An Ancient Precedent:

•期刊原文

An Ancient Precedent:
Reflections on the Tale of Korea's Abolitionist King

Damien P. Horigan[*]

Korean Journal of International and Comparative Law

Volume 29 (December 2001)

Pages 87-106

Seoul, South Korea

Copyright by Damien P. Horigan 2001

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p. 87
I. Introduction
As we enter a new millennium, the debate surrounding the continued use of capital punishment in certain jurisdictions remains as one of the regular features of policy discussions involving both criminal law as well as human rights law.

Many nations have abolished the death penalty and there is a clear global trend towards abolition(1). Furthermore, there are major international agreements in this area namely, Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms(2), the Second Optional Protocol to the International Covenant

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* Assistant Professor, Ewha Graduate School of International Studies, Seoul, South Korea. Member of the Hawaii and United States Supreme Court bars. BA, University of Hawaii at Hilo, MA, University of New Brunswick (Canada), JD, William S. Richardson School of Law, University of Hawaii at Manoa.
Graduate student research assistance was provided by Ms. Courtney Cho and Ms. Eun-Jung Kim. Funding for this research was provided, in part, by an Ewha grant.

1) AMNESTY INTERNATIONAL, REPORT 2001 14-15 (2001) [hereinafter "AI REPORT"]; Amnesty International USA, The Death Penalty List of Abolitionist and Retentionist Countries (last visited 15 November 2001). http://www.amnestyusa.org/abolish/abret.html; Amnesty International, Abolitionist and Retentionist Countries (last visited 15 November 2001); http://www.web.amnesty.org/rmp/dplibrary.nsf/ba4275cdead20d8580
25677e0059735b
/daa2b602299dded0802568810050f6b1!OpenDocument.

2) Protocol No. 6 to the European Convention, Eur. T.S. 114. This protocol was adopted by the Council of Europe on 28 April 1983, and entered into force on 1 March 1985.

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on Civil and Political Rights(3), and the Protocol to the American Convention on Human Rights to Abolish the Death Penalty(4). However, the United States has not even signed, let alone ratified, either the Second Optional Protocol to the International Covenant on Civil and Political Rights or the Protocol to the American Convention on Human Rights to Abolish the Death Penalty despite being a leading member of both the United Nations and the Organization of American States.(5)

With the June 2001 lethal injection of Timothy McVeigh, executions at the federal level have been resumed in the United States after a period of 38 years.(6) By contrast, at the state level, executions have become regular events in certain states of the union since Gary Gilmore faced a Utah firing squad in January 1977.(7) However, it should be noted that some U.S. jurisdictions have abolished the death penalty for state crimes.(8)

The death penalty is also an issue for the Korean Peninsula.(9) This article will first

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3) Second Optional Protocol, Aiming at the Abolition of the Death Penalty, U.N. G.A. Res. 44/128, 44 U.N. GAOR. Supp. No. 49 at 206, U.N. Doc. A/44/49. This optional protocol was adopted by the UN General Assembly on 15 December 1989, and entered into force on 11 July 1991.
4) Protocol to the American Convention on Human Rights to Abolish the Death Penalty, O.A.S. T.S. No. 73, O.A.S. G.A. Res. 1042, 20th Sess. (8 June 1990). As this article is being written, the following states have deposited instruments of ratification, acceptance, or accession for this protocol with the General Secretariat of the Organization of American States: Brazil, Costa Rica, Ecuador, Nicaragua, Panama, Paraguay, Uruguay, and Venezuela. In addition, Chile has recently signed the protocol.

5) Only European countries are members of the Council of Europe.

6) Christopher S. Wren, "U.S. Executes McVeigh for Oklahoma Bombing" INTERNATIONAL HERALD-TRIBUNE (Seoul ed.) 12 June 2001, at 1, 3; Amnesty International USA, 11 June 2001 Press Release, "First Federal Execution since 1963 - Vengeance Triumphs Over Justice" (last visited 15 November 2001). http://www.amnestyusa.org/news/2001/usa06112001_2.html.

7) The states were given a federal constitutional green light by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153 (1976) and Woodson v. North Carolina, 428 U.S. 280 (1976).

8) The author's home state of Hawaii is a good example of a jurisdiction that has outlawed capital punishment. According to Amnesty International, as of 8 November 2001, a total of a dozen states plus the District of Columbia are in the abolitionist category. Amnesty International USA, Death Penalty: Facts & Figures, U.S. Executions by State (last visited 15 November 2001). http://www.amnestyusa.org/abolish/retentionist-state.html.

9) In writing Korean words and names in English for this article, the author has decided to partly yet not completely follow the Republic of Korea's new and controversial method of Romanization. The main reasons for this decision are: 1) the new system appears to be destined to become the dominant method of Romanization in South Korea; and 2) the complete [9) cont.]

