• 1 William T. Rowe, “Success Stories: Lineage and Elite Status in Hanyang County, Hubei, c. 1368-1949” (...)
• 2 Yongwhan Kim, “A Study of Korean Lineage Organization from a Regional Perspective: A Comparison wit (...)

3This Article sets forth the evolution of lineage property in Korea over the centuries, from the Chosŏn dynasty (1392-1910) through the contemporary times. The main focus is on the metamorphosis of traditional patrilineal agnatic and ritual succession into a civil law framework of property succession through colonial jurisprudence. The strict interpretation of Confucianism by Zhu Xi (1130-1200) during the Song dynasty (960-1279), known as Neo-Confucianism, was introduced to Korea and accepted as the state ideology. There is truth to the view that Korea was far more orthodox than China in the interpretation of Confucian precepts. Neo-Confucian emphasis on ancestor rites was grafted onto and articulated in the country’s kinship-based social structure. Lineage was, foremost, defined as a unit that performed ancestor rituals. Ancestor veneration solidified the primogeniture order and adoption practice. Succession essentially meant succeeding to the status as the presider of ancestor ritual, and the transfer of property occurred only incidental to ritual succession. The intensity of ancestor worship led to a unique structure of lineage organization in Korea that deviated from the equivalent in China. In China, where the principles of partible inheritance and free alienability of land were widespread, it was difficult to preserve estates intact over generations.1 Lineage property thus evolved into joint property-holding corporate estates, a phenomenon largely unknown in Korea.2 The obligations internalized by the Korean people toward the spirits of departed forebears long muddled the boundaries between rites and rights. Comparison between the Chinese and the Korean cases points to the fact that Confucian legal tradition is a broad category and there existed substantial disparities in interpretations and practices; it brings into relief the shared but separate legal cultures in the countries within the Confucian sphere of influence.

• 3 See Marie Seong-Hak Kim, Law and Custom in Korea: Comparative Legal History, Cambridge, Cambridge U (...)

4Major changes in Korean law came with colonization. Under Japanese rule (1910-1945), Korea underwent a passage to Romano-German civil law. In East Asia, European law and legal concepts first took root in Meiji Japan (1868-1912), which subsequently spread to China and to Taiwan and Korea. Korea’s legal transformation was a classic example of legal transfer in the wake of colonial expansion.3 Since property succession had not been recognized as jural act during the Chosŏn period, colonial judges had to navigate between accommodating existing ritual usages and practices from the dynastic period and enforcing modern legal principles and property rights in the Japanese Civil Code. Jurisprudence on succession without an heir appeared during the colonial period. In 1933 the colonial court abolished the legal effect of ritual succession, and the once-fluid succession practices of Korea were turned into a fixed, extraritual system in conformity with the civil code provisions.

• 4 See Martina Deuchler, Under the Ancestors’ Eyes: Kinship, Status, and Locality in Premodern Korea, (...)

6In a broader perspective, this Article revisits the question of relationship between Confucianism and the economy. The conventional view of Confucian antipathy to economic matters has been contested of late, as scholars argue that the motivations behind lineage union and property building were seldom grounded on Confucian ethics alone.4 One observes indeed that Confucian ideas and doctrines, seemingly diametrically opposed to European legal concepts, stood on the similar goals of achieving cohesion of society and the fulfillment of human values. Still, the Korean case shows that articulation of those common concerns in different societies took disparate paths, each subject to various historical and cultural experiences. Lineage practices and law can shed light on comparative legal traditions.

• 5 Jonathan K. Ocko, “The Missing Metaphor: Applying Western Legal Scholarship to the Study of Contrac (...)
• 6 Jonathan K. Ocko, “The Missing Metaphor: Applying Western Legal Scholarship to the Study of Contrac (...)

7Jonathan K. Ocko, a historian of early modern China, wrote: “the reason property never became a root metaphor, never became a way of imagining the nature of political power or of the relationship between state and individual, is that until the twentieth century the root metaphor of ‘family’ had such power that there was no room for others”.5 This apt statement seems largely applicable to Chosŏn Korea. Korea was a demonstrative example of a society in which its powerful kinship ideology left little space for the property rights of an individual. J. K. Ocko has further argued that “Lineage estates allowed families to build complex corporate land ownership structures […], but discussion of the practice remained couched in the language of filiality”.6 Here, the Korean experience revealed a theoretical affinity yet at the same time divergence in practical approaches. The exigency of proper performance of ancestral rites in Korea reinforced strict ritual and proprietary primogeniture, which discouraged the rise of corporate estates similar to those in China.

• 7 See Mark A. Peterson, Korean Adoption and Inheritance: Case Studies in the Creation of a Classic Co (...)
• 8 Marie Seong-Hak Kim, Law and Custom in Korea: Comparative Legal History, Cambridge, Cambridge Unive (...)

9Adoption for the purpose of procuring a ritual heir (iphu) was governed by the Kyŏngguk Taejŏn, Chosŏn’s law code compiled in the late fifteenth century.7 Agnatic adoption among the upper strata families must be distinguished from the more conventional form of adoption among the commoner families, namely, raising another’s child as one’s own. In Chosŏn, a child with a different surname under three years of age could be taken in and fostered, and the child could be given the property of the adopting parent. But this practice, called suyangja, was qualitatively different from adoption for the performance of ancestor ceremonies, which strictly prohibited non-agnatic adoption.8 Ritual adoption was the most important safeguard for a corporate household against the danger of losing social status and control that the extinction of the family as a ritual unit would cause.

• 9 Martina Deuchler, Under the Ancestors’ Eyes: Kinship, Status, and Locality in Premodern Korea, Camb (...)
• 10 Jack Goody, “Adoption in Cross-Cultural Perspective”, Comparative Studies in Society and History, t (...)
• 11 Jack Goody, “Adoption in Cross-Cultural Perspective”, Comparative Studies in Society and History, t (...)

10The goal of perpetuating unilineal groups required that the adopted son stand as close as possible to the adopting father in the descent line. This was in agreement with the principle that the devolution of property was basically lineal and horizontal succession had to be avoided.9 A member of the same generation was not considered suitable because it would disturb the proper lineal order called somok (zhaomu in Chinese). The switching of the main descent line was strictly forbidden. The most preferred method was adopting a younger brother’s son and, if it was not feasible, a paternal cousin. When a person had a son who was married but died without a son, the former adopted a child, not for himself but for the soul of his deceased son, and the adopted person became his grandson, not his son. The strict requirement of appointing an heir from among the closest relatives, in conformity with the order of ritual precedence, served a utilitarian purpose. According to Jack Goody, adoption across premodern societies practically meant “the purchase of an heir with the promise of property”,10 and disputes of adoption were “in reality disputes of inheritance”.11 Around the world, collaterals of the same generation were not preferred heirs in either ancestral worship or property inheritance, and Confucian Korea pushed the idea to the extreme. The brother’s son, once adopted, could keep the property intact, regardless of what his intestate shares might have been, and preserve the property in the main descent line. The son who succeeded to the ritual presider status tended to receive the property in its entirety, at least from the eighteenth century. The ritual demand that an heir be chosen from among kinsmen of the proper generation thus likely had a reasoned consideration beyond respecting the ancestor’s wish to be served by an agnatic heir. Ritual does not need to be irrational.

