South Korea has been one of the most successful newborn republics since 1948, and yet, since the new millennium, it has been embroiled in a controversy over the issues of constitutionalism and successful government, with the public expressing concerns about transparency, democracy, and competitiveness. Of particular concern is the public's perception of constitutional government. The purpose of this study was to better understand the elements of governmental success and best practices for constitutionalism in the country's framework of democratic experimentalism. Three prongs of inquiry rooted in the democratic experimentalist tradition (lessons learned from private governance, national institutions, and new concepts of rights) were examined. Dorf and Sabel's theory of constitution of democratic experimentalism was used to help answer the research question, which was, how democratic experimentalism supports constitutional government in South Korea. Data were collected through interviews with 16 legal/government professionals under the age of 40, and then coded and thematically analyzed. Findings identified 9 identified key themes as vital for the success of constitutional government in South Korea. Results suggest that constitutionalism and democratic experimentation need to be considered together when seeking to understand the South Korean constitutional government. Implications for positive social change include helping future investigators to better interpret the Korean constitutional system and supporting decision makers and public servants in making better informed decisions to further more democratic and transparent government.

Amidst the global wave of democratization, modernization, and economic engagement during the 1980s and 1990s, the traditional tenets of constitutionalism have proven to be unwieldy dogma for States undergoing periods of rapid transition. In order to retain the administrative capacity to steer – rather than merely adapt to – political and social change, numerous transitioning States have adopted a new paradigm of constitutionalism, namely transitional constitutionalism, characterized by a centralized and streamlined structure of governance. However, in many instances, including Korea’s post-division transitional history, this model has demonstrably undermined fundamental human rights protections. In this thesis, I propose a hybrid constitutional paradigm for unification in Korea (another form of State transition) which seeks to balance the dual objectives of effective governance and human rights protection. I do so by examining and critiquing the core principles of traditional and transitional constitutionalism, outlining the human rights issues that the unified Korea will likely confront in its constitutional trajectory based on an analysis of Korea’s political, social, cultural, and constitutional history, and finally proposing a hybrid model of constitutionalism that utilizes an institutional approach to prevent violations of human rights in the unified Korea while allowing the State to retain governmental efficiency during transition. / Thesis (Master, Law) -- Queen's University, 2013-09-30 11:35:33.362