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briefly describe the current situation in the two Koreas and the local anti-death penalty movement before turning to an examination of an ancient Korean precedent for abolition based on an understanding of Buddhist teachings.

II. Capital punishment in the two Koreas
As this article is being written, the Republic of Korea (hereinafter "ROK" or "South Korea") has retained the option of using capital punishment. Section 41 of the ROK Penal Code provides for the use of the death penalty as one of nine different kinds of punishment.(10) The method of execution proscribed in the ROK Penal Code is hanging in a prison.(11)

Besides the crime of murder, violations of certain provisions of the controversial ROK

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9) cont. lack of diacritical marks makes for a more computer-friendly transliteration.
Various articles on this system can be found in Spring 2001 issue of the KOREA JOURNAL. See, e.g., National Academy of the Korean Language, "The Government's New System of Romanization for the Korean Language." KOREA JOURNAL 215 (Spring 2001).

Of course, where the preferences of the individuals or organizations are known, then I have elected to follow such spellings for personal or institutional names. In addition, in a couple of other instances rigidly following the new system would have generated some awkward results. So, I ask for the reader's indulgence in this regard.

Regarding the limited number of terms and names from other Asian languages, for the sake of simplicity and consistency, I have decided to avoid all diacritical marks in this article. Similarly, for European languages other than English, I have decided to avoid accent marks.

10) Hyeong-beop Je 41 Jo [ROK PENAL CODE, § 41].

A semi-official English translation of the Penal Code is contained in KOREA LEGISLATION RESEARCH INSTITUTE, 4 STATUTES OF THE REPUBLIC OF KOREA (1997 & regularly updated). The government's English version of the law is actually entitled "Criminal Act," but I feel that "Penal Code" is a better translation. Likewise, I prefer to translate the eleven-stroke Sino-Korean word "jo" (條) as "section" rather than "article." Here I am essentially adopting a method used by J. Mark Ramseyer and Minoru Nakazato in translating Japanese legal terms into a form of English that sounds natural to lawyers who are native speakers of English. J. MARK RAMSEYER & MINORU NAKAZATO, JAPANESE LAW: AN ECONOMIC APPROACH xix (1999).

11) ROK PENAL CODE, § 66.

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National Security Law are technically capital offenses.(12) In the past, the National Security Law was often used by South Korean military regimes to suppress legitimate political opposition.(13)

Another concern about the continued existence of capital punishment as a possible sanction in the ROK is that South Korean criminal procedure is often viewed as not providing an adequate level of protection for the rights of criminal defendants.(14)

The Democratic People's Republic of Korea (hereinafter "DPRK" or "North Korea") also retains the use of the death penalty.(15) Given the extremely closed nature of North Korean society, little can be said for sure about the DPRK's use of capital punishment, but capital punishment seems widespread. There are reports of numerous concentration camps and firing squads being used with some executions having apparently been carried out in public before large crowds for propaganda purposes.(16) Furthermore, DPRK border guards are believed to have orders to shoot North Koreans fleeing the country.(17)

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12) Gukga Boanbeop Je 3 Jo; Je 6 Jo [NATIONAL SECURITY LAW, §§ 3; 6].
See also, MINBYUN/LAWYERS FOR A DEMOCRATIC SOCIETY, HUMAN RIGHTS IN SOUTH KOREA: THE SECOND COUNTER REPORT TO THE SECOND PERIODIC REPORT OF THE REPUBLIC OF KOREA UNDER ARTICLE 40 OF THE INTERNATIONAL CONVENANT ON CIVIL AND POLITICAL RIGHTS 18-20 (1999) [hereinafter "HUMAN RIGHTS IN KOREA II"]; Kuk Cho, "Korean Criminal Law: Moralist Prima Ratio for Social Control." 1 J. KOREAN L. 77 (2001).

13) Jong-sup Chong, "Political Power and Constitutionalism" in, RECENT TRANSFORMATIONS IN KOREAN LAW AND SOCIETY 11 (Dae-Kyu Yoon, ed., 2000); Kun Yang, "The Constitutional Court and Democratization" in, RECENT TRANSFORMATIONS IN KOREAN LAW AND SOCIETY 33 (Dae-Kyu Yoon, ed., 2000); "Reform measures face battle in Assembly" THE KOREA TIMES (Seoul), 18 June 2001, at 2-3; Joo-hee Lee, "Fewer security law violators under Kim Dae-jung gov't" THE KOREA TIMES, 18 June 2001, at 3.