• 12 See Sang-U Han, “Chosŏn hugi yangban ch’ŭng ŭi iphu yangsang kwa chŏllyakchŏk kyeja sŏnt’aek”, Chos (...)
• 13 Min-Jŏng Ko, “17 segi iphu ŭi yokkŏn kwa ch’ŏpcha kyesŭng”, Chŏngsin munhwa yŏngu, t. 39, n^o 3, 201 (...)

12Adoption operated as a conscious decision-making process, and as such the selection of an adopted son required tactical approaches. Studies of adoption records of some prominent lineage families between the seventeenth and nineteenth century reveal that the process involved more than an automatic adoption of a son from the closest agnate brothers.12 It was not rare that families adopted from distant relations over closer relatives. The rule prohibiting the adoption of someone else’s eldest or the only son was frequently ignored. Whether adoption was allowed when there was a son born of a concubine was another gray area. The law permitted establishing a jural-ritual heir only if neither the primary nor the secondary wife had a son, but elite families often adopted even when there was a son from the secondary wife.13 Posthumous adoption was not allowed for families other than the main descent line (chongga) because there was no issue of securing a ritual successor, but it became common for a minor branch to adopt a son anyway. These developments indicate that ritual adoption practice was after all a strategic act, and nonritual considerations and negotiations were an essential part of it. Various maneuvers and expedients that flourished to circumvent the rules were then bound to give rise to disputes and challenges.

• 14 Pyŏng-ho Pak, Hanguk ŭi pŏp, Seoul, Sejong Taewang Kinyŏm Saŏphoe, 1974, p. 142-146.

13As seen above, succession in Chosŏn meant ritual succession, not property succession. No word existed for “succession” (sangsok); only terms such as “distribution or allocation in division” from the parents (pungŭp) and “division of the bequest” (punjip) by the children were in use.14 The general understanding was that the estate was entrusted, at the end of the three-year mourning period, to the ritual heir, who would divide and distribute it (hwahoe) to other heirs in a reasonable manner. In this scheme, the ritual heir held significant control over the actual partition of the property.

• 15 Kuk-Il Yun (translator), Yŏkchu Kyŏngguk taejŏn, Seoul, Yŏgang Ch’ulp’ansa, 2000, 5/12a-b (Hyŏngjŏn (...)

14In China, at least since the Tang Dynasty (618-907), codified law sanctioned the practice of equal division among the heirs. The Chosŏn Kyŏngguk Taejŏn also provided that the children receive the property of the deceased equally, with the one who presided over the ritual receiving one-fifth in addition.15 How effectively this provision of equal distribution was implemented is open to debate, but one may presume that its stipulation in the law code had at least helped minimize disputes. The law was gradually sidelined, however, as Neo-Confucian ideology spread widely, legitimizing primogeniture as the foundation of agnatic succession. By the seventeenth century, the Korean lineage system had attained its full patrilineal structure and soon the ritual allowance in legal share (one-fifth) was considered insufficient. Concerns arose that the partible distribution of slaves and land, the two most important forms of property, threatened the maintenance of the main descent line among noble families.

• 16 Tasan Yŏnguhoe, Yokchu Mongmin simsŏ, Seoul, Ch’angbi, 2000. Mongmin simsŏ was written in 1821. An (...)
• 17 Tasan Yŏnguhoe, Yokchu Mongmin simsŏ, Seoul, Ch’angbi, 2000, t. 4, p. 9 (Hyŏngjŏn), chapter 1 (Ch’ŏ(...)

15Tasan Chŏng Yak-Yong (1762-1836) was one of the most original thinkers and official-scholars in Chosŏn. He is known for his judicious advice for local magistrates on state governance compiled in his handbook Mongmin simsŏ.16 Like many contemporaries of his, Chŏng was rightfully frustrated with rampant lawsuits over slave ownership, but his diagnosis of the problem is often overlooked by scholars. In his opinion, the laws that prescribed equal distribution of slaves among the heirs were at fault. The law code gave the ritual heir a slightly bigger share, but, far from adequate, it led to the decline of the chongga of prominent families, which struggled to meet the obligations of rituals. Chŏng wrote: “Because of this law, the head house of great princes and royals, meritorious sages, fathers-in-law and sons-in-law of the king, and officials and statesmen decline within two or three generations,” and “they die out, unable to ensure proper rituals, without surviving two or three generations. This is all because of the bad law”.17 Here, he was voicing the widespread concerns in society about the difficulty in preserving the family patrimony, when the slave population was on the decline and the landed estate became increasingly scarce. These dire situations were caused by the unreasonable partible inheritance laws, but interesting for our purpose is that Chŏng directly linked the fall of the elite families to their failure to perform the required rites.

• 18 Tasan Yŏnguhoe, Yokchu Mongmin simsŏ, Seoul, Ch’angbi, 2000, t. 4, p. 9 (Hyŏngjŏn), chapter 1 (Ch’ŏ(...)

16Chŏng’s reasoning in favor of the preferential treatment for the eldest son, if not exclusive inheritance, seemed framed within the raison-d’être of the yangban (landed or non-landed aristocrats) families. Maintaining lineage property intact, in the hands of a single heir, was necessary for continuing the proper observation of rituals at the ancestral shrine, which would in turn be critical for sustaining social order. The goal of keeping ancestral wealth concentrated, a common desire around the world, was rationalized in Korea in distinctive ritual terms and prescriptions. Chŏng advised that magistrate be not bound by the inheritance rules in the code when they decide the cases involving elite families; for disputes involving the families without considerable asset (that is, those with arguably less pressure for the proper observance of rituals), on the other hand, the magistrate should abide by the egalitarian principle of the law code.18

• 19 The nature of Korean magistrates’ decisions in civil law matters is substantially similar to that o (...)

