Article 311 of the Criminal Law of Korea states, “a person who publicly insults another shall be punished by imprisonment or imprisonment without prison labor for no more than one year or by a fine not exceeding two million won [approximately two thousand U.S. dollars].” While the defamation charge in Article 307 defines an offense in terms of public exposure for a specific fact (with an intention to defame other person) or the fabrication of a fact (which thereby defames other person), the “insult charge” in Article 311 defines an offense solely on the basis of the victim’s subjective feeling, that, is based on an accusation that he or she has suffered damage from verbal, behavioral, or literal expressions of another’s abstract judgment or derogatory expression, which depreciates his or her social value. In other words, a case of “insult” is constituted without involving representation or fabrication of a fact. But, imprisonment of one year or a fine of two thousand dollars for an “insult” which is nothing more than a victim’s subjective feeling? How can a victim’s mere emotional distress constitute a crime?
One way to respond to this case is to try to resolve the apparent incongruence between the institutional hardware of liberal democracy, entrenched in Korea after successful democratization about three decades ago, and the cultural software that operates it, which is still deeply informed by the Confucian habit of the heart. And as most political scientists suggest, the best way to do so might be to transform the Korean people attitudinally as well as behaviorally into liberal citizens who embrace certain reputational injury or emotional distress for a fuller exercise of freedom of expression to make liberal democracy there firmly consolidated.
Can’t [East Asian countries] have a robustly democratic polity (fully committed to the values of popular sovereignty and political equality) that is nevertheless grounded in the Confucian way of life—Confucian reasons, norms, and civilities?
But should Koreans (or East Asians for that matter) who understand the society as one large extended family and make sense of their social relations heavily in familial terms, thus deeming a public insult as the denial of familial-civic equality and friendship, undergo fundamental self-transformation in order to have a democracy? Can’t they have a robustly democratic polity (fully committed to the values of popular sovereignty and political equality) that is nevertheless grounded in the Confucian way of life—Confucian reasons, norms, and civilities? To return to our case, can’t they accommodate expressive liberty, one of the core liberal rights, to Confucian civility (or vice versa), thereby generating a notion as well as a practice of expressive liberty that is culturally relevant and democratically viable?
I answer all of these questions in the affirmative. Recent advocates of Confucian democracy often present it as starkly opposed to liberal representative democracy either by emphasizing the thick communitarian character of the Confucian way of life or by re-appropriating meritocratic elitism implicated in traditional Confucian politics. I object to both thick communitarian and elitist renditions of Confucian democracy. Instead, I draw attention to what it means to be a democratic citizen in the Confucian societal context. For instance, I believe that insult law, which embodies Confucian-communitarian moral sensibility, is still socially relevant in Confucian democratic society as it helps to moderate the vicissitudes of pluralist democratic life without suppressing the democratic right of expressive liberty. That is, in Confucian democratic civil society, insult law can be instrumental to cultivating the virtue of civility among free and equal citizens.
However, its occasional exploration by politicians and public officials to suppress the citizenry’s rightful criticism of their compromise of democratic civic integrity and abuse of power is a different story. When political leaders and public officials lack democratic accountability, that is, when they have failed to “account for” their political decisions and public actions, citizens have every right to demand from them reasons for their decisions and actions. When citizens have “insulted” political leaders and public officials by remonstrating with, admonishing, or even mocking them, they should be fully exonerated from the insult charge so that they can exercise their public freedom without fear. As such, the Confucian democracy I am proposing upholds popular sovereignty and democratic accountability without making the citizens there Western-liberals.