14) Kuk Cho, "The Reform of Korean Criminal Procedure after Democratization" in, RECENT TRANSFORMATIONS IN KOREAN LAW AND SOCIETY 135 (Dae-Kyu Yoon, ed., 2000).

15) AI REPORT, supra note 1, at 148.

16) R.J. RUMMEL, DEATH BY GOVERNMENT 365-379 (paperback ed. 1997). Rummel describes the DPRK as being Orwellian. He estimates that the number of people killed by the North Korean regime since its establishment more than half a century ago is in the range of anywhere between seven hundred ten thousand (710,000) to more than three and a half million (3,500,000). Rummel's mid-range estimate is around one million six hundred thousand (1,600,000) people killed.

17) U.S. Department of State, Country Reports on Human Rights Practices, Korea, Democratic People's Republic of (released in February 2001) (last visited 15 November 2001). http://www.state.gov/g/drl/rls/hrrpt/2000/eap/index.cfm?docid=726.

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III. Abolitionist Sentiment in South Korea
In recent years, as South Korea has become a more open and democratic society, well-organized opposition to government policies such as the death penalty has become a normal feature of South Korean politics. Religious leaders along with lawyers and other human rights activists have become active in urging the ROK government to abolish the death penalty.(18) Various bills have been introduced in the National Assembly to eliminate the death penalty.(19)

It should be noted here that President Kim Dae Jung himself was once a condemned man. In 1980, Kim Dae Jung was sentenced to death in the aftermath of the coup d'etat carried out by Chun Doo-hwan.(20) Although he was eventually released from prison, President Kim appears not to have forgotten what it is like to be on death row. While the death penalty is still on the books in South Korea, at the time of writing, no executions are known to have taken place in the ROK since Kim Dae Jung became president.(21)

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18) "Politicians urged to abolish death penalty." THE KOREA HERALD (Seoul), 8 June 2001, at 2; "Cardinal Kim meets death-row inmates to discuss abolition of death penalty." THE KOREA HERALD, 27 October 2001, at 3; Kang Seok-jae, "Cardinal Kim to press politicians for abolition of death penalty," THE KOREA HERALD, 9 November 2001, at 3; Kim Hyung-jin, "Cardinal Kim urges quick legislation of ban on capital punishment." THE KOREA HERALD, 12 November 2001, at 3; "Cardinal Calls for Abolishing Death Penalty." THE KOREA TIMES, 12 November 2001, at 2.
19) "Abolition of Death Penalty Debated." THE KOREA TIMES, 29 January 2001, at 2.; HUMAN RIGHTS IN SOUTH KOREA II, supra note 12, at 19; Sohn Suk-joo, "Lawmakers Present Bill to Abolish Death Penalty." THE KOREA TIMES, 31 October 2001, at 2; "Attempt to abolish death penalty sparks debate." THE KOREA HERALD, 31 October 2001, at 2-3; Lee Chi-dong, "Controversy on Capital Punishment Rekindles." THE KOREA TIMES, 1 November 2001, at 3; "Closing death row," THE KOREA HERALD, 7 November 2001, at 6.

20) Cheong Wa Dae, Office of the President of the Republic of Korea, President: A Biographical Sketch (last visited 15 November 2001). http://www.cwd.go.kr/english/president/bio.

21) AI REPORT, supra note 1, at 150.

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IV. An Ancient Korean Precedent for Abolition
1. The Precedent

Although both Koreas currently retain the death penalty, there is a Korean precedent for the abolition of capital punishment. This precedent is an ancient one. In fact, it predates the writings of the Italian philosopher and early European abolitionist Cesare Beccaria (1738-1794) by more than a thousand years.(22)

In a nutshell, during Korea's so-called Three Kingdoms Period, one of the kings of Baekje (百濟) (circa 18 B.C.E. to 660 C.E.) abolished capital punishment.(23)

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22) Beccaria advocated reforming the criminal justice systems of Europe. His proposals included abolishing capital punishment. Incidentally, he also wrote on political economy. Eberhard Weis, "Beccaria, Cesare, Marchese (1738-1794)" in, JURISTEN: EIN BIOGRAPHISCHES LEXIKON: VON DER ANTIKE BIS ZUM 20. JAHRHUNDERT 72-73 (Michael Stolleis, ed., 2nd ed., 2001) [in German]; FRANK MUELLER, STREITFALL TODESSTRAFE 97 (1998) [in German].
Of course, torture and executions had been widely used in Europe for centuries. See, e.g., CRIMINAL JUSTICE THROUGH THE AGES: FROM DIVINE JUDGEMENT TO MODERN GERMAN LEGISLATION (Christoph Hinckeldey, ed. & John Fosberry, trans.) (Volume IV b, Publications of the Mediaeval Crime Museum, Rothenburg ob der Tauber, Germany, 1993).

