Reviewing the Exigencies of National Defense: Citizens’ War-Related Rights and Duties

Abstract

Some constitutions’ pacifist vocation is reinforced by an express renouncement to maintaining a standing army, like in Japan’s 1947 text or Costa Rica’s 1949 document.¹ By contrast, South Korea’s principled commitment to preserving peace does not obstruct its constitutional readiness for war. This chapter analyzes the role of the Constitutional Court of Korea in cases calling into question the exigencies of national defense. The dispute over the “national,” which constitutes the subtext of the court’s intervention, has led various South Korean military initiatives to be constitutionally contested on the ground that they represented aggressive and unfavorable behavior toward North Korea and the perspective of reunification. While these issues reflect that constitutional adjudication has been increasingly invested as a site of political contention, they also highlight how the court has prevented a dispute about competing national imaginaries from unfolding on its stage. Indeed, the court has either refused to recognize as justiciable the claims advanced by litigants in military cases or censored challenges to the compulsory conscription system, thereby reinforcing the prescriptive distribution of roles that the duty of national defense assigns to citizens in contemporary South Korean democracy.