18The paramountcy of agnatic succession and ritual precepts, no matter how potent, did not prevent disputes among the family members from arising. Discord over property exacerbated because the Chosŏn state maintained an increasingly tolerant attitude towards various practices regarding inheritance. The state’s indifference was due not so much to its respect of individual autonomy as to its administrative inability. There were no laws that the magistrates could refer to in a consistent manner when disputes were brought before them. As a result, those cases were dealt with by ad hoc decisions by magistrates, taking into account the factual situations and circumstances of each case.19

• 20 Yutaka Tezuka, Minji kanrei ruishū, Tokyo, Keio Gijuku Daigaku Hōgaku Kenkyūkai, 1969, 1877; Hōmush (...)
• 21 See Jacques Vanderlinden, Coutumier, manuel et jurisprudence de droit Zande: Études d’histoire et d (...)
• 22 See Jérôme Bourgon, “Le droit coutumier comme phénomène d’acculturation bureaucratique au Japon et (...)
• 23 Chōsen Sōtokufu, Kanshū chōsa hōkokusho, Seoul, 1913 [1910]; Tokyo, Ryukei Shosha, 1995. The 1912 e (...)

20For Meiji Japan, the enactment of a uniform corpus of civil law was a precondition for the abolition of extraterritoriality. In preparation for drafting the civil code, Japan undertook a series of field surveys to collect popular customs and practices.20 It was an effort informed by the European colonial models in Africa and Asia, where non-European customs were written down by colonial administrators, anthropologists, and jurists.21 Japan of course was not colonized by any country, but it carried out a similar campaign on its own, a process that can be called a self-colonization of its laws.22 Negotiations for the revision of treaties began in 1894, and the civil code was completed in March 1898. Japan became a full-fledged imperial power when it colonized Taiwan in 1895. After Korea became its protectorate in 1905, Japan conducted field surveys of Korean customs and practices as it had done in Taiwan. The result was the Customs Survey Report, compiled by the colonial government in 1910.23

• 24 Chosŏn Ordinance of Civil Matters was issued on March 18, 1912 (Seirei n^o 7), taking effect on 1 Ap (...)
• 25 The relevant provisions are as follows. Article 10: Civil matters involving Koreans only are govern (...)

21The Government General in Korea issued the Ordinance on Civil Matters (Chōsen Minjirei in Japanese; Chosŏn Minsaryŏng in Korean) in 1912. It imposed Japan’s Civil Code as the governing law in the colony, but decreed that private law relations among Koreans be regulated by Korean custom.24 Matters of capacity, family and succession, and real property rights were subject to old dynastic laws and popular usages, as long as they did not violate public order.25 This was another arrangement Japan lifted from the book of the European colonizers. On the imperial scene in the nineteenth and twentieth centuries, anything that was not the colonizer’s laws was called custom, which was allowed to have legal force among the colonial subjects insofar as it was not contrary to the legislation or public order. The notion of ordre public in francophone Africa was equivalent to the repugnancy clause in British colonies in Africa. The Customs Survey Report was a main source for judges to apprise themselves of Korean customs.

• 26 The Meiji Civil Code provides, under separate chapters, “Succession to a House” (Articles 964-991) (...)
• 27 Chōsen Sōtokufu, Kanshū chōsa hōkokusho, Seoul, 1913 [1910], # 158, p. 344. Kŭng-Sik Chŏng (transla (...)

22The Report distinguished Korean succession practices into two categories: status succession and property succession. This classification was borrowed from the Japanese Civil Code, which provided for the house headship succession and property succession. Following the dissolution of the feudal system, the Meiji civil code preserved the category of house headship succession (katoku sōzoku) in separation from property succession.26 The Customs Survey Report acknowledged that these classifications “were not suitable for explaining the Korean succession system”.27 But the compilers of the Report said that they needed to use the Japanese categories provisionally, for lack of alternatives.

• 29 Chōsen Sōtokufu, Kanshū chōsa hōkokusho, Seoul, 1913 [1910], # 167, p. 354-355. Kŭng-Sik Chŏng (tra (...)
• 30 Chōsen Sōtokufu, Kanshū chōsa hōkokusho, Seoul, 1913 [1910], # 167, p. 354-355. Kŭng-Sik Chŏng (tra (...)

24Property succession was predicated on status succession. The Report stated that “property succession is recognized when a family member is deceased or when the household head is deceased”, that is, property succession could take place either outside of or concomitantly with the household headship succession.29 In the first category of the death of the family member who was not a household head, “if that person is a married male, his ritual successor inherits the property of the deceased; if the ritual heir has a brother, that brother also receives the property”. In the second category of the death of the household head, “if the deceased is male, his property is inherited by the ritual successor or another person who becomes the ritual presider; the brother of the ritual heir also receives a share of the property”.30 The indeterminate language the Report used to describe the stake of the heirs other than the ritual heir was reflective of the reality of property succession: there were no explicit rules as to the rights of individual heir. The distribution of the property was within the discretion of the ritual successor.

• 31 “The Resolutions of the Investigation Committee for the Old Customs and Their System, 1921-1923”, i (...)

25Jurists observed in 1923, “previously the term succession was not used in Chosǒn; it is only a recent development that it came into use in laws and court decisions and also in ordinary usages”.31 Inheritance practices were constructed into legal acts by means of court jurisprudence.

• 32 When Japanese judges were in doubt about the legal relations in old customs, they sent inquiries to (...)
• 33 Kŭng-Sik Chŏng, “Singminji ki sangsok kwansŭp pŏp ŭi t’adangsŏng e taehan yŏngu”, Seoul Taehakkyo p (...)

26When colonial judges needed to decide cases according to Korean customs, they often sent inquiries to the colonial administration and consultative bodies and also sought the works of Japanese jurists who researched Chosŏn laws and usages.32 They made in general conscientious efforts to decide individual cases by applying Korean laws and customs. At the same time, it seemed inevitable that they tended to construe customs in terms of modern legal principles they had been trained in and also in accordance with their sense of justice and equity. Colonial jurisprudence represented a space for a sort of intercultural encounter, as the judges tried to discover, explain, and bring the laws and practices of colonized subjects in line with those in the metropole. In this effort, their decisions, rendered in the name of custom, were not always consistent. Japanese colonial judges largely supposed that Confucian practices among the elite were general customs among the populace.33 As Confucian norms and values in Chosŏn society became popularized beyond the elite circles, it is true, succession and property relations of the ruling class were filtered down to the lower classes, but there still existed certain differences. This was a point judges at the colonial courts often ignored.

• 34 Decision of 15 December 1925, Hanketsuroku, t. 12, p. 483.

27A case decided on 15 December 1925 at the Chosŏn High Court (Chōsen Kōtō Hōin) exemplifies the intricacy of Korean customs and practices that colonial judges struggled to disentangle.34 A woman named Cho Pyŏng-Min was the widow of Hong Ki-Sun. They had three sons, Tal-Su, Tal-Bu, and Tal-Chun. Tal-Bu, the second son, filed the suit against his nephew, Hong Chong-U, who was Tal-Su’s son, claiming that he was entitled to the property of Cho who had died the previous year. The eldest son, Tal-Su, had been adopted many years earlier by his father’s elder brother and became the latter’s ritual successor in 1918. Tal-Bu, upon his father’s death, became the household head. Tal-Chun, the youngest son, set up a separate household. The already confusing situation was further complicated by the fact that the widow (Cho), along with Tal-Chun, had entered in 1917 the household of her brother-in-law, the one who had already adopted Tal-Su. At the time of her death, she remained in the same household as Hong Chong-U.