23) The main account can be found in the Samguk Yusa (三國遺事), which is an unofficial history of Korea's Three Kingdoms composed by the Buddhist monk Ilyeon (一然) (1206-1289). Ilyeon, also often spelt Ilyon, lived during the Goryeo (高麗) Dynasty (918-1392). An older yet shorter account can be found in the Samguk Sagi (三國史記), which is a history of the same era written by a Goryeo court official by the name of Gim Bu-sik (金富軾) (1075-1151). Of course, the "state religion" of Goryeo was Buddhism, but Confucianism played a role in official life.

Both works were written in Classical Chinese. They have since been translated into Modern Korean. The Samguk Yusa has also been translated into English, but, to the best of the author's knowledge, the Samguk Sagi has not been translated into English or, for that matter, into any other Western language. The author has consulted the following versions of the Samguk Yusa and Samguk Sagi: ILYON, SAMGUK YUSA: LEGENDS AND HISTORY OF THE THREE KINGDOMS OF ANCIENT KOREA (Ha Tae-Hung & Grafton K. Mintz, trans. 1972) (hereinafter "HA & MINTZ"); ILYEON, SAMGUK YUSA (Lee Min-su, trans., 1994) [Text in Classical Chinese and Modern Korean] [hereinafter "LEE"]; ILYON, SAJIN GWA HAMKKE ILNUN SAMGUK YUSA [PICTORIAL SAMGUK YUSA] (Sang-ho Ri, trans. & [23) cont.]

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But, what do we know about Baekje? Who was its abolitionist ruler? And, why did he decide to outlaw the death penalty?

2. The Country

Baekje was one of the Three Kingdoms of Korea. The other kingdoms were Silla (新羅) and Goguryeo (高句麗).(24)

These were states that co-existed on the Korean Peninsula just before and during much of the first millennium of the Common Era. Baekje occupied what can be roughly described as the southwestern portion of the Korean Peninsula.

It is well-known that Buddhism played a major role in Baekje society and culture.(25) The traditional date for the introduction of Buddhism into Baekje is 384 C.E. It is said that during that year an Indian or possibly Central Asian monk arrived in Baekje by ship from China.(26)

Buddhism in Baekje is important not only for the study of Korean history, but also for the study of Japanese history. The reason for this is that Baekje is credited with spreading Buddhism from Korea to Japan.(27)

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23) cont. Eun-gu Gang, photo., 1999) [in Modern Korean only] [hereinafter "RI"]. BU-SIK GIM, SAMGUK SAGI (Jae-ho Lee, trans., 1997) [Three volumes in Classical Chinese & Modern Korean] [hereinafter "GIM"].
24) During a part of the Three Kingdoms Period a fourth political entity existed on the Korean Peninsula. This fourth state, about which little is known, was called Gaya (伽倻). Gaya was evidently a loose confederation of tribes centered around what is now Gimhae near Busan.

25) See, e.g., BUDDHIST THOUGHT IN KOREA passim (The Korean Buddhist Research Institute, ed., 1994); WILLIAM E. HENTHORN, A HISTORY OF KOREA 58 (1971) [hereinafter "HENTHORN"].

26) KAKHUN, LIVES OF EMINENT KOREAN MONKS: THE HAEDONG KOSUNG CHON 45 (Peter H. Lee, trans., 1969); Young-tae Kim, "Buddhism in the Three Kingdoms," in THE HISTORY AND CULTURE OF BUDDHISM IN KOREA 37, 48-49 (The Korean Buddhist Research Institute, ed., 1993) [hereinafter "BUDDHISM IN KOREA"].

27) YOSHIRO TAMURA, JAPANESE BUDDHISM: A CULTURAL HISTORY 16, 26 (Jeffrey Hunter, trans., 2000). See also, WONTACK HONG, PAEKCHE OF KOREA AND THE ORIGIN OF YAMATO JAPAN (1994); JON CARTER COVELL & ALAN COVELL, KOREAN IMPACT ON JAPANESE CULTURE (1984).

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3. The King

The ruler's personal name was Seon (宣). Seon is the Korean reading of a nine-stroke Chinese character that could be translated into English as "proclaim," "display," "spread," "wide," or "comprehensive."(28)

He was also sometimes called Hyosun (孝順). The pair of a seven-stroke character and a twelve-stroke character in the name Hyosun could be translated as "Filial Piety" or perhaps "Filial Obedience."(29) While the concept of Filial Piety is not completely absent from Buddhism, the term is normally more readily associated with Confucianism than with Buddhism.(30)

This would seem to suggest one of two things.

