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R E S E A R C H
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Recent scholarship has witnessed an increasing interest in colonial customary law. Law has traditionally been seen in colonial
history as an instrument of imperial domination, but the boundaries of investigations have expanded significantly as scholars
examined how legal and social customs of the indigenous societies underwent changes under colonial rule.
Colonial courts and custom:
comparative reflections on customary law and colonial modernity in Korea
Marie Seong-Hak Kim
T
he insight that colonial administrators in Africa attempted to con-
solidate their rule by inventing the notion of customary law has shed
light on the relationship between imperial policy and the native systems of
rules and practices.
1
At the same time, the theoretical framework of legal
transplant has helped our understanding of how old customs were inte-
grated into the legal structure of the colonial powers. The colonial powers
were more or less in agreement that indigenous institutions should be
recognised insofar as they were compatible with the dictates of natural
law and morality and, of course, they did not impede colonial administra-
tion. Yet the actual course of implementing customary law in different
areas was full of diversity and incongruity, intertwined with the changes
in imperial policy swayed by both the complex ties between colonial and
metropolitan cultures and tensions among bureaucrats. Colonial custom-
ary law presents fascinating material for comparative analysis.
A Japanised version of Western law
The case of colonial Korea (1910-1945; Korea became Japan’s protectorate
in 1905) is illuminating because its traditional legal system underwent a
dramatic transformation into a modern Romano-German civil law sys-
tem under Japan, which introduced to the colony modern laws that it had
received from Europe only a few decades earlier. Shortly after Korea’s
annexation by Japan, the government general imposed Japan’s Civil Code
and Code of Civil Procedure as the general laws in Korea, but decreed that
most private legal relations among the Koreans be governed by Korean
customs (the Ordinance on Civil Matters of 1912). Because Chosnn Korea
(1392-1910) did not have a body of private law, except for some scattered
provisions included in the criminal code, the Japanese needed to rely on
the concept of custom. Colonial customary law was created with a specific
goal of reshaping Korean laws and practices in line with modern legal
concepts and principles in Japanese civil law. Colonial civil law in Korea
was thus a Japanised version of Western law that was further adapted to
the Korean situation through the legal machinery of custom.
2
Many jurists in the 19th and early 20th centuries were influenced by the
major tenet of the German Historical School that law was the spirit of the
people. Some prominent legal scholars were drawn to the investigation of
native customs of the colonies and took part in the debates over what kind
of colonial legal system was to be established. Henry Sumner Maine (1822
- 1888) was convinced of the absence of the concepts of rights and duties
in custom in British India. Cornelis van Vollenhoven (1874 - 1933), on the
other hand, believed in the sufficiency of adat law in meeting the needs of
Indonesian society. Japanese jurists’ treatment of Korean customs seemed
to be one of characteristic adaptation and adjustment. Ume Kenjirm(1860
- 1910) argued that Korea needed modern civil law to protect the individu-
als’ rights but claimed that a blanket imposition of Japan’s civil code on
Korea would not work due to different cultural and social backgrounds.
The colonial legal system in which Korean customs continued to regulate
Korean family and succession matters, within the general principles of
Japan’s civil law and procedural rules, prepared the ground for reconciling
Korean legal tradition with the demands of modern civil law.
The implementation of customary law in Korea was mainly entrusted to
judges and legal scholars. It was through the jurisprudence of the Chmsen
Kmtm Hmin, the colony’s highest court, that old usages and practices in
Korea were reviewed, redefined, and turned into legal custom. In colonial
Korea, there were no separate native courts as in European colonies in
Africa or Southeast Asia. There was only one system of courts, staffed
mostly by Japanese jurists, with jurisdiction over both Korean and Japa-
nese. This meant that Japanese judges enforced Korean ‘customary law’.
The colonial courts, thoroughly Westernised in their structure, adminis-
tration, procedure, and terminology, were given the task of adjudicating
cases in accordance with traditional Korean customs.
The problem was that there were no fixed customs or precedents that
articulated rights of liberties of individuals. The colonial judges, of whom
the majority had no personal familiarity with Korean customs, found them-
selves operating in a void without any written guidance that would inform
them of the legal acceptability of a particular practice claimed by the par-
ties. Where no solution had been prepared either by judicial decisions of
local courts as in the Common Law of England or through the drafting
of provincial coutumes (local customary laws) by the French jurists, the
colonial judges were compelled to devise flexible interpretive principles of
custom. Colonial jurisprudence tended to mingle custom with reason, a
process that has a long history in the West. Conflation of Korean custom
with reason allowed the judges to recognise selectively indigenous prac-
tices that conformed to their notion of justice and equity. Under the broad
rubric of customary law, the judges were thus essentially free to execute
their jurisprudential assumptions.
