Historicizing Same-Sex Marriage Debate in the Legal Periphery: Savigny, Nakagawa, and the Korean Marriage

Authors

Rama Hyeweon Kim, Harvard Law School

Abstract

Global advocates for incorporating same-sex marriage into local family laws often argue for it using universal language of rights and nondiscrimination. They also contrast progressive countries with those that are behind in this respect. This Article resists a thin comparison driven by a universalist impulse and instead engages in an exploration of “local” family law in South Korea.

Using the recent Supreme Court decision that extended spousal coverage of national health insurance to same-sex couples as an entry point, this Article offers brief histories of two distinct legal ideas and developments within Korean family law, both involving a deep and constant engagement with foreign laws. These two deeply rooted, conflicting legal ideas shape the ongoing conversation about same-sex marriage.

The first story traces back to the German jurist Friedrich Carl von Savigny (1779-1861)’s idea that family law is part and parcel of a moral, customary, and therefore mandatory order that regulates one’s status. Introduced via Japan and central to classical understandings of marriage in Korean legal thought, this idea has persisted in Korea and is utilized in arguments against same-sex marriage. The second story traces a contradicting trend in Korean law: the jurisprudence of de facto marriage, linked to Japanese jurist Nakagawa Zennosuke (1897-1975) and understood to embrace modernist tendencies. Contrary to the classical notion that family law is customary and mandatory, de facto marriage eases certain rules of marriage and embraces non-conventional families.

More fundamentally, de facto marriage represents the fragmented existence of marriage in law and reveals the contradictions in the classical conception of marriage as stable and integrated. Revisiting the recent Supreme Court case with this insight, the Article concludes by cautiously endorsing the pragmatic, localized, yet progressive reform strategy used by Korean marriage equality advocates in the recent case.

Volume

33

Issue

2

Recommended Citation

Kim, Rama Hyeweon (2024) "Historicizing Same-Sex Marriage Debate in the Legal Periphery: Savigny, Nakagawa, and the Korean Marriage," Minnesota Journal of International Law: Vol. 33: Iss. 2, Article 1.
Available at: https://scholarship.law.umn.edu/minn-jrnl-intl-law/vol33/iss2/1

Rights

http://rightsstatements.org/vocab/InC/1.0/