One possible explanation is that there was a considerable level of Confucian influence in Baekje at the time. Certainly, there must have been some awareness of Confucianism because Baekje had already been greatly shaped by Chinese civilization. To varying degrees, Buddhism, Confucianism, and Taoism were all parts of the cultural package(31)

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28) BRUCE K. GRANT, A GUIDE TO KOREAN CHARACTERS 128 (2nd rev. ed., 1982) [hereinafter "GRANT"]. See also, LI JIN-MIEUNG ET AL, DICTIONNARIE DES CARACTERES SINO-COREENS 110 (1993) [in French] [hereinafter "LI"].
29) GRANT, supra note 28, at 82, 231; LI, supra note 28, at 87, 163.

30) WILLIAM EDWARD SOOTHILL & LEWIS HODOUS, A DICTIONARY OF CHINESE BUDDHIST TERMS 236 (photo. reprint 1975) (1937) [hereinafter "SOOTHILL & LEWIS"]. ROGER T. AMES & HENRY ROSEMONT, JR., TRANS., THE ANALECTS OF CONFUCIUS: A PHILOSOPHICAL TRANSLATION 58-59 (1998).

31) In using the term "cultural package," I am borrowing an expression from Andrew Huxley. Huxley, a British specialist on Burmese law and Buddhist law, has spoken of a "Pali Cultural Package" that was adopted by various predominately Buddhist cultures in Southeast Asia. Andrew Huxley, "Sanction in the Theravada Buddhist Kingdoms of S.E. Asia." RECUEILS DE LA SOCIETE JEAN BODIN 335 (1992).

Korea's package, of course, was a mostly Chinese one. Even the flavor of the Buddhism that constituted a major component of Korea's package had already been modified by the Chinese and, before them, the Central Asians from the Indian original. In other words, Korea received an essentially Sincized Buddhism along with the Chinese ideologies of Confucianism and Taoism.
The Taoist influence is perhaps the least understood item due in part to the considerable mixing of Taoism, broadly defined, with Korean Shamanism. Nevertheless, Taoism does unmistakably pop up from time to time. For instance, the ROK national flag has a partly[31) cont.]

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that Baekje had received from China.(32) The extent of Confucian influence on the Three Kingdoms of Korea has been the matter of some debate with certain South Korean historians suggesting that the level of Confucian influence on the Three Kingdoms was greater than previously thought.(33)

Alternatively, however, the name might actually represent an interpolation by a Confucian scholar working perhaps generations after the king's reign. Of the two surviving accounts, even the older Samguk Sagi was composed roughly four hundred years after the death of King Beop. So, there was certainly sufficient time to allow for both intentional modifications like interpolations and unintentional modifications such as copyist errors. Specifically, Ha and Mintz in their translation of the Samguk Yusa note a suspicious passage in another part of the Samguk Yusa that is decidedly Confucian and even anti-Buddhist in tone.(34)

A little creative Confucian historiography is likely because Confucianism has often been perceived as having been rather weak in Korea during the Three Kingdoms Period when Buddhism was a major influence. Regardless of the probability of such rewriting of history, it seems clear that Confucianism in the Three Kingdoms Period did not enjoy the high degree of ideological dominance that Confucianism or, to be more precise, Neo-Confucianism(35) would ultimately achieve during the Joseon (朝鮮) Dynasty

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31) cont. Taoist feel with its unique yin and yang symbol in the center.
32) The topic of "Religion and Law in Korea" was the subject of a 1969 paper by Pyong-choon Hahm covering Confucianism, Buddhism, and Shamanism. Although Hahm's survey is useful, it needs to be approached with caution. Hahm's view of Korean Buddhism is somewhat negative and potentially misleading. He clearly felt more comfortable with Confucianism or, for that matter, Christianity. The paper has been reprinted in PYONG-CHOON HAHM, KOREAN JURISPRUDENCE, POLITICS AND CULTURE 152 (1986). Classical Chinese legal codes that contain elements of either Confucianism or the school of thought known as Legalism were imported from China at different points in Korean history including the Three Kingdoms Period. Pyong-Ho Pak, "Characteristics of Traditional Korean Law" in, LEGAL SYSTEM OF KOREA 13 (International Cultural Foundation, Korean Culture Series, Volume 5, Shin-yong Chun, ed,, 1982).

33) Chongsuk Ri, "Confucian Thought in Ancient Korea: Recent Trends in the Republic of Korea's Historical Community" 8 ASIAN RESEARCH TRENDS: A HUMANITIES AND SOCIAL SCIENCE REVIEW 41 (1998).

34) HA & MINTZ, supra note 23, at 138. The passage in question involves the last king of Shilla.