• 35 See also the decision of 26 October 1926, Hanketsuroku, t. 13, p. 328 (“When a husband, who is a no (...)

28The court of first instance found for the plaintiff, Tal-Bu, but the appeals court reversed. It cited the Korean custom that the property of a non-household head was succeeded by lineal descendants who were listed in the same household record. The Chosŏn High Court affirmed the appellate court decision, ruling that “the successor of the property must be in the same house as the deceased, no matter whether the latter was a household head or not. It is Korea’s custom that individuals belonging to a different household cannot become a successor”. The controlling law was the custom that property could be inherited only by those who were in the same household as the deceased. The plaintiff had no right to succeed to Cho’s property, although he was her natural son, because he belonged to a different household.35

• 36 In 1924 the High Court stated: “A daughter who is married and belongs to a different house loses he (...)

29In this specific case, the highest colonial court’s holding seemingly represented the general rules based on Korean customs. But evidence shows that similar customary laws were not always strictly observed in myriad other convoluted fact situations. It was not uncommon that property that was not part of household headship succession was given to the relatives regardless of their gender or marital status. For example, married daughters who belonged to a different household often received property.36 These cases revealed that property succession customs as implemented by the colonial courts were far from settled, before they were gradually standardized through accumulated precedents.

• 37 See Yang-Hŭi Hong, “Chosŏn ch’ongdokpu p’ansa Nomura Chotarō ŭi Chosŏn sahoe insik”, Kajok pŏp yŏng (...)
• 38 Chōtarō Nomura, “Chōsen ni okeru shinzoku kanshŭ no jitsujō to sono hō ritsu ue no shuyō mondai”, H(...)
• 39 Chōtarō Nomura, “Sosen no saishi to genkō no hōritsu”, Shihō kyōkai zasshi, t. 5, n^o 4, 1926, p. 17

30Ritual succession received major scrutiny from Japanese jurists. Nomura Chōtarō, a Chosŏn High Court judge from 1923 to 1934 and later the chief judge of P’yŏngyang Appeals Court until his retirement in 1941, was one of the most eminent authorities on Korean family and succession laws.37 Nomura stated: “one cannot understand the household headship succession relations without ritual succession. In Korea, status succession is hinged on ritual succession”.38 He stressed that ritual succession, although a pivotal feature of Korea’s succession system, had no legal meaning: ritual succession was only the standard for deciding who would become the household head.39 Largely following Nomura’s opinion, the colonial High Court abrogated in 1933 ritual succession all together, declaring that it was a mere practice of acquiring an ethical status to perform ancestor ceremonies and should not be recognized as a legal right. The court wrote:

• 44 Noboru Fukuyama, “Sōzokunin no kōketsu”, Minshōhō zasshi, t. 16, 1942, p. 244-245.

36The Meiji civil code provided that “when it is uncertain whether there is an heir, the estate is treated as a legal person” (Article 1051), namely, a corporation. In such a case, “the court must, on the application of a person with interest or of the public procurator, appoint an administrator for the estate” (Article 1052), while the search for an heir and the settlement of the property proceeded. The provisions governing the absence of an heir presumed that there was property to be succeeded. As alluded to above, house headship succession seldom failed when property was involved. Therefore, when there was someone eligible for house headship succession under Article 982, the application of the provision of an estate without heir was unlikely.44 Here, it seems clear that the property at stake, having been granted the status of a legal person, existed for the benefit of a corporate body, the house.

• 45 This was Hozumi Nobushige’s opinion, cited from Noboru Fukuyama, “Sōzokunin no kōketsu”, Minshōh (...)

37The procedures stipulated in these statutes depended on whether the estate involved property succession that also entailed house headship succession or it concerned property succession only. In the former case, the clause “when it is uncertain whether there is an heir” practically meant that “the selection of the head of the house has not taken place within a certain time period after the commencement of the house headship succession”.45 It would be a situation where there was no heir to the house within the meaning of Article 982 and the family council failed to designate and select the successor under Article 985. But this meant that absence of the house head was already confirmed, a situation different from where the existence of an heir was unclear. The selection of the house successor was a right to exercise, not an obligation, and the legal act of nominating one had to take place materially, regardless of the presence of the people qualified for the successorship. Property settlement could take place independently from house succession.

• 46 Meiji 17, Dajōkan Declaration n^o 20, cited from Noboru Fukuyama, “Sōzokunin no kōketsu”, Minshōh (...)
• 47 Chikara Kamiya, “Meiji minpō sekōmae ni okeru sōzoku no kōketsu seido”, Hōseishi kenkyū, t. 12, 19 (...)
• 48 10 August 1884 (Meiji 17), Directives of the Interior Ministry, cited from Noboru Fukuyama, “Sōzoku (...)

39The Japanese code included separate provisions on the extinction of a house: “if there is no heir to a house which loses its head, such house becomes extinct” (Article 764). The code was silent as to how much time should elapse before the house could be declared extinct. According to Japanese custom that governed during the years before the promulgation of the civil code, the house became extinct when six months passed from the death or removal of the house head without the selection of a successor.46 For commoners, nomination of the house head successor could be made without time limit, even after several decades had passed.47 The property of the house that became extinct was maintained by the relatives for five years; when there were no relatives, it was managed by the village. After this period, the property was incorporated into the state treasury as miscellaneous local revenue.48 Once the estate was settled and absorbed into the state treasury, the extinction of the house was confirmed.

• 49 Chōsen Sōtokufu Chūsūin, Minji kanshū kaitō ishū, Seoul, 1933, p. 267-268; see also the Resolutions (...)

40Because the notion of property succession did not exist in Chosǒn in separation from ritual succession, colonial judges treated succession without an heir as the case of the extinction of the household. The household went extinct when there was no ritual heir at the death of the household head, that is, no brother to serve as a temporary adopted heir, no widow to succeed to the household headship (due to her death or remarriage), and no posthumous adoption completed within a reasonable time. The need to keep the estate within the patrilineal group was never questioned. The Chūsūin reported in 1916 that there was no custom that the members of a different household received the property of an extinct household.49

• 50 Chōsen Sōtokufu Chūsūin, Minji kanshū kaitō ishū, Seoul, 1933, p. 372 (5 March 1920).
• 51 Decision of 21 September 1928, Hanketsuroku, t. 15, p. 268-274 (the quote is in p. 273).

