles throughout history. They overcame unjustified roots from the Colonial era and lack of legal capital, and voiced clamors from the lowest part of the society of its basic human rights. As scholars posit, human rights lawyers were praised as being natural architects of the democratic state. However, the scene began to change by the time the developmental-staged state settled and globalization seemed to be an obvious phenomenon. The ideals of lawyer were lost to a new trend of lawyer-merchant. The line between the two is so fine that it is not easy for one to distinguish which side he/she is on, making lawyers even more vulnerable.
Hopefully, in the foreseeable future, a lawyer would be a profession that soaks into the daily lives of the general public and be aware of which values to prioritize. Let us not kill all the lawyers.

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