Academic journal article Asia Pacific Law Review

Evolving Concept of Law in Korea: A Historical and Comparative Perspective

Academic journal article Asia Pacific Law Review

Evolving Concept of Law in Korea: A Historical and Comparative Perspective

Article excerpt

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I. Introduction

The primary purpose of this paper is to analyse the evolving concept of law in Korea from a historical and comparative perspective in order to understand a basis for 'East Asian Jurisprudence'1 under globalisation. As the law is definitely a historical product as well as an integral part of social institutions, legal concepts in any society are always based on its social and historical background. They naturally reflect the social needs at any given time. Like the West, the law in Korea has been defined in connection with its functions in each period. In the traditional era, the law's main role was to maintain social order and to secure a more noble life for citizens.2 In modern times, its purpose is oriented towards the coordination of social conflicts and the protection individual rights. The special roles of the law have changed as the historical steps in this region have moved forward.3

The positive legal concepts of Korea are based on the Legalist School in ancient China. The first unified state was established and governed on grounds of Legalist thought. Legalism was, however, challenged by Confucianism. The differences between both sides related to the philosophy of man, society, state, and law. The conflict between Legalism and Confucianism resulted in the winning of the latter. Since the Han... China (206BC-220AD), law has been enacted, applied, and implemented from a Confucian stand point. Legal historians refer to this process as the 'Confucianization of law.'4 The Confucian legal concept has gradually transformed and modernised. In order to understand the current recognition of the law as a pattern of civilisation in East Asia, this paper will focus on the evolving process of such legal concepts. This paper divides into four main parts. The first part will review the origins of legal concepts in Korea. The second part will look into the formation of legal concepts in ancient Korea. The third part will examine the transformation of legal concepts in medieval Korea. The last part will analyse the modernisation of legal concepts in Korea. To conclude, the author will compare the fundamental concepts of law between Korea and the West.

Law is a complex cultural phenomenon. Korea adopted the modern (western) legal system in the late 19th century. Its people, however, have maintained different legal concepts and mindset based on their respective traditional social values and lifestyle, which have endured for the past thousand years. In order to bridge the gap between the system and the mind, and to find a common way of thinking in Korean law, an understanding of the changing legal concepts of the three countries in East Asia is indispensable. This research will be dedicated to this journey.

II. The Origin of Legal Concept in Korea

A. An historical background of the ancient legal concept in Korea

The ancient civilisation of East Asia began in the great bend of the Yellow River of East Asia.5 It then spread along the middle and lower course of the Yellow River. With the advent of the Bronze Age, the Chinese made the first political unity known as Shang? dynasty.6 They conceived their own writing system, developed a strong sense of history, and an ideal of social and cultural unity. They believed China had a unique civilisation and called themselves Chung-kuo ..., commonly translated as the Middle Kingdom.7

The early civilisation of the Shang dynasty was succeeded by the Chou ... dynasty. The Chou conquered a much larger area than the Shang had ever dominated. In time, the vassals of the Chou became graded in a strict hierarchy of prestige with titles translated as duke, marquis, count, viscount, and baron. Each lord enjoyed autonomy within his territory, while recognising the Chou suzerainty. The system has often been referred to as a 'feudal' one.8

Confronted with a fading Chou authority and the growing ferocity of warfare, the states of the Eastern Chou period made many efforts to minimise conflicts and stabilise the political situation. …

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