팥배나무 아래의 재판관 - 《棠陰比事》를 통해 본 유교적 정의

Abstract

This article aims to make a textual analysis for the Tangyin bishi (Parallel cases under the pear tree), one of the earliest Chinese legal literature or case history, from the perspective of “law and literature.” The “law and literature” movement sheds light on the close interrelationship between law and literature. In defining the term “legal literature”, there might be two different approaches: “law in literature” on the one hand and “law as literature” on the other. “Law as literature”, in particular, reflects an increasing tendency to consider law as a “text” that needs literary or cultural interpretations. This approach, however, makes us rethink the Confucian legal tradition that was founded on humanistic concerns. Although the negative understanding of the Confucian legal tradition has been prevalent in modern jurisprudence, the very tradition may not be completely disconnected from contemporary legal culture in that it endeavored to overcome the gap between the law and social reality by consistently resisting the abstract, universal, and absolute application of the law. As a matter of fact, a new tendency to highlight humanistic concerns and pay attention to hermeneutic approaches in contemporary jurisprudence has resulted from the practical intention to resolve the gap between legal rules and legal realities. The Tang'in bishi is remarkable in that it explored the interrelationship between law and literature. More often than not, the text has been misunderstood as a classical narrative lacking in narrativity or underestimated as a legal text lacking in specialist knowledge. However, the Tangyin bishi should be reconsidered as a truly unique text on the ground that it attempted at constructing the paradigm of legal rationality or public rationality with literary patterns and representing the ideal of a Confucian judge in a wide variety of case examples. This article sheds light on the representation of “Confucian justice” in the Tangyin bishi, which attempts at crossing the thin line between law and literature, rationality and emotion, and ideal and practice. The text should not be taken as a simple moral fable. For it provides various case examples for practical legal reasoning.