Legal Norms in a Confucian State (review)

BOOK REVIEWS129 Development: Issues, Evidence and Alternatives," Consultant Paper Series no. 12 (Seoul: Korea Development Institute, 1980), pages 59 ff. 5.See Jones, ibid., pages 40 ff. 6.The views in this review are the author's and should not be attributed to the World Bank or to any other individuals or organizations affiliated with it. Legal Norms in a Confucian State. By William Shaw. Korea Research Monograph no. 5, Institute of East Asian Studies, Berkeley and Los Angeles, California: University of California, 1981. 267 pp. $10.00. The common ties of the Sinitic world are nowhere clearer than in the legal underpinnings of the various national cultures. It is a world where a translation of a Vietnamese code can stand, for most purposes, as a translation ofthe Ch'ing code, and where scholars studying Chinese law in the middle period of Chinese history make regular reference to such Japaneseworks as the Engishiki. A knowledge ofthe Vietnamese and Japanese facets ofthis shared legal tradition began to be available to Western scholars in the nineteenth century. Unfortunately, a similar understanding of Korean law has lagged far behind. William Shaw has begun the task of making available a knowledge of traditional Korean law to nonspecialists, and ofbringing forward his own interpretations ofit for the benefit ofspecialists. Beginning with his dissertation at Harvard, he has continued to work on a set of related problems, centering on traditional Korean criminal law and its relationship to Korean society. The present work is the most substantial product of that research to appear in print. The book is divided into three large sections: an introduction to Yi-dynasty law; a description ofYi-dynasty society, government, and legal thought as reflected in eighteenth-century case records; and a translation of selected cases from the Simnirok (a collection of records of simni, which Shaw translates as "prolonged cases"). In dealing with this broad spectrum of questions, Shaw touches on such diverse topics as law and Confucianism in Korean thought; the evolution and character of law-making in Yi-dynasty Korea; Yi-dynasty judicial systems and processes; village society and the law; inequality in both law and society; Korean attitudes towards the process of punishment; guiding principles for judicial decisions ; and the psychology ofjudgments. It will not be possible in this briefreview to describe adequately the multitude of topics discussed in the work. As a specialist in Chinese legal history, I found reading the book an unusual experience. Because I am not a specialist on Korea, much of the information was new to me, and yet a very great part of it was oddly familiar, since Yi-dynasty law and administration were so closely modeled on Chinese patterns. In this review I shall focus on a few similarities and differences between the two legal traditions and thereby touch upon the book's potential contribution not just to students of Korea, but also to those interested in China or Japan. 1 30BOOK REVIEWS One striking element common to both traditions is the belief that penal sanctions are both pervasive and necessary. It is sometimes said that punishments were anathema to a Confucian society, but legal historians know better. In neither China nor Korea does the government ever seem to have questioned the absolute necessity for a strong penal system, or its integral place in the social order. This conviction is reflected in another common element, a shared belief in the complementarity ofrites and punishments. Indeed, it might be most accurate to say that rites (and the norms they embody) and penalties formed a continuum. At one extreme were norms and rites not buttressed by penal sanctions. At the other extreme were penalties inflicted for infractions that were not seen as socially reprehensible. In the middle, however, was a broad area in which norms and sanctions supported one another. A second element common to the two traditions is the use of a complex intermixture of legal codes and supplementary law forms. The codes served as a kind oflegal ballast, keeping the ship on a steady course by providing fundamental guidelines for actions, while the supplementary laws adjusted these basic truths to the particular character of a given time and place. This pattern...