SOAS Research Online

Abstract

The thinker who wrote most extensively on legal matters among the Silhak scholars of Late Joseon Korea was Jeong Yagyong 丁若鏞(1762- 1836, penname Dasan 茶山). His main work in this area is Heumheum sinseo 欽欽新書(Toward a New Jurisprudence) from 1822, an extensive legal treatise and annotated collection of murder cases from Korea and China. This rich material has enabled scholars to portray how Jeong Yagyong in his jurisprudence and statecraft thinking navigated between the polarities of ‘rule by virtue/ritual’ (deok/yechi 德/禮治) and ‘rule by law’ (beopchi 法治) and to analyse in detail his notions of justice. Given Jeong Yagyong’s prominence as a statecraft thinker, the present study addresses the question of how he perceived the role of law in the broader workings of statecraft. Taking lead from Gim Ho’s argument that Jeong Yagyong’s approach to the two polarities of ‘rule by virtue/ritual’ and ‘rule by law’ was flexible, and that his attitude must be understood on a case-by-case basis taking a variety of factors into consideration, this study approaches the question of how Jeong Yagyong viewed the role of law in statecraft by separating the discussion between the judicial process and legal outcomes. As the main focus of the study is the role of law in statecraft, the text analysed will be Jeong Yagyong’s treatise on local administration, the Mongmin simseo 牧民心書(Admonitions on Governing the People). In terms of the polarities of ‘rule by virtue/ritual’ and ‘rule by law’, in Mongmin simseo Jeong Yagyong displays different attitudes in his discussion on the judicial procedure and in the one about legal outcomes. Whereas in the first, strict adherence to the letter of the law is argued for, in the latter he emphasises flexibility. While this difference can be explained by the fact that procedural law was to a larger extent influenced by the Confucian norms and values contained in the notion of ‘rule of virtue’ than substantive law which reflected the political and socio-political needs of the state, and that it was the enforcers of the law that were subject to the former and the populace to the latter, this study suggests that it is also connected with Jeong Yagyong’s notions of how the actual conduct of penal administration should be part of the edifying efforts of the authorities that were central to the ideals of Confucian statecraft.