- Law and Justice in Korea: South and North
Korea's legal tradition, like others in East Asia, remains poorly understood by modern comparative lawyers outside the region. In taxonomies of legal systems, Korea is usually treated as a variant of the Chinese or Japanese tradition, or alternatively as a pure transplant from Western law, with little original to offer in terms of doctrine or theory. In this volume, Chongko Choi, a prolific and wide-ranging legal scholar at Seoul National University, provides an important corrective by drawing attention to Korea's distinctive legal history.
The volume consists of Choi's collected English-language papers on legal history and jurisprudence. While it is not designed to be a comprehensive overview of the topic, Choi's wide interests cover significant ground, including such diverse topics as an examination of the imagery of the Japanese and Korean supreme court buildings, a comparison of North and South Korean constitutions, and an account of the treatment of Korea by leading comparative lawyers in the West. The heart of the book is a temporally organized series of essays on traditional Korean law, modernization, and the contemporary legal system. Choi makes a number of interesting and effective moves, such as tracing Korean constitutional history since independence through the lens of Church-state relations, which illuminate Korean law in a new way.
Choi's major contribution is to situate Korean law in the broader context of an East Asian legal tradition, which he describes using the medieval European concept of the jus commune or common law. He sees the various East Asian legal systems as sharing certain institutional features and Confucian ideas about law, as well as a shared legal history. Choi traces the influences of Chinese Confucianism on Korea, the distinctive Korean adaptation of those influences, and the longstanding transfer of legal ideas from Korea to Japan, a flow whose direction [End Page 126] was reversed only in the waning years of the Yi dynasty. At the same time, he does not ignore Western influence, for example, the impact of the work of German scholar Johann Bluntschli on the Daehanguk Gukje promulgated by King Kojong in 1879, or the distinctive contributions of American scholar Owen Denny in developing Korea's claim for statehood in the international legal sphere in the late nineteenth century.
Placing Korea in the context of the broader regional developments actually serves to highlight its distinctive history and traditions. For example, in comparison with Meiji Japan, Choi emphasizes Korea's relatively greater debt to Anglo-American cultural and legal influences. He also notes the dominant influence of the German legal tradition that was sealed by the Japanese colonization. Korea's experience of legal modernization is intimately bound up with Japan's experience, and yet Korea's distinctive position as colonized, without its own independent access to continental sources, led to a different reception of Western law than occurred in Japan. It is also refreshing to see Choi's comparative treatment of North Korea and South Korea in the last part of the book. The only quibble with the regional focus is that it would have been of further interest had Choi included Taiwan in the comparison, since it alone among Northeast Asian jurisdictions shares Korea's colonial experience.
As a historian, Choi's focus is on intellectual and cultural influences rather than mere adoption of positive legislation. He emphasizes the distinction between formal legal institutions and the living legal culture, suggesting that traditional attitudes and ideas about law may well lag behind legislative developments. This broad approach also helps to emphasize Korea's distinct adaptation of Western legal institutions. Even if formal rules are the same across jurisdictions, the use of law is inevitably shaped by the local cultural environment.
Like some volumes of collected papers, the text is at times repetitive, and though the essays flow sequentially quite well, some of them probably could have been left out or left to an appendix. Foremost in this regard is the bibliography of Korean...