Law, by all accounts, ought to be a cold and objective formula.
We believe that a judge should eliminate all emotion and measure cases strictly by the literal text written in the legal code—a doctrine known as legal positivism—thereby keeping the scales of justice perfectly balanced. Only then, we assume, can an individual live a predictable life before the law and remain free from the tyranny of a judge’s personal subjectivity.
Yet, observing real-world courts often leaves us tilting our heads in confusion. In the landmark rulings of constitutional courts or supreme courts, vague and blurry phrases like "the spirit of the Constitution," "the defense of democracy," or "the public welfare" appear as regular guests. Why does the law, which should resemble a mathematical formula, shake its own scales based on such abstract and subjective values? Are judges perhaps crossing a convenient magical stepping stone called "the spirit of the Constitution" simply to hand down verdicts that suit their own tastes?
If we trace the history of this justifiable suspicion, we come face-to-face with a dilemma of law written by humanity in blood.
Hitler: The Monster Sired by Thorough Legal Positivism
In jurisprudence, an "objective law" faithful only to the literal text is called Legal Positivism. It is an attitude dictating that because even a bad law is still a law, any legislation enacted through due process must be executed verbatim, without mixing in human conscience or subjective notions of justice. On the surface, there seems to be no criterion more clean or objective than this.
However, humanity witnessed the worst ruin in its history brought about by this very adherence to absolute objectivity: Nazi Germany under Adolf Hitler.
Hitler did not seize power by launching a coup d’état with guns and bayonets. He became a dictator by flawlessly following the legal procedures of the Weimar Constitution—which, at the time, was the most sophisticated and positivist framework in the world. The laws used to slaughter the Jewish people and purge political opponents were also "verbatim laws" lawfully passed by the parliament. The Nazi judges of that era silenced their private consciences and faithfully executed those wicked laws in strict accordance with legal positivism.
Following the war, humanity engaged in agonizing self-reflection. We realized that if the fundamental spirit and values of humanity—such as human dignity and justice—are evaporated from the law, the law can mutate into a legalized instrument of murder at any given moment. This is precisely why modern constitutions began desperately clinging to the blurry "values and spirit" hidden behind their literal clauses.
The Law Remains in the Past, While Reality Races into the Future
Another reason why the constitution invokes ambiguous values is that the language of the law can never catch up to the speed of reality.
Article 17 of the Constitution of the Republic of Korea stipulates: "All citizens shall not be infringed upon their privacy of life and freedom." This single sentence seemed flawless at the time the constitution was framed. But in an era where smartphone algorithms eavesdrop on our private conversations to display tailored advertisements, and where AI replicates our voices, can this sentence alone safeguard our privacy? The ancestors who penned the constitution did not even know the words "algorithm" or "deepfake."
If a judge were to stubbornly insist on absolute positivism here, arguing, "Since the words ‘algorithm’ or ‘AI’ do not exist in the literal text of the constitution, we cannot punish this," the law becomes a dead text incapable of wiping away the tears of reality. Ultimately, a judge must fish out the ambiguous "spirit of the Constitution"—the notion that technology must not weaponize human beings as mere tools—from behind those dry words, thereby creating a law for a new era.
An Eternal Homework Nonetheless: Judges Are Human Too
This does not mean, however, that the blade labeled "the spirit of the Constitution" is unconditionally righteous. As you have rightly feared, it is a profoundly double-edged sword. Faced with the exact same legal clause, a conservative judge will tilt the scales by calling "the protection of private property rights" the supreme spirit of the constitution, while a progressive judge will do the same by calling "the right to a life worthy of a human being" the ultimate spirit. Because those seated on the bench are also flawed human beings influenced by the trajectories of their own lives and the atmosphere of their eras, a constitution can never become a 100% objective scientific formula.
In the end, to deny judges an omnipotent subjectivity, modern constitutionalism forces them to painfully and fiercely demonstrate through judgments spanning dozens or hundreds of pages why they chose that specific blurry value. If that reasoning is flawed, it faces scathing criticism from academia, the media, and the citizenry, and is eventually corrected in subsequent rulings.
The scales of a constitution are not an objective balance fixed in place by a cold magnet. They are closer to a "dynamic see-saw" that precariously balances itself amidst the fierce debates and suspicions of the members of society.
The sharp eyes that constantly demand, "Is this verdict truly objective?" are the heaviest and most precious counterweights keeping that ambiguous scale from collapsing entirely into the tastes of power or the dogmatism of a judge.
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