Organizer: Chan E. Park, Ohio State University, USA Discussant: Yong-ho Choe, University of Hawaii, Manoa, USA How did the justice system restitute the living and appease the dead during the late Chosôn eras? What adjustments and considerations did the enforcers of law and order have to make through the matrixes of social hierarchy, gender, and spirituality? And what historical understanding of the issue may be had of the narrative world of storytelling of the late Chosôn eras? A sharing of knowledge and insights across the historical and the fictional, this panel engages in the diversely situated discourses of crime and punishment, from making compatible forensic science and Confucian ritualism to how the public awareness of justice helped construct the narrative poetics of the late Chosôn society. Conversing across such disciplinary borders as history, philosophy, literature, performance, and across the Korean, Korean-American, and European scholarly perspectives, the panel aims to compare the legalistic interpretations of historical texts with literary/performative readings of fictional narratives. While the historical discourses bring to light the complex challenges of enforcing legality against circumstantial and situational variations, fictional narratives reveal how the people within such circumstances and situations felt and responded. The individual papers in the panel deal with several intersecting issues including: striking balance between convention and truth, law and circumstances, as means to prevent corruption and restore social justice; implementation of scientific processes to recover facts in handing justice; meeting the pressures of Confucian values and taboos in handling bodies; folkloric revelation of the common people’s voices in the matters of justice and injustice.
Tasan(Chǒng Yak-yong, 1762-1836) worked to maintain social order by reforming the fundamental social principles by analyzing law and its stricter application. He criticized the custom that forgave criminals who either were born with a mental disease or ascribed a murder they committed to inebriation. Tasan worked to define what involuntary manslaughter is and is not: killing without intent is, but planned and willful acts are premeditated and intentional; killing a person unintentionally while having fun is, as dangerous playing can be so powerful that it can kill a person. He criticized the criminals and judicial officers who used inebriation or mental illness as an excuse for innocence. Tasan believed that moral corruption was spreading widely in the late Chosôn, and advocated strict and fair application of law as much as possible. He was convinced that the cases disposed of too charitably would continue to cause moral hazards. It was not that Tasan liked drastic punishment per se. He was keen on promoting moral education but not to the extent that was previously promulgated. In fact, he criticized the customary practices that allowed emotion to enter the business of punishment, i.e., letting the emotion dictate the severity of punishment while ignoring the legal process. Tasan hoped to minimize the tendency of arbitrary judgment by stricter application of legal reasoning. He worked to prevent the collapse of society possible when the society ignores its legal process and depends on moral education only to maintain its order.
In the late Chosun period the relationship between law and circumstances had become a thorny legal issue particularly in the area of penal cases. Tasan Chong Yagyong (1762-1836) expressed a strong concern about it; when circumstances, more often than not, outweigh formal penal codes in judging cases, justice would be severely harmed. In a state like Chosôn that exemplifies a near complete Confucian country, it is quite interesting to see an emphasis on the observance of law rather than moral suasion or circumstantial considerations that can help strengthen Confucian hierarchy or morality. Furthermore ‘circumstances’ appear to be somewhat alien to orthodox Confucian vocabulary. In investigating the concepts of law and circumstances and their relationship in the select examples, I will explore their archetypical usage in the Han Feizi and the Xunzi. In the Han Feizi we can find the prototype conceptual framework for the concepts of law and circumstances. In the Xunzi we can trace the way a Confucian state can utilize the legal system without damaging its Confucian identity. Examining both texts in terms of their legal and political philosophies will shed a light on understanding the later development of legal system in Chosôn as reflected in the cases studied.
The storytelling world of p’ansori narrative, through the developing situations, thoughts or characters’ actions, often yields glimpses of how justice or breach of justice were socially and individually met during the late Chosôn when the narrative art was matured. While the overall flow of plot adheres to the ideal of ‘promotion of virtue and reproval of vice,’ it is often the narrative details that reveal the ironic social realities. How did the ordinary people truly feel about social justice or legal intervention when justice was breached or crimes were committed? Complicating the question is the fact that in the late Chosôn society entrenched in Neo-Confucian ideologies and social hierarchies, law and order had to be applied differently to different classes and genders. Outside and at the peripheries of prestige and privilege, how was the public sentiment about law and order negotiated? Sometimes, criminality or breach of morality exists side-by-side with humor within the narrative text, as exemplified in the Song of Nolbo’s Entrail of Perversity, the catalogue of Nolbo’s conducts in the Song of Hûngbo. In it, Nolbo’s hilarious pranks and grave criminalities alike curiously combine as one list. In the same narrative, the legal system openly allows the guilty to hire a substitute to take the prosecutorial punishment. With examples from the p’ansori narratives inclusive of the Song of Hûngbo, I will attempt to engage the readers with the complex relationship between justice, application of justice, and understanding of justice on popular level in the late Chosôn.
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