Authoritarian Legality after Authoritarianism: Legal Governance of Parties and Elections before and after Democratic Transition in South Korea

The Republic of Korea (ROK) was designed as a Cold War democracy. It started as an electoral regime with formal commitments to democratic values, but institutions designed to keep the state secure also imposed limits on domestic political struggle. From the ROK’s founding in 1948 to the political liberalization of 1987, the political system shifted between orders that might be labeled more democratic or more autocratic. A legal framework for governing party and electoral politics emerged in the country’s first fifteen years. This framework includes rights and restrictions related to formation of parties, conditions for disbanding parties, stipulations concerning party organization and activities, laws on monitoring elections, and detailed rules on election campaigns. Elections thus came with an elaborate legal structure, even as rulers – to varying degrees – deployed extra-constitutional and extralegal measures for dealing with opponents. Why were such laws developed and did they matter? What was their fate after the democratic transition? These questions point to broader themes related to authoritarian legality. Can an authoritarian regime make a commitment to rules governing electoral and party politics? Why would it make such a commitment? And why would it revoke one? What happens to that legal framework after a democratic transition?In this chapter I examine the various tools that have been used to govern the political sphere from the country’s establishment to the present. I trace the construction of the legal framework and weigh the significance of this framework versus other tools for governing parties and elections in different time periods. My main theme is a striking continuity in the legal framework guiding party and electoral politics. In particular, I point to the way legal innovations that reached their final form in 1963 under Park Chung Hee became the basis for governance of post-1987 democracy. Given the illiberal purpose of the framework, this continuity stands in sharp contrast to the liberalism that pervades many sectors of contemporary South Korean society. Through the South Korean example, this chapter points to ways that structures associated with authoritarian legality may persist beyond the political conditions in which they were created.