Towards Reconciling Law and the Culture of Happiness in Korean Society

On February 26, 2015, the Constitutional Court of Korea (the “Court”) decriminalized adultery pursuant to the constitutionally protected privacy of autonomous persons, characterized from the explicit “right to privacy” and the right of sexual self-determination implied from the “right to pursue one’s happiness” enshrined in the Constitution of the Republic of Korea. Despite acknowledging a legitimate governmental purpose in regulating adultery, the Court majority determined that “[s]exual life and love is a private matter, which should not be subject to the control of criminal punishment.” The Court’s reasoning followed because traditional family values and interests in sexual monogamy have declined in recent years “along with rapid spread of individualism and liberal views on sexual life,” such that there is “no longer any public consensus regarding the appropriateness of criminalization of adultery” and Korean society is “changing into one where the private interest of sexual autonomy is put before the social interest of sexual morality and families from the perspective of dignity and happiness of individuals.” The ruling credits the philosophy of liberalism, and more particularly its extreme expression in decisionism, which supports the belief that moral proposals are based on what individuals are willing to choose and commit to, such that rights precede any set notions of good. Decisionism credits little to no significance to the difference between government by the will of the people and government by the self-oriented and self-serving whim of the people. The decision of the Court also reflects prudent caution to distinguish the recognition of any helpful general deterrence effect of justified punishment from the questionable attempt to substantiate criminalization merely to use the socially deviant person as a means, and not as a Kantian end, to function as a human shield for societal self-defense. If a person’s acts represent the socially acceptable, though marginal, desires of a large portion of the public, the imposition of criminal penalties as a deterrent is arguably problematic. Penal sanction may not be justifiable in an environment of popular sovereignty when the culture has so deteriorated that it no longer supports the law. However, government should not fall back on pragmatic fatalism, with respect to the growing divide between law and public morality, by deferring to the opinion of citizens as to what leads to utilitarian happiness. Rather than merely resorting to judicial abeyance of the indiscriminate sexual mores of the population, the current state of affairs calls for dialogism, or a collaborative and consultative dialectic between societal constituents that leads to a normatively balanced and consistent consensus concerning the virtues and values that the progressive Korean culture upholds.