In this blog post, we will examine whether legal stability and predictability were ensured through the principles of the rule of law and the application of the principle of proportionality in the criminal law of the Joseon Dynasty.
Introduction
The rule of law is the principle that what constitutes a crime and how it should be punished must be stipulated in advance by written law. This is an important legal principle for ensuring legal stability and predictability, preventing arbitrary judgments by judges and contributing to the implementation of the rule of law. Although it is considered an essential principle in modern legal systems, it is very interesting to examine how this principle was applied in historical legal systems. In particular, the discussion of how this principle was implemented in the criminal law of the Joseon Dynasty is a fascinating topic. In this article, we will analyze from various perspectives whether the principle of legality can be found in the criminal law of the Joseon Dynasty.
Features of Criminal Law in the Joseon Dynasty
The criminal law of Joseon had a codified system that specified the criteria for punishment. The criminal law of the Joseon Dynasty followed a formalistic format in which the types of crimes and the status of criminals and victims were distinguished individually, and the severity of punishment was determined accordingly. This principle can be said to be identical to that of the principle of legality, in that it prevented judges from being influenced by external pressures and from arbitrarily determining whether a crime had been committed.
According to the “Dan-jin-in-ryeong-jo” (Provisions on Punishment) of the Dae-myeong-ryeong (Great Code of Punishment), which served as the general law of criminal law during the Joseon Dynasty, when determining the crime, one must follow the law, and if one does not, one shall be punished. These provisions were intended to ensure legal stability and eliminate arbitrary judgments. However, it was impossible to list every possible case, which could lead to loopholes in the law. To compensate for this, the Joseon Dynasty introduced the concept of Inryulbubu (引律比附).
Inryulbubu and the principle of legality
In-yul-bi-bu refers to the practice of determining the nature of a crime by adding or subtracting elements from the closest relevant provisions of the legal code when the code does not explicitly address a particular case. This process involved reporting the decision to the Ministry of Justice, which then submitted it to the king for punishment. This approach aimed to prevent arbitrary judgments. However, this method left room for arbitrary interpretation, which became a basis for criticism that Joseon’s criminal law violated the principle of legality.
On the other hand, there is also the view that the Inryulbibu was inevitable in Joseon’s criminal law. It was a method of applying the law to overcome the limitations of legal formalism, serving as a special interpretation method to abstract specific laws. This interpretation method can be seen as an attempt to expand the scope of law and fill legal gaps.
Controversy and modern implications
There are two positions on whether the principle of legality can be found in the criminal law of the Joseon Dynasty. This controversy is important for understanding how legal principles were applied historically. In particular, it helps us understand the legal thinking and system of the Joseon Dynasty when compared to the rule of law in modern times.
The criminal law of the Joseon Dynasty shows efforts to pursue legal stability through formalism and the principle of non-contradiction. This is similar to various methods of interpretation used in modern legal systems to fill legal gaps. Therefore, through the criminal law of the Joseon Dynasty, we can gain a deeper understanding of the historical development and meaning of legal principles.
Conclusion
Whether the principle of legality can be found in Joseon-era criminal law is a matter of debate from various perspectives. The Joseon-era legal system was based on written law and sought legal stability and predictability, with efforts to fill legal gaps through interpretation methods such as in-yul-bi-bu. In this regard, Joseon-era criminal law provides important historical insights when compared to modern legal systems. Further research into this historical legal system will contribute to the development of modern legal systems.
