Law and Emotion: Tension between Filiality and Fidelity in a Property Dispute of Early Chosŏn Korea
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Emotions have been commonly accepted as antithetical to law in Western scholarship. The conventional wisdom on law and emotions has clearly demarcated the line between the two and treated them as mutually exclusive entities. However, recent scholarship has challenged this separation and recognized the role of emotions in law with the rise of the “cognitive turn” in the study of emotions. In the context of Chosŏn Korea (1392~1910), when examining the legal practice, it is evident that law and emotions are mutually constitutive. The two pillars of Confucian ethics, filial piety and fidelity, often played an important role in determining the outcome of cases. By closely examining a property case that occurred between Madam Chŏng and her son-in-law in the mid-fifteenth century, I show how humane feelings, or inchŏng人情, related to filiality and fidelity were crucial factors in judging the case. Through the investigation of discourse that took place among high-ranking bureaucrats at the central court, the paper demonstrates how Confucian familial relationships, such as those between a parent and a child and between a husband and a wife, were not fixed but were flexibly construed familial bonds and how the kernel of the case was deciding whether the emotions of filiality preceded fidelity.
Abstract
Emotions have been commonly accepted as antithetical to law in Western scholarship. The conventional wisdom on law and emotions has clearly demarcated the line between the two and treated them as mutually exclusive entities. However, recent scholarship has challenged this separation and recognized the role of emotions in law with the rise of the “cognitive turn” in the study of emotions. In the context of Chosŏn Korea (1392~1910), when examining the legal practice, it is evident that law and emotions are mutually constitutive. The two pillars of Confucian ethics, filial piety and fidelity, often played an important role in determining the outcome of cases. By closely examining a property case that occurred between Madam Chŏng and her son-in-law in the mid-fifteenth century, I show how humane feelings, or inchŏng人情, related to filiality and fidelity were crucial factors in judging the case. Through the investigation of discourse that took place among high-ranking bureaucrats at the central court, the paper demonstrates how Confucian familial relationships, such as those between a parent and a child and between a husband and a wife, were not fixed but were flexibly construed familial bonds and how the kernel of the case was deciding whether the emotions of filiality preceded fidelity.
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