35) By Neo-Confucianism, I am referring to the movement to revive Confucianism that began in [35) cont.]

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(1392-1910).(36) Indeed, Korea's last dynasty frequently suppressed Buddhism.(37)

In any event, the man's royal name was King Beop i.e., Beop Wang in Korean (法王). The two Chinese characters used for this man's royal name could be literally translated as "Law King."(38) The eight-stroke character "beop" is routinely used to mean "law" in the secular sense as well as "law" in the meaning of Dharma viz., Buddhist law, Buddhist truth, and so on. The four-stroke character "wang" simply means "king" or "royal." The Sanskrit equivalent of this pair of characters would be "Dharma-raja," which can be interpreted as being a title for the Buddha.(39)

Thus, we have one name that sounds Confucian and another that sounds Buddhist. For our purposes, the Buddhist royal name is more important than the Confucian given

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35) cont. China and then slowly spread to Korea, Vietnam, and, to some extent, Japan. Zhu Xi (1130-1200) from China is perhaps the most familiar Neo-Confucian thinker to Western readers with an interest in East Asian history, philosophy, or religion.
The two best-known Korean Neo-Confucian scholars are Yi Hwang (1501-1570) (honorific name: Toegye) and Yi I (1536-1584) (honorific name: Yulgok). Portraits of these gentlemen grace the front of South Korea's one thousand and five thousand won banknotes, respectively. Images of buildings associated with the two scholars appear on the reserve sides.

36) CHONGKO CHOI, BEOPCHEOLHAK [JURISPRUDENCE] 697 (1997). Although this book is mostly in Korean, it does contain an English version of Prof. Choi's 1996 conference paper on "Confucianism and Law in Korea." For a study of the role of Neo-Confucianism in the Joseon Dynasty, see WILLIAM SHAW, LEGAL NORMS IN A CONFUCIAN STATE (Center for Korean Studies, University of California, Berkeley, Korea Research Monograph, No. 5, 1981).

37) Kee-Jong Kwon, "Buddhism undergoes Hardships: Buddhism in the Choson Dynasty" in, BUDDHISM IN KOREA, supra note 26, at 169-218; Han U-gun, "Policies Toward Buddhism in Late Koryo and Early Choson," in BUDDHISM IN THE EARLY CHOSON: SUPPRESSION AND TRANSFORMATION (Center for Korean Studies, University of California, Berkeley, Korea Research Monograph, No. 23, Lewis R. Lancaster & Chai-shin Yu, eds., 1996). See also, Hahm's 1966 essay on the Korean political tradition and law, which, among other things, compares and contrasts the policies of Korea's last two dynasties towards Buddhism and Confucianism. This piece has been reprinted as the first chapter in PYONG-CHOON HAHM, THE KOREAN POLITICAL TRADITION AND LAW: ESSAYS ON KOREAN LAW AND LEGAL HISTORY (Royal Asiatic Society, Korea Branch, Monograph Series Number 1, 1967).

38) GRANT, supra note 28, at 45, 115; LI, supra note 28, at 67, 104.

39) SOOTHILL & HODUS, supra note 30, at 271; YUHO YOKOI, THE JAPANESE-ENGLISH ZEN BUDDHIST DICTIONARY 238 (1991) [hereinafter "YOKOI"]; HISAO INAGAKI & P.G. O'NEILL, A DICTIONARY OF JAPANESE BUDDHIST TERMS 111 (4th ed. 1992). [hereinafter "INAGAKI & O'NEILL"].

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name. To be fair, in theory at least, the Buddhist-sounding royal name could be a revision of history at the hand of some Buddhist monk. Yet, I feel that a Buddhist revision is less likely than the possible Confucian interpolation.

Be that as it may, King Beop might have selected his royal name for the purpose of being seen as a Cakravarti-raja. This is a Sanskrit term that can be translated as "Wheel-Rolling King" or more freely as "Universal Monarch."(40) In India, Early Buddhism developed a concept of a "Righteous Universal Ruler" or "Cakkavatii dhammiko dhammaraja" to use the full Pail version of the expression.(41)

This concept represents a Buddhist notion of ideal kingship. The ideal king is a protector of his people, he conquers by means of righteousness (Dharma in Sanskrit; Dhamma in Pali) rather than violence, his rule leads to the creation of a new and just social order, and he supports worthy members of the religious community.(42)

The ideal Buddhist king does not act arbitrarily. He avoids favoritism, malice, delusion, and fear. He must rule himself along with his kingdom. Indeed, the welfare of the entire kingdom depends on the morality and the righteousness of the Dharma-raja.(43)

If the king were to become unrighteous, then he would no longer be a worthy ruler. Accordingly, the people could remove him from power.(44)

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40) YOKOI, supra note 39, at 773; INAGAKI & O'NEILL, supra note 39, at 344-345.
41) UMA CHAKRAVARTI, THE SOCIAL DIMENSIONS OF EARLY BUDDHISM 150 (1987) [hereinafter "CHAKRAVARTI"].

