Neil Chisholm, D.Phil., Legal Studies
University of Cambridge

Imperial rule, on the Korean peninsula and elsewhere, brings with it foreign laws and legal norms. The Chosŏn Dynasty embraced premodern Chinese legal ideology, while Japanese rule saw the imposition of Japanese law. Yet South Korea today, although independent, continues to borrow much foreign law. How and why is this happening? This paper, based on data gathered through interviews, first explains how contemporary Korean lawyers, judges, law professors, and law-making civil servants adopt foreign law in their work, as growing American influences in these spheres supplant pre-existing German and Japanese traditions. The paper also situates these processes in the theoretical context of ‘legal transplants,’ a surprisingly ordinary phenomenon in global legal history. Korean exceptionalism, today as historically, seems to lie in its receptiveness as an importer of foreign law. The second half of the paper examines why South Korea is adopting foreign law, and considers three theoretical possibilities: that it is motivated by imperialism, modernization, or diffusion. The imperialism explanation suggests that South Korea is being forced by external powers to accept certain laws and legal concepts. Modernization, on the other hand, implies that social evolution inevitably pressures the legal system to reform in certain ways, resulting in resemblances to ‘developed’ foreign systems as the law goes down a more or less set path. The diffusion rationale suggests that legal actors have a choice in borrowing laws and legal ideas, and that they exercise this choice according to various factors. While support can be found for all of these explanations, the paper argues that the diffusion explanation best fits the empirical evidence presented earlier in the paper – that the diffusion of law into Korea is driven by language capabilities, overseas study patterns, prestige perceptions, and the inherently comparative legal analytical style that judges and law-makers adopt in their work.