In the Name of Custom, Culture, and the Constitution: Korean Customary Law in Flux

Article excerpt


Introduction 357

I. Jurisprudence of Custom 363

A. Concepts of Customary Law 363

B. Custom and Reason 366

C. Confucian Culture and Constitutional Challenges 368

II. Bordering Tradition and Legislation: Custom-Based Statutes .372

A. Ancestor Memorial Service and Ritual Property 374

B. Constitutional Reckoning 376

C. What's in a Name? That Which We Call Reason 380

III. Custom that Confounds: Gravesite Superficies 383

A. Superficies in Korean Law 383

B. Customary Law of Gravesite Superficies 385

Conclusion 389


The Korean Civil Code of 1960, the first Korean code after independence from Japanese colonial rule, recognizes customary law and reason (chori) as official sources of law.1 Article 1 provides: "In civil matters, if there is no applicable provision in Statutes, customary law shall apply, and if there is no applicable customary law, sound reasoning shall apply."2 It is the same language that is found in the Chinese Civil Code of 1929-30 (currently in force in Taiwan) and the Civil Code of 1937 of the now-defunct Manchukuo.1 This provision has been viewed as deriving from the famous Article 1 of the Swiss Civil Code, which provides: "In the absence of a provision, the court shall decide in accordance with customary law and, in the absence of customary law, in accordance with the rule that it would make as legislator. In doing so, the court shall follow established doctrine and case law."4 The Swiss Code of 1907 served as the prototype for a number of civil codes around the world including East Asia; its clearly defined hierarchy of legal sources, in particular, profoundly inspired many legislators.5 But the direct origin of the aforementioned provision in the East Asian codes was an article in a Japanese law, issued over thirty years earlier than the Swiss Civil Code.6

In June 1875, the Great Council of State (Dajökan) of the Meiji government in Japan promulgated the Rules for the Conduct of Judicial Affairs (Law No. 103).7 Its Article 3 provided the precise language that was later duplicated in other East Asian laws, that is, written law, customary law, and reason (jöri) were sources of law.8 The 1875 law represented an early milestone in the process of the reception of European law into Japan. It is important to note that one of the first subjects of legal reception was the concept of customary law.9 Custom as a source of law did not exist in pre-modern East Asia.1" Traditional China and Korea, as well as Japan before the onset of feudalism in the twelfth century, each had a highly advanced and comprehensive codified legal system." These states' codes were replete with elaborate penal proscriptions and administrative regulations, but the notion of private law as judicially enforceable norms that govern relations among individuals was largely absent.12 This was one of the fundamental differences from the Western legal tradition in which law was primarily a system of civil law rules enforced through adjudication.

Before the codification of the modern Civil Code in Meiji Japan, express provisions of law were few and proved inadequate to deal with mounting civil disputes. The 1875 law declaring custom to be a source of law provided an important respite to this situation by allowing judges considerable latitude in deciding cases." Because Japan did not have a written collection or a codified body of customary law, it was far from clear what custom was.14 Japanese legislators and scholars were notoriously oblivious of the distinction between custom and conventional usages and tended to regard all indigenous practices as well as the Tokugawa bakufu government's laws as custom.15 In the name of applying legal custom, under the 1875 law, Meiji judges evaluated old customs and practices and selectively applied what they regarded as reasonable custom; in the name of reason and justice, they applied general principles drawn from imported European law, in particular the French Civil Code. …


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