42) CHAKRAVARTI, supra note 41, at 163-167. See also, SIDDHI BUTR-INDR, THE SOCIAL PHILOSOPHY OF BUDDHISM 145-156 (3rd ed. 1995).

43) Buddhism is certainly not alone in emphasizing the need for ethical leaders. A wide range of philosophers and religious thinkers throughout the ages has taught about virtuous statecraft. A survey of the many traditions involved is beyond the scope of this article. However, for our purposes, besides Buddhism, Confucianism is especially relevant. Confucianism teaches that the ruler should possess the proper moral qualities. In the Confucian concept of justice, it is more important for a state to have a virtuous ruler than a set of well-defined positive laws. See, e.g., Jung Karp Suhr, "Confucian Teaching on Law and Justice," in SANG HYUN SONG, INTRODUCTION TO THE LAW AND LEGAL SYSTEM OF KOREA 43-45 (1983). Suhr's chapter contains selections from his 1970 University of Oklahoma Ph.D. dissertation.

44) SOMBOON SUKSAMRAN, BUDDHISM AND POLITICAL LEGITMACY 25-32 (Chulalongkorn University Research Report Series, No. 2, 1993). This points to a certain democratic spirit in Buddhism.[44) cont.]

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Although the notion of Buddhist kingship is often associated with the Indian Subcontinent(45) and certain societies in Southeast Asia, it has also influenced the shape of Buddhism in China and other parts of Northeast Asia. In the Chinese tradition, the teaching on Buddhist kingship developed into a special form of Buddhism that was used to protect the state in a quasi-magical way. This later spread to certain neighboring countries like Korea and Japan.(46)

King Beop is typically counted as being the twenty-ninth monarch of Baekje.(47) His brief reign is generally thought to have occurred during 599-600 CE.(48)

4. The Ban on Killing

Non-violence, or ahimsa,(49) is an important concept in Buddhism.(50) Abstaining from

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44) cont. For a contrary view, arguing that Buddhism does not permit collective peaceful protests let alone violent revolts against the state, see SURAJ NARIAN SHARMA, BUDDHIST SOCIAL AND MORAL EDUCATION 73 (1994). Whereas many Buddhists would likely agree that violent revolts should be avoided, most would presumably want to be able to maintain the option of resorting to peaceful protests against an evil state.
45) In this context, it should be recalled that India at the time of the Buddha was home to both monarchies and republics. CHAKRAVARTI, supra note 41, at 7-16. These early republics might have influenced the organizational structure of Early Buddhist monastic communities. Regardless of whether they were truly democratic or not, the monastic communities were egalitarian in so far as the ancient Hindu concept of caste was rejected. HEINZ BECHERT, BUDDHISM AND SOCIETY 3-4 (The Wheel Publication No. 265, 1979).

46) See generally, CHARLES D. ORZECH, POLITICS AND TRANSCENDENT WISDOM: THE SCRIPTURE FOR HUMANE KINGS IN THE CREATION OF CHINESE BUDDHISM (Hermeneutics: Studies in the History of Religions, 1998).

47) See, e.g., BYEONG-JU IM, SAMGUK WANGJO SILNOK [CHRONICLES OF THE THREE KINGDOMS] 293, 516 (1998).

48) Id. at 293, 516.

49) This term is derived from the Sanskrit word "a-hims-aka" meaning "doing no harm" or "harmlessness." ARTHUR ANTHONY MACDONELL, A PRACTICAL SANSKRIT DICTIONARY: WITH TRANSLITERATIONS, ACCENTUATION, AND ETYMOLOGICAL ANALYSIS THROUGHOUT 36 (photo reprint ed. 1965) (1929). See also, VAMAN SHIVRAM APTE, THE STUDENT'S ENGLISH-SANSKRIT DICTIONARY 197 (reprint ed. 1974) (3rd ed. 1920).

50) As is perhaps to be expected of a religion that has existed in various parts of Asia for roughly two and a half millennia, from time to time, there has been some Buddhist justification for [50) cont.]

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taking life is the first of the Five Precepts or Five Training Rules (Panca-sila) that lay Buddhists are encouraged to follow.(51) In modern times, ahimsa has become a major part of Buddhist social movements that are collectively referred to as Engaged Buddhism.(52)

Karma plays a role in the Buddhist approach to non-violence. Avoiding the imposition of death sentences can be important in a legal system influenced by Buddhism, in part, because future rebirths should be considered in imposing punishments.(53)

Regardless of any karmic considerations, Buddhist jurisprudence especially as based on

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50) cont. violence. See, e.g., G. RENONDEAU, HISTOIRE DES MOINES GUERRIERS DU JAPON & PAUL DEMIEVILLE, LE BOUDDHISME ET LA GUERRE (Bibliotheque de L'Institut des Hautes Etudes Chinoises, Volume 11, 1957) [Two essays published together in French]; PAUL WILLIAMS, MAHAYANA BUDDHISM: THE DOCTRINAL FOUNDATIONS 145, 158-9, 161-2, 190 (1989) [hereinafter "WILLIAMS"]; Tessa Bartholomeusz, "In Defense of Dharma: Just War Ideology in Buddhist Sri Lanka." 6 JOURNAL OF BUDDHIST ETHICS 1 (1999). http://jbe.la.psu.edu/6/bartho991.htm.
Furthermore, many Koreans know the story of a Buddhist monk named Grand Master Seosan (1520-1604). In 1592, when he was seventy-three years old, Seosan, also sometimes spelt Sosan, organized an army of monks to defend Korea from a Japanese invasion. GRAND MASTER SOSAN, MIRROR OF ZEN: A KOREAN BUDDHIST CLASSIC 7-9 (Mark Mueller & Won-yoon Sunim, trans., Mujin Sunim, ed., 1995).

51) Likewise, it is first of the Eight Precepts (Atthanga Sila in Pali) for monks in the Theravada tradition. SUCHITRA ONKOM, BUDDHIST CHANTING 6-7 (1993) [in Pali using both the Thai script and Roman alphabet plus translations from the Pali into Thai and English]. See also, HAMMALAWA SADDHATISSA, BUDDHIST ETHICS: THE PATH TO NIRVANA 73-86 (Wisdom Publications 1987) (1970); BHIKKU BODHI, GOING FOR REFUGE: TAKING THE PRECEPTS 48, 57-61 (The Wheel Publication Nos. 282-284, 1981); HEINZ KASIK, BUDDHA UND BUDDHISMUS: GRUNDLAGEN UND EINFLUESSE AUF DAS FRUEHE CHRISTENTUM 27, 30 (no date). [in German].

52) A number of contemporary Buddhist leaders have advocated non-violence and world peace. No doubt the most famous is the current Dalai Lama. He was awarded the Nobel Peace Prize in 1989. TENZIN GYATSO (14th DALAI LAMA). FREEDOM IN EXILE: THE AUTOBIOGRAPHY OF THE DALAI LAMA OF TIBET 263-279 (rev. ed., 1998). A well-known Buddhist laywoman calling for non-violent solutions to political problems is Aung San Suu Kyi of Burma (Myanmar). She is a human rights activist as well as the winner of the 1991 Nobel Peace Prize. AUNG SAN SUU KYI, THE VOICE OF HOPE: CONVERSATIONS WITH ALAN CLEMENTS 110-121 (1997).

53) In Tibet's traditional penal system, a suitable punishment had to take into account the Tibetan Buddhist understanding of karma and rebirth. Hence, a punishment that allowed a criminal defendant to live and thus enabled him or her to practice the dharma was generally favored over a death sentence. REBECCA REDWOOD FRENCH, THE GOLDEN YOKE: THE LEGAL COSMOLOGY OF BUDDHIST TIBET 319 (1995).

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the Vinaya(54) focuses on making the convicted criminal defendant understand the unproductive nature of the wrong committed. It thus generally stresses reforming the individual. Deterrence is secondary. Such a legal philosophy discourages torture let alone capital punishment.(55)

In the case of King Beop, an apparently comprehensive ban on killing was proclaimed. The ban seems to have covered all sentient beings.

The Samguk Yusa describes the ban on killing as follows:

[...] In the winter of [599 C.E., King Beop], promulgated a law prohibiting the taking of life [...] and commanding his people to free falcons and destroy fishing tackle in private homes. [...](56)

The Samguk Yusa also credits King Beop with ordaining thirty new monks and beginning construction on a temple(57) called Wangheung-sa (王興寺) meaning the "Temple of Royal Prosperity." This temple was also known as Mireuk-sa (彌勒寺) meaning the "Temple of Maitreya."(58)

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54) The Vinaya is the so-called monastic code that deals with offenses committed by monks. GUIDE TO THE TIPITAKA: INTRODUCTION TO THE BUDDHIST CANON 1-12 (Myanmar Pitaka Association & Martin Perenchio, eds., White Lotus ed., 1993). The Vinaya is especially important in the Theravada tradition. Today most Theravada Buddhists live in Sri Lanka, Burma