Law and Custom under the Chosŏn Dynasty and Colonial Korea: A Comparative Perspective

Abstract

A number of Korean legal historians have argued that Chosŏn Korea had a tradition of customary law and that it was suppressed and distorted by the Japanese during the colonial period. But a comparison of Korean “custom” with that in late medieval France, where the legal concept of customary law developed, reveals that custom as a judicial norm was absent in premodern Korea. The Korean “customary law” that has been postulated as a true source of private law in Korean historiography was the invention of the Japanese colonial jurists. The Japanese collected Korea's popular usages that were supposed to serve as an antecedent for a modern civil law, and colonial judges employed the legal instrument of custom in reordering Korean practices into a modern civil legal framework. In colonial Korea, custom played the role of an intermediary regime between tradition and the demands of modern civil law.

The Colonial State, Migration, and Diasporic Nationhood in Korea

“…Different kinship practices, buttressed by the separate civil and customary legal systems, made it difficult for them to form families together through marriage or adoption (Yang 1998). These “different customs” the state sometimes ignored, at other times carefully maintained, and at still others actively created, though it claimed all the while to be merely recognizing extralegal realities (Kim 2007). As postcolonial studies have documented, these shifting stances highlight a contradiction inherent in imperial rule between the demand for assimilation and the insistence on difference (Cohn 1996; Chatterjee 1993; Bennett 2004; Hoffman 2010).…”

“…In Korea, where the family registration system was first introduced in 1909, a year before the annexation, this was done in two ways. First, the system helped the state impose unified practices of naming (Cho 1981; Oh and Ryu 2009) and kinship (Yang 1998; Kim 2007) onto the entire “Korean” population regardless of status, class, or gender differences 7 . The system thus, to some degree, homogenized and equalized Koreans 8 .…”

Spontaneous Norms in Law and Economics: A Sketch Typology

“…Kim (2007Kim ( , 2009 argues that this concept of custom is specific to the broadly understood Western legal tradition and thus absent from other legal cultures, e.g., Far Eastern, that were able to develop well-organized legal systems with strong hierarchical enforcement.…”

Embracing Defeat in Seoul: Rethinking Decolonization in Korea, 1945

“…USNACP, Photograph No. 111-SC-212021. with especially stimulating work that explores the legacies of colonialism in the realms of law and heritage management (Marie Seong-Hak Kim 2007;Pai 2013). But the lives of colonizers were transformed as well.…”