형치, 법치, 그리고 덕치 : 조선의 좋은 정치[善政]

Abstract

This study consists of roughly two sections: one to correct the misconception of Confucianism, Governance by Law and Governance by Virtue by adding the concept of Governance by Punishment; and the other to look into their examples from the governance under King Sejong in Joseon Dynasty. No political community can exist as it is without the character of Governance by Law because the physical enforcement represented by law can exist legally only in a political space. This is not different in a Confucian community too. Unlike such persistent and stubborn prejudice of the western scholars, Confucian communities have conceptualized, from two forms of Governance by Law, the 'Agreement' into 'Governance by Virtue' and 'Enforcement' into 'Governance by Punishment' under the cognition that 'Good Politics' are only on the community that maximizes the agreement based Governance by Virtue while minimizing the enforcement based Governance by Punishment. Joseon Dynasty worked also in the same way as she put Confucianism as her national political idea. King Sejong positively used both (enforcement based) Governance by Law in the style of Governance by Punishment and (agreement based) Governance by Law in the style of Governance by Virtue. As he was the best king of Joseon Dynasty, a Confucian country, however, King Sejong performed the idea of DeokJuBeopBo(德主法輔: Governance mainly by virtue with supplementation by law) that maximized Governance by Virtue while minimizing Governance by Punishment. He did not want to perform Governance by Punishment in most cases except for inevitable cases. Even in such inevitable cases, he stood on the Idea for Minimal Punishment. He enacted the acts for the poor and minor group including the acts for the people to accuse their local governors of greed and corruption directly to the central government, the acts to protect the human rights of the slaves from tyranny of their owners and etc, trying to look for the reason of existence of Governance by Punishment only from the original spirit of law that should protect the poor and minor group. Such performance of DeokJuBeopBo by King Sejong was his efforts to realize a community of Governance by Virtue based on the idea to feed and enlighten the people, and it is a valuable model that alerts today's climate prevailed by law, which is like Governance by Punishment.