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.