[How About This Book] 'Overlapping Consensus' Embracing Our Society

Former Supreme Court Justice Kim Young-ran Reviews Plenary Court Rulings
Including the Decision on the Teachers' Union's Illegal Status and Conscientious Objection to Military Service
Examining American Philosopher John Rawls' 'Political Liberalism'

Limited acceptance of inheritance is a system in which an heir applies to the family court to repay the deceased's debts only within the limits of the property acquired through inheritance. The heir must apply within three months from the time they become aware of the fact that they are inheriting for the limited acceptance to be recognized. However, if the heir later discovers that the inheritance debts exceed the inherited property, they can reapply for limited acceptance within three months from the date of recognition; this is called special limited acceptance.

In November 2020, a Supreme Court plenary session ruling related to special limited acceptance sparked controversy. At that time, Mr. A, who became an heir at the age of only six, filed a lawsuit after reaching adulthood, claiming that he could not be held responsible for his father's debts as he recognized them late. The Supreme Court plenary session ruled that since Mr. A’s legal representative, his mother, was aware of the father's debts while he was a minor, Mr. A could not be recognized as a case of special limited acceptance. Ultimately, Mr. A had to bear the debts of his deceased father from when he was a minor, and as the plenary session ruling caused controversy, the National Assembly passed a revision to the Civil Act in December 2022 to prevent the inheritance of minors' debts, ensuring that cases like Mr. A’s would not recur.

Former Supreme Court Justice Kim Young-ran expresses regret in her recently published book, Freedom Beyond Judgment, that the welfare of minors was not sufficiently considered in the plenary session ruling. While legal interpretation is important, she argues that more care should have been given to Mr. A’s situation, who was burdened with debt at an age when it was difficult even to recognize his father’s death. Prior to the plenary session, Mr. A had won in the first and second trials.

In Freedom Beyond Judgment, former Justice Kim reviews the Supreme Court plenary session rulings and examines their significance. She covers rulings on issues such as the expulsion of the Korean Teachers and Education Workers Union (Jeon-gyo-jo) from legal union status, conscientious objection to military service, gender correction for transgender individuals, sexual self-determination of soldiers, real estate name trusts, and grandchild adoption. Kim Young-ran has consistently published books analyzing Supreme Court plenary session rulings. She published Rethinking Judgments in 2015, Judgments and Justice in 2019, and this is her third book.

In Freedom Beyond Judgment, she examines the Supreme Court plenary session rulings based on the theory of “political liberalism” by American political philosopher John Rawls (1921?2002).

Rawls viewed modern democratic societies as communities where citizens hold irreconcilable differences in religious and philosophical worldviews as well as moral and aesthetic values?in other words, communities without a unified belief system. Therefore, Rawls aimed for a reasonable pluralistic society where “contradictory but reasonable” belief systems coexist. To achieve this, he emphasized the need for “overlapping consensus” through “public reasons” in the political sphere (politics here meaning not power struggles between parties but core constitutional matters and fundamental justice issues).

Former Justice Kim explains that overlapping consensus means an agreement established despite differences in values, worldviews, and beliefs about truth, based on common ground related to social order. The welfare of minors mentioned earlier in the special limited acceptance case can be seen as related to overlapping consensus.

Rawls argued that overlapping consensus means finding common ground among comprehensive belief systems and that it must be independent of religious, philosophical, and moral belief systems.

Kim explains that in Korean society, communal notions based on traditional ideas such as Confucianism remain strong, making it sometimes difficult to draw out overlapping consensus. In this context, she reviews a 2008 plenary session ruling related to the head of ancestral rites. The plenary session ruled that prioritizing male heirs such as the eldest son or eldest grandson as the head of ancestral rites could no longer be considered reasonable.

While acknowledging that Korean society is moving toward a pluralistic society where diverse belief systems are expressed, Kim expresses skepticism about whether it is the form of reasonable pluralism that Rawls envisioned. She points out that as various voices emerge, public opinion on many related issues has escalated into extreme confrontations, paradoxically narrowing the space for diverse voices. As a result, she worries that society has become one where only voting remains without discussion, and securing a majority by attracting supporters is what matters.

Reflecting these concerns, Kim mentions in the preface of her book the novella The Wall of Rumors by novelist Lee Cheong-jun, published in 1971. The story is based on a time when ideological conflicts between left and right in Korean society peaked, and men would break into homes at night, shining flashlights to check which side people were on. Kim says, “It seems that in this era, everyone is shining flashlights at everyone else,” adding, “Not only the established media but also many individually operated media are holding flashlights and asking, ‘Whose side are you on?’”

Because of this era of division, Kim focuses on the Supreme Court plenary session as a form of public reason capable of drawing out overlapping consensus.

Rawls greatly influenced modern political philosophy through works such as A Theory of Justice (1973) and Political Liberalism (1993). Harvard professor Michael Sandel, famous for Justice: What’s the Right Thing to Do?, rose to prominence after publishing Liberalism and the Limits of Justice in 1982, which criticized Rawls’s theory of justice. In chapter 6 of Justice, Sandel also expresses critical views on Rawls’s theory of justice.

It is interesting to see Rawls’s influential theory in modern political philosophy applied to domestic rulings. However, unfamiliar legal terminology makes it somewhat difficult to clearly grasp the contents of the plenary session rulings.

Freedom Beyond Judgment | Written by Kim Young-ran | Changbi | 248 pages | 18,000 KRW

This content was produced with the assistance of AI translation services.