The main goal of the judges was to effect reasonable restructuring of social
practices through juridical abstraction so that they did not contradict legal
principles in the Japanese Civil Code. They were cautious not to dispel
the fiction of a customary law regime and adhered to the theory that they
simply discovered and applied preexisting custom that had regulated legal
relations in Chosnn Korea. Understandably, they were reluctant to admit
that (Korean) customary law was declared by (Japanese) judicial decision.
In reality, however, the instrument of custom, interpreted through a judi-
cial mechanism that approximated case law, proved extremely useful in
moulding Korean practices and procedures in line with modern private
law. Colonial jurisprudence of customary law served in this way as a nexus
between the concepts of Western law and well-formed social practices. The
judicial reworking of customs proceeded with the goal to make a modern
state in a radically different ideological and intellectual context.
Customary law and colonial policy
It has been generally argued that the main goal of the colonial legal policy
was to bring about the unification of Korean and Japanese laws, as a step
towards the assimilation of the two people. Yet scholars have also pointed
out the existence of a considerable ambivalence and inconsistence in the
Japanese legal and cultural policies about whether their colonial subjects
could, or indeed should, become Japanese citizens. Japanese colonial
administration was remarkably centralised compared with its European
equivalents, but the ideal of building an integrated empire, governed
directly from Tokyo, remained largely unattained, as the Japanese decided
early on that the legal status of the colonial subjects was different from
that of the Japanese. The powerful governor general of Korea enjoyed
considerable autonomy, forming a virtual state within a state. Colonial
courts in Korea remained outside the Japanese judicial structure and
the Supreme Court of Japan had no jurisdiction over them. Indeed the
continued existence of the customary law system can be seen as part of
the colonial administrators’ strategies to carve out autonomous legal
jurisdiction.
Constant negotiations between the government general in Seoul and the
Japanese government in Tokyo over Korean customary law reveal interest-
ing and significant aspects of colonial policy. The colonial officials stressed
the uniqueness of Korean society and hence the need for maintaining a
legal system based on custom, which supposedly they, and not the politi-
cians in Tokyo, knew best. The emphasis on custom was a result of less
cultural respect for Korean traditions than political consideration of safe-
guarding the government general’s legislative authority. In Korea, many
judicial decisions implementing the principles in Japanese civil law wer
carefully enveloped with the cover of ‘custom’. Under the framework of
the colonial customary law regime, upheld by the colonial administrators,
the blunt of the clash between traditional and modern legal orders could
be avoided. This is how a more thorough transformation of traditional law
into a modern law took place in Korea than in most European colonies.
Modern civil law rules permeated into Korean society with remarkable
speed and effectiveness.
Tradition and modernity
The colonial construction of customary law left a significant impact on
modern Korean civil law. A substantial part of postcolonial Korean law is
grounded in colonial customary law. The heavy influence of Japanese law
is understandable because the first generation of judges and lawyers in
independent Korea, including the drafters of the first Civil Code of 1958,
had been educated and trained during the colonial period. Was colonial
customary law a good thing? Did it contribute to the modernisation of
law, or did it rather serve colonial interests and distort the indigenous
legal tradition? Many legal historians around the world have struggled
to grapple with similar questions. For instance, did the adatrechtpolitiek
(the colonial attempt to preserve the native custom or adat) in the Dutch
East Indies, pursued apparently out of genuine respect for indigenous
cultures, help Indonesians, or did it instead render them more vulnerable
to outside manipulations?
3
The question of colonial modernity continues
to shape the discourses of customary law. A rounded and comparatively
conceived study of colonial customary law can contribute to our under-
standing of the role of law in modern history.
Marie Seong-Hak Kim
Prof. of History, St. Cloud State University, USA. Attorney at Law (Minnesota Bar).
mskim@stcloudstate.edu
Notes
1 Ranger, Terence. 1983. ‘The Invention of Tradition in Colonial Africa’.
Eric Hobsbaum and Terence Ranger, eds. The Invention of Tradition.
Cambridge: Cambridge University Press.
2 Kim, Marie Seong-Hak. 2007. ‘Law and Custom in the Chosnn
Dynasty and Colonial Korea: A Comparative Perspective’.
The Journal of Asian Studies 66-4.
3 Lev, Daniel S. 2000. ‘Colonial Law and the Genesis of the Indonesian State’.
Legal Evolution and Political Authority in Indonesia, Selected Essays. The Hague:
Kluwer Law International.
Korean painting
Korea’s liberation from Japanese rule in 1945.