‘공감역학(共感力學)’의 장(場), 조선후기 판례집의 내러티브

Abstract

This paper aims to analyze the representations of emotional empathy and how they have been operated in narratives of legal writings-Ok’an 獄案 and P’anpu 判付 of Chosŏn dynasty. The representative books of juridical precedents, Ch’ugwanji 秋 官志, Simnirok 審理錄, and Hǔmhǔmsinsǒ 欽欽新書 published in late Chosŏn, not only show how Korean legalization or legal imagination has existed, but also a realistic portrayal and narrative of the age. Also, they deeply reflects the awareness of reality and figuration of the times as well as the discursive practices. However, during late Chosŏn, the way of legal writing by officials were regarded as an one of the serious problems which should be improved for a penal system. Considering these aspects, this paper deals with diverse materials related to aforementioned books, such as collections of literary works of literati and the Annals of Chosŏn dynasty. This work is especially done to contemplate language itself as a critical factors as a representation of cultural convention with the other factors having been formed behind language in and out of legal documents written by penal administrators and also written judgements by a King. Especially, focusing on the emotional empathy in narrative of legal writings which have been approved, excluded, being hierarchically arranged, imagined or forced, this research elucidates the feature of empathy and the operation of empathetic representation in public sphere compressively. As suitable cases to contemplate empathetic narratives, the five precedents of <Forgiveness to avenging[復雪之原]> from Hǔmhǔmsinsǒ were analyzed with Simnirok’s cases together focusing on where the argument and controversy were magnified. It also focuses on parts of the texts in which abundant emotional expressions were applied rather than scientific inquest and legal reasoning. In this context, specific emotions which were not accepted as ‘Confucian emotion’ were excluded and seldom won the empathy. This was directly related with the fact that legal writings such as Ok’an and P’anpu could be written only by male officials who pursuit to enhance the orthodoxy and ideology of Confucian society. Also, when empathy competition was generated between hierarchic literati in charge of juridical interpretation and the accused, or among the literati themselves, the indoctrinated Confucian norms were put before than other factors. This was why the ruled appealed the fact they were realizing Confucian values through exposure of emotion which was a strategy for inducing empathy to receive reduced sentence. The last part of this research suggests the trend of change in perspective on law through Kim Yun-sik 金允植(1835-1922)’s writing. In his writing, the law as a tool for the realization of Confucian norms was regarded as a knowledge which must be acquired by all the people. This means that Confucian moral principles 綱常倫理 which functioned as critical standard for jurisprudential application started to be replaced to other one and this change also affected the change of legal emotion.