41In 1920, colonial officials informed the P’yǒngyang Appeals Court of the existence of a Korean custom that the property at the death of the female household head was succeeded by the one selected the kin council.50 The highest court ruled in 1928 that the property of the deceased with no heir was to be taken care of temporarily by collateral relatives. It wrote: “Where the household head is deceased and adoption has to take place but there is no female member to become a provisional household head, the property can be temporarily managed by collateral relatives; but the latter does not take that property”.51 In a reply in 1933 to the inquiry from the law minister of the Government General, the Chūsūin explained that the property of the deceased without descendants was succeeded by the kinship within the fourth degree:

• 53 The Korean Civil Code of 1958 incorporated the colonial custom of succession including posthumous a (...)

42How much time should elapse before the household would become extinct was far from clear. The general understanding was that there was no time limit on the completion of the adoption process by the kin council.53 Even the household that had been declared extinct could be restored through adoption later on. Once the extinction had been declared and the property distributed, however, the adopted heir obtained the household headship only, not the property rights. The extinction would occur only when adoption failed to take place, for whatever reason. Those cases were uncommon when there was property involved but, in such rare cases, the residual receiver of the property without heir was local villages, called tong or ri.

• 54 Martina Deuchler, Under the Ancestors’ Eyes: Kinship, Status, and Locality in Premodern Korea, Camb (...)
• 55 Chōsen Sōtokufu, Kanshū chōsa hōkokusho, Seoul, 1913 [1910], # 9.2, p. 35. Kŭng-Sik Chŏng (translat (...)

43The tong or ri were originally multi-surname communities, a kind of administrative villages. Some progressively grew into single-surname villages, closely tied to the presence of powerful lineage-dominated agnates and affines in the countryside. From the seventeenth century, according to Martina Deuchler, the landed aristocrats in the countryside increasingly turned to “localist strategies” to preserve their dominance, by “turning the village into a vital site of sajok identification”.54 The Customs Survey Report affirmed that the tong or ri “can own and hold property”, and that “some villages with funds seek profits by lending money to the community members for interest”.55 They most often obtained property through donations or reclamation, with which they paid for the village’s common expenses and procured equipment for wedding or funeral ceremonies. Property of those who fled the village in order to avoid military duties or corvée also came under the control of tong or ri. Another important way for the villages to increase their holdings was the appropriation of the properties of villagers who died without an heir. The Customs Survey Report stated:

• 57 See “Mukō zaisan” under the entry “Tokushu zaisan,” in the investigation report compiled by Chūsūin(...)

44It was widely recognized that a person could donate or entrust his or her property to a village, a temple, or a school in return for the performance of postmortem rituals in his or her favor, and, in the absence of explicit instructions, a similar intent was inferred from the deceased. The transfer of vacant succession property to the village was grounded on the idea that the villagers would perform ancestor rituals on behalf of the deceased. The prospect of an itinerant soul without a funeral service or without a place to visit for regular and proper propitiation needed to be avoided by all means. A report filed by Chūsūin still distinguished between two situations: the one when the deceased donated his property in part or in whole to a tong, ri, or a temple with the request to continue ancestral rituals; and the other when he simply authorized the profits from the property to be used for ritual purposes. In the latter case, the tong, ri, or temple could not dispose of the property. It was possible that an heir could show up later on and demand the return of the property on the grounds that he continued performing ancestral rituals, in which case the village or the temple could not refuse the claim. Thus this report concluded that in most cases tong or ri merely managed the property as a caretaker, without obtaining the full title.57

• 58 Chōsen Sōtokufu Chūsūin, Minji kanshū kaitō ishū, Seoul, 1933, p. 232-233.
• 59 “This court has recognized as Korea’s custom that the property of the deceased without heir belongs (...)
• 60 In this case, the assets became the property of the village, not the property of certain inhabitant (...)
• 61 See “Zekke no isan kizoku ni kansuru ken”, Chūsūin’s reply to the inquiry from Kongju District Cour (...)

45The colonial administrators advised the High Court in 1915: “The property of the deceased without an heir, both the movables and the immovables, reverts to the village (ri, tong) where he had resided”.58 The court accordingly affirmed as Chosŏn’s custom that the vacant succession property became the property of the administrative village where the deceased had resided.59 The main rationale for the reversion of the heirless estate to the village was that it would ensure the continued performance of rituals for the deceased. The use of the property of a decedent without heir, whether a former village member or an outsider, by the fellow villagers in return for performing rituals for him seemed like a logical solution, in harmony with the predominant ritual precepts.60 The reversion of the property to the head of the ri or tong village did not require any special procedure.61

• 62 Martina Deuchler, Under the Ancestors’ Eyes: Kinship, Status, and Locality in Premodern Korea, Camb (...)

46The custom, as implemented by the courts, essentially meant that the assets ought not to leave the village. When the villagers were descendants of the common ancestry, the tracks of land that came to be incorporated in this way into the village ownership were increasingly indistinguishable from lineage property. The prevalence of protective single-surname villages was a sign of the consolidation of the lineage system.62

• 63 Yongwhan Kim, “A Study of Korean Lineage Organization from a Regional Perspective: A Comparison wit (...)

47As seen above, the observance of rituals defined the identity of descent groups in Chosŏn. The needs to mobilize and preserve resources for the purpose of securing burial plots and performing rites provided the key justification for the primogenitary ideology. The central components of lineage property were myosan, the lineage mountain where ancestral graves were located, and wit’o, arable land rented out to cover the ritual expenses. The ritual successor was in charge of their preservation in perpetuity^.63

• 64 Jean Brissaud, A History of French Private Law, Rapelje Howell (translator), Boston, Little-Brown-a (...)

48Preservation of lineage property in Europe is exemplified in the old French custom of substitutions in trust (substitutions fidéicommissaires), also known as trust-entails (equivalent to Familienfideikommiss in Germany; and mayorazgo in Spain). In early modern France, the instruments of fideicommissum, or substitution, were used to prevent the alienation of lineage property.64 The “encumbered” was charged with preserving the property he inherited and bequeathing it intact to the new beneficiary substituted for him. The estate was meant to be kept within the family over generations, lasting beyond the lives of any individual members. In a similar way, lineage members in Korea had the rights to partake in asset distributions but could not dispose of them.

• 65 Martina Deuchler, Under the Ancestors’ Eyes: Kinship, Status, and Locality in Premodern Korea, Camb (...)
• 66 Martina Deuchler, Under the Ancestors’ Eyes: Kinship, Status, and Locality in Premodern Korea, Camb (...)

49For prominent families in Korea, building up corporate wealth was not only a means to maintain and reproduce their autonomous power in villages but also an important economic strategy, when decreasing landed resources and partible inheritance began to threaten their influence.65 Land shortage in Chosŏn helped expedite the rise of the eldest son to the position of the patrilineage’s primogeniture heirship and also propelled the tendency of kin groups to turn the ancestral wealth into a corporate trust headed by the ritual heir. The ultimate objective was to maintain their social status and prestige in uncertain social and economic environments.66 Lineages became the core institutions in local society through the confluence of ritual authority and economic power.

• 67 Martina Deuchler, Under the Ancestors’ Eyes: Kinship, Status, and Locality in Premodern Korea, Camb (...)
• 68 Martina Deuchler, Under the Ancestors’ Eyes: Kinship, Status, and Locality in Premodern Korea, Camb (...)

50Martina Deuchler has distinguished between chongjung and the “associational” or “contractual” munjung group. The former is the pure, official version of a Confucian-style patrilineage, whereas the latter, emerging from the eighteenth century, is a broader category of adult kinsmen within the proper range, sharing the belief of their descent from the common patrilineal ancestry.67 Maintaining sizable properties for chongjung was a critical means for securing dominant position in villages, but munjung featured a more focused aim of growing corporate wealth, so as to procure material resources to perform rites at the gravesites. Munjung grew into “a multigenerational organization of agnates and holding considerable amounts of corporate property”.68 As long as the main function of the lineage institution was to fund ancestral ceremonies, how efficient or rational munchung’s economic choices were is up for debate. As Martina Deuchler put it:

• 70 See Maurice Freedman, Lineage Organization in Southeastern China, London, Athlone Press, 1958; Davi (...)
• 71 Stephanie Po-yin Chung, “From Ancestral Tong to Joint-Stock Company: The Transformation of the Yip (...)
• 72 Yongwhan Kim, “A study of Korean Lineage Organization from a Regional Perspective: A Comparison wit (...)
• 73 The same explanation may apply to differences between community compacts (community agreements init (...)

52From the 1950s, scholars of China began to view the relationship between ancestor rituals and economic activities from a more dynamic perspective. They have shown that in south China, from the sixteenth century, lineage membership grew into lineage trusts.70 A large portion of family land consolidated into joint estates, turning into something comparable to the corporate bodies in the West. The creation of corporate ancestral estates was an important way of minimizing the disintegration of family property as a result of partible inheritance. The descendants jointly held property and made investments together. In these groups, collective ritual initially served as a sort of “informal contract” among kin group members, but the function of lineage for ancestral worship gradually diminished.71 This was in contrast to Korea where the ritual orientation of lineage property remained undiluted. In Korea, a corporate kin group organization was formed primarily for the sake of ritual cooperation of common ancestor veneration. In theory, wit’o was owned collectively by all agnatic descendants, but it was not strictly claimed as a common property by them.72 As the ritual heir inherited the disproportionate portion of the family property, the economic management of common property was not the main concern of the lineage organization. Ritual purposes legitimated lineage properties, imposing permanent injunction against alienation. In short, one observes in China and Korea two different modes of lineage estate under the common influence of Confucianism. Reasons for this divergence can be sought in various factors, but one can point to strong kinship ideology in Korea and social importance attached to ancestral prestige. The deeply entrenched hereditary estate system also reinforced lineage affiliation and devotion to ancestors.73

• 74 Jérôme Bourgon, “‘Uncivil dialogue’. Law and Custom did not Merge into Civil Law under the Qing”, L (...)

53Heightened commitment to rituals and symbolic strategies in Korea had the overall effect of stunting the development of laws dealing with property and succession. Disputes and disruptions in property relations were addressed in terms of moral behaviors and ethical injonctions, rather than legal principles and enforcement measures. The Chosŏn state remained disinterested in the regulation of inheritance, largely indifferent to legal relations among individuals for that matter. Apparently there was little incentive for the state to devise the laws to regulate and control private property. Disputes over inheritance distributions were left to local magistrates, who routinely dismissed the suits declaring that the claims were an “extralegal matter”, outside the realms of the state’s intervention.74 They approached civil matters exclusively as factual questions; specific fact situations, not legal principles, determined the outcome of disputes. The main goal of the magistrate was to reconcile, as much as possible, ritual rules with individual circumstances.

• 75 Kōkichi Nagamo, Genkō Chōsen shinjoku sōzoku hō ruishū, Keijō [Seoul], Osaka Yagō Shoten, 1939 [193 (...)
• 76 Chōsen Sōtokufu, Kanshū chōsa hōkokusho, Seoul, 1913 [1910], # 9.2, p. 36. Kŭng-Sik Chŏng (translat (...)
• 77 Civil Code (Japan), Article 33.
• 78 “In old custom, the ri or tong has the capacity to sue or be sued, and this court has recognized it (...)

57The property of the tong or ri that had come from those who deceased without heir was construed as a sort of foundation (chaedan).75 The ability of tong or ri to administer its own property during the Chosŏn period was viewed as evidence that it had legal capacity.76 This position was in line with the Meiji code which provided that the estate, when it was uncertain whether an heir existed, formed a corporation. The problem was that the Japanese code also stipulated that “No juridical person can be formed unless it is formed pursuant to the applicable provisions of this Code or other laws”.77 It meant a corporation as a legal entity could be created only through legislative enactment, under the authority of the statutes of the state. The colonial High Court circumvented this hurdle by holding that the tong or ri, while not a statutory corporation, could under Korean custom become a party to a lawsuit, and that the head of a tong could make a contract with other tong as its representative.78

• 79 Decision of 27 December 1917 (Taishō 6), Hanketsuroku, t. 4, p. 1192-1198 (the quote is in p. 1196)
• 80 Decision of 27 December 1917 (Taishō 6), Hanketsuroku, t. 4, p. 1192-1198 (the quote is in p. 1196) (...)

58The administrative restructuring on 1 October 1917 turned municipal corporate bodies into government agencies. Through this change, tong or ri came under the jurisdiction of the administrative unit of myŏn, and the latter now managed the property of villages. Subsequently, the High Court ruled that “the custom of the head of a tong or ri acting as its representative is replaced by law, and is no longer in force”.79 In the case of the property collectively owned by the residents, the village name could still be used in litigation in lieu of the individual names of the inhabitants in accordance with Korea’s custom.80

• 81 The Civil Ordinance (Minjirei), Article 13 (equivalent to Japanese Civil Code, Article 177) provide (...)

59In August 1912, the colonial government issued the Chōsen Tochirei (Chosŏn T’ojiryŏng in Korean), ordering nationwide land registration. This cadastre regulation aimed to introduce a modern landownership system. The colonial government initially did not allow the land to be registered under the name of a kin group.81 The gravesites held by munjung for example thus had to be registered with an individual member of the patrilineal group as the rightful owner. Even after the revised rules allowed kinship associations to register under their own names, lands continued to be recorded as if they were the property of a single representative, creating abundant possibilities of ownership dispute.

• 82 Martina Deuchler, Under the Ancestors’ Eyes: Kinship, Status, and Locality in Premodern Korea, Camb (...)
• 83 Decision of 15 October 1915, Hanketsuroku, t. 3, p. 296-298.
• 84 Decision of 18 June 1920, Hanketsuroku, t. 7, p. 267-270.
• 85 Supreme Court of Korea, decision of 29 January 1999, 98Ta33512. The party claiming that the propert (...)

60There was also a question of whether the land recorded as the property of the tong or ri belonged to the villagers in common or to certain lineage members. In practical terms, the difference was who had the right to use the resources from the property. The woods and mountains belonging to the tong or ri had been open to communal use (iphoekwŏn; iriaiken in Japanese), but such resources became increasingly scarce and the rights became more restrictive.82 The ward rosters drawn up by kinsmen were often used to determine who was allowed to use those common resources. The colonial courts consistently treated the question as a factual issue. The extent to which the residents shared the rights to use the property in the village depended on the nature of the ownership.83 In 1920, the High Court affirmed that in Korean custom the residents of the ri held the rights to enter the ri-owned mountain and use its resources.84 This distinction drawn between the property of the tong or ri comprising all village residents and the collective property of the specific members of the lineage was maintained by postcolonial courts.85

• 86 Martina Deuchler, Under the Ancestors’ Eyes: Kinship, Status, and Locality in Premodern Korea, Camb (...)
• 87 Decision of 12 September 1913, Hanketsuroku, t. 2, p. 319-321; Decision of 19 December 1916, Hanket (...)
• 88 Decision of 3 December 1912, Hanketsuroku, t. 2, p. 78-80.
• 89 Decision of 22 June 1917, Hanketsuroku, t. 4, p. 589-593 (following the earlier decision of 3 Decem (...)

61Litigation over lineage property occurred when some kinsmen demanded the dissolution and distribution of myosan or wit’o. In many cases, the original ritual purpose of lineage land had diluted with the passage of time, giving rise to conflicting interests.86 The question centered on whether the property formed the sole ownership of the chongson, the ritual heir, or the ownership in common of the lineage members. As in the cases of the ri or tong property, the Chosŏn High Court treated the ownership dispute as a factual question –who originally obtained the ownership of the land– rather than a legal question. The court admitted there was no definite custom about the ownership of wit’o.87 The court ruled in 1912 that wit’o did not necessarily belong to the chongson and that it could belong to the kinsmen members in common.88 In another case in 1917, the appellant disputed the appellee’s ownership of land, which the latter’s grandfather had purchased and used as burial plots for his parents. He argued that under Korean custom the land or mountain used for gravesites for family members belonged to the lineage, and its members, such as himself, had joint ownership of that land. The High Court rejected his claim that such a custom existed in Korea. With no governing custom, reasoned the court, the ownership of property including burial plots could belong either to the ritual heir alone as an individual or to the munjung or certain branches of the munjung collectively, to be determined as a factual issue.89

• 90 Decision of 21 January 1916, Hanketsuroku, t. 3, p. 380-386.
• 91 Decision of 27 October 1916, Hanketsuroku, t. 3, p. 786-789.
• 92 Decision of 10 October 1917, Hanketsuroku, t. 4, p. 855-860.
• 93 Decision of 23 September 1927, Hanketsuroku, t. 14, p. 321-328.

62There was still the legal question of whether the disputed asset was a property held in common by the descent members or a property owned by the lineage as an independent entity. Jurisprudence was not always consistent. In 1916, the High Court construed wit’o in terms of joint ownership, with or without divisible shares (kongyu). If one of the co-owners disposed of his shares without the agreement of other co-owners, the sale was null and void.90 Any disposition or alienation of the commonly-owned property required the consent of all the co-owners.91 The following year, on the other hand, the court held that, when the mountain belonged to a lineage, its property rights extended to the ritual head, not to the individual members in common.92 From 1927, the court ruled that common ownership of wit’o constituted in custom an ownership in which individuals’ shares were indivisible (habyu).93 These jurisprudential flip-flops attested to the challenges the courts faced, as they tried to streamline the ownership rights over lineage property grounded on Confucian kinship organization and convert them into seemingly ill-suited legal categories.

• 94 Decision of 21 October 1919, Hanketsuroku, t. 6, p. 532-542.
• 95 Decision of 20 July 1926, Hanketsuroku, t. 13, p. 176-182.
• 96 Decision of 17 February 1940, Hanketsuroku, t. 26, p. 70-80.

63The colonial High Court held that there was no custom that the owners of the lineage property could not dispose of the property, regardless of the will of the ancestors to prohibit alienation.94 The sale of the land held in common by munjung or chongjung required the authority granted through its bylaws, while decisions regarding the management of the property, such as the exchanges of properties, could be made by the majority’s agreement.95 When there were no bylaws, custom required a majority decision.96 In general, jurisprudential theories of the colonial courts aimed at protecting the innocent third party in transaction of lineage property; in this process, the courts tended to foster the dissolution of collectively owned estates.

• 97 Supreme Court of Korea, decision of 26 November 1968, 68Ta1543; decision of 27 February 1979, 78Ta1 (...)

64In October 1929, the revisited Civil Procedure recognized the legal capacity of the lineage association to file a suit, and in 1932 chongjung began appearing as a party in litigation. The colonial precedents of distinguishing the property belonging to a lineage association from the property belonging to an individual were consistently upheld by the postcolonial courts as binding customary law, to govern property relations that occurred before the promulgation of the Civil Code of 1958.97

• 98 Pyŏng-Ho Pak, “Myosan, wit’o ŭi kwŏlli chuch’e”, Minsa p’allye yŏngu, t. 2, 1980, p. 5-12.
• 99 Civil Code (Korea), Articles 275-277.
• 100 Civil Procedure (Korea), Article 52; Act for Real Estate Registration (Korea), Article 30.
• 101 See Hui-Gi Sim, “Chongjung chaesan punjaeng ŭi wŏnin kwa haegyŏl pangan ŭi mosaek”, Pŏpsahak yŏngu, (...)

65Ancestral estate occupies a conspicuous place in modern Korean society.98 There are no uniform statutes over the regulation of lineage property. Under the Civil Code, a chongjung is an unincorporated entity, without the status as a legal person, and its property forms a collective ownership of the members. The term used is ch’ongyu, equivalent to gesamteigentum.99 The administration of its property is subject to the bylaws of the association, supplemented by the Civil Procedure and the Act for Real Estate Registration.100 But these laws have often proved inadequate to provide clear standards for adjudicating disputes over the ownership and partition of lineage property. Jurisprudence treats a chongjung or munjung as an unregistered non-profit organization and its members as co-owners of its property, dedicated for specific purposes.101 Beyond that, however, there is an overall lack of jurisprudential coherence, as the courts infer from colonial precedents, corporate law, and even constitutional law. It demonstrates the continuing influence of the long extralegal existence of patrilineal groups.

• 102 The revised Civil Code abolished Article 867 (posthumous adoption) and Article 880 (adoption by tes (...)
• 103 Civil Code (Korea), Articles 1053-1059.

66Both postmortem adoption and adoption by testament, the devices aimed at guaranteeing household succession, had been allowed in the Korean Civil Code of 1958. It was not until 1991 when the revised code came into effect that adoption in Korea shifted from the traditional contractual adoption system grounded on the necessity to continue the family to a modern declaratory adoption system for the sake of the welfare of the child.102 With this change, Korean law became fully caught up with the principles of vacant succession in civil law jurisdictions. In modern Korean law, succession without an heir is dealt with in a clear-cut manner: the statutes prescribe the procedures for the administration of the property when the existence of an heir is uncertain, before the estate may escheat to the state.103 Continuing legal disputes surrounding lineage property –either between a chongjung and its members or between a chongjung and a third party in the course of transactions– show, nevertheless, that the courts in the twenty-first century still struggle with the consequences of the ideological turn Korea had taken over six hundred years earlier.

• 104 See Ernst Bloch, Heritage of Our Times, Neville Plaice and Stephen Plaice (translators), Cambridge, (...)

67Some general reflections on Korea’s legal culture are in order. The evolution of Korean law can be best understood when viewed in terms of its interactions with outside forces. The most critical juncture came during the colonial period. Colonial jurists had to strike a balance between the need to observe Korea’s legal past and the demand for modern laws that could govern private relations and protect individual rights. Judges may have faced what modern scholars call the simultaneity of the non-simultaneous (Gleichzeitigkeit des Ungleichzeitigen).104 The judicial interpretation and recalibration of traditional cultural practices in law amounted to a dialectic of the past (premodern usages) and the present (the civil code). Colonial law brought to relief the uniqueness of the Chosŏn system and accelerated metamorphosis. There is agreement among scholars that the intense process of Japanisierung of European civil law during the Meiji years facilitated Western law’s dissemination in East Asia, and subsequently in Korea. Yet there was a danger that the realities of the colonized society were misrepresented by the colonizer. It is beyond the scope of this Article to discuss whether colonial jurists mischaracterized or even distorted Chosŏn’s succession practices. Yet it seems certain, at a minimum, that the role of the state in private relations changed.

• 105 Civil Code (Korea), Article 1008 (3).
• 106 Civil Procedure (Korea), Article 532 (8) and (9).
• 107 Constitutional Court of Korea, decision of 28 February 2008, 2005 Hŏnba7; Supreme Court of Korea, d (...)

68The abolition of ritual succession in 1933 was an important marker for the growing intervention of the state in the realms that had more or less remained outside of the state’s control. The abrogation of the household headship succession in 1991 represented another milestone in Korean law, reflecting a certain direction of legislative will. Still, vestiges of Confucian ritualism are ubiquitous. For instance, the succession of the property used for performing rituals remains a legally defined right. Under the Civil Code, the individual responsible for performing ancestor worship ceremony inherits the “ritual property” designated to defray the expenses of the memorial service.105 The land reserved for memorial service and the goods used or necessary for performing ceremonies are in that category, treated as special property in law; they are not governed by general property succession laws and are exempt from estate tax or seizure.106 This provision met constitutional challenge, but in 2008 the Constitutional Court sustained its constitutionality, and the Supreme Court subsequently upheld the ritual presider’s right to succeed this specially designated property.107

• 108 For penal law jurisprudence, see Marie Seong-Hak Kim, “Confucianism that Confounds: Constitutional (...)

69The courts’ effort during the last several years to negotiate between Confucian rites and individual rights has given rise to fascinating jurisprudence in both penal and civil law.108 Constitutional contestations against Confucian-influenced laws have a mixed record, and judicial reasoning has not always been consistent or even-handed. In general, the Constitutional Court has tended to refuse to strike down laws that it viewed as the representating Korean tradition or good morals. In the ritual property succession case above, the Constitutional Court appeared keenly mindful of the broad concerns in society that the lack of ritual property would lead to neglecting or abandoning ancestor ceremony.

• 109 James B. Palais, “Confucianism and Economic Development in South Korea”, in Benjamin A. Elman, John (...)

71Since the 1980s, scholars have debated whether Confucianism was an impediment or a stimulus to the development of capitalism in East Asia. The discussion mainly concerns the case of China, and some have embraced in earnest the thesis of “capitalist Confucianism”. The late James Palais, an American historian who was an astute observer of the influence of Confucianism on Korea’s national life, was skeptical. His assessment of the role of Confucianism on the economic development during the Chosŏn era was blunt: “strict Confucians had a zero-sum-game view of the economy” and they believed private property was “the source of selfish and immoral aggrandizement” that threatened the landed wealth of the ruling class.109 Of late, scholars have taken a more moderate view of the supposedly self-serving yangban landlords. Lineage institutions, whether in Europe or in Asia, were the mainstays of the prominent families’ attempt to preserve their social status through the accumulation of clan property. While the main task of the ritual successor in Korea was to appease the souls of the ancestors, the obligation of rites came with special economic privileges. Because the selection of ritual heir meant granting him the control over material resources from lineage land, it was not completely devoid of economic motivation, albeit to a lesser extent compared with the Chinese corporate lineage estates. Ritual propriety had its own dynamic. The zeal of the purest Confucian moralists was not directly conducive to economic growth, but symbolic strategies and measures surrounding lineage rituals created certain protective instrumentalities to ensure social harmony and confront financial pressure.

• 110 See Alan Watson, Legal Transplants: An Approach to Comparative Law, 2nd edition, Athens, University (...)
• 111 For this overriding theme, see Marie Seong-Hak Kim, Law and Custom in Korea: Comparative Legal Hist (...)

73Chŏng Yak-Yong’s defense of primogeniture and the preservation of patrimony on the grounds of social stability was nothing unique. Many jurists in history around the world argued against the partition of noble patrimony. Charles Dumoulin (1500-1566) spoke in favor of primogeniture (droit d’aînesse) in sixteenth-century France. The difference was that Chŏng justified the system primarily in terms of ancestral devotion and ritual duty while Dumoulin did so in terms of public good. In premodern Korea, the sacrosanct realm of ritual propriety left little space for private property relations. The rigid rules of consecrating Confucian rituals had difficulty in readily fitting into the social and economic realities. Colonial judges struggled to reconcile concerns for communal rites with individual rights. Colonial law has invariably been viewed in terms of imperialism and exploitation, but the idea of forcibly imposed legal reception is often overstated. A legal reception takes place only when the people see persuasiveness in the transferred law and accept it.110 This is how Korea underwent a smooth, successful legal transformation.111