Legal Norms in a Confucian State (review)

¦Book Reviews Legal Norms in a Confucian State. By William Shaw. Research Monograph , no. 5. Berkeley: Institute of East Asian Studies, University of California, 1981. Concentrating the searchlight of inquiry upon the meaning and significance of myths is a legitimate province of historians, creating or furthering myths is not. Yet, sporadically one sees even disciplined historians becoming oblivious of this distinction and wittingly or unwittingly creating or transmitting myths and claiming for them the status of historical verities. William Shaw's painstaking and lucid work Legal Norms in a Confucian State—it could just as justifiably have been given the title Confucian Norms in a Legalist State—is, inter alia, a highly skillful and often cogently reasoned argument against a major myth about the Yi dynasty (see pp. xv, 267, 310). The myth centers upon the relationship between virtue (or morality ) and law in traditional Korea. Still fashionable with some scholars— and one I myself had once accepted uncritically—it advances the thesis that Yi Korea's political system rested on the foundation of a widely shared social consensus about the superiority of rule by moral suasion over rule by law. According to this myth, law was to be kept essentially in reserve as an inferior tool of government, as a necessary evil, to be invoked only when moral rule by virtuous kings and virtuous civil servants showed signs of strain or failed to maintain order and harmony in the society. Law was thus a distasteful option of the last resort. What was of prime importance in governance, ultimately, was not effective, well-defined, rational institutions but good, "sensitive," 315 316Book Reviews public-spirited men aiding a concerned and benevolent monarch by exercising wise judgment in his name. Their learned understanding, their intuitive discretion in determining the needs of the society, and their personal examples of upright and righteous conduct were expected to inspire in the populace an abiding trust in the state and a willingness not to disrupt the fabric of equilibrium and stability of society. Under this dispensation, it is argued, there could only be dissonance , not consonance, between rule by virtue and rule by law. The warm, paternal, circumstantial and flexible rule by virtue was logically in conflict with the cold, indifferent, prefixed, and predictable rule by law. Although both were necessary in governing society, they could only be used under an asymmetrical arrangement. Virtue had primacy over law. Excessive or a too-ready recourse to law by either the government or the people was incontrovertible evidence of moral decline in society at large. A wise ruler was therefore expected to strive to restore the properly superior position of rule by moral suasion. All students of East Asian history are familiar with variations of this recurrent theme. It began as part of the Confucian-Legalist confrontation in ancient China. To western students of Korean history, the most articulate discussion of its role in the Yi dynasty was first offered by Hahm Pyong-Choon in his book The Korean Political Tradition and Law. 1 Hahm argued that Confucianism's disdain for law and its placement of a premium value on morality in government, coupled with its stress on a strictly hierarchical society, virtually released the Yi dynasty's ruling class from all restraints on its power. Rule by moral suasion often degenerated into rule by upper-class caprice and thus became a camouflage for their self-aggrandizement at the expense of society. Law in Yi Korea was transformed into a particularistic handmaiden of the country's "virtuous" establishment. While Hahm's observation on the oppressiveness and exploitativeness of the ruling class are confirmed by abundant historical evidence, his attribution of this phenomenon to the virtue-law dichotomy was seriously flawed for several reasons, as Shaw demonstrates in his study. First, since much of Yi Korea's politico-legal system and culture was adapted from China, Hahm uncritically assumed that an understanding of the Chinese classics could reasonably explain the operative principles of traditional Korean institutions. Second, he concluded just as readily that a few oft-quoted statements taken out of context from the classics represented their essence and somehow constituted a reality transcending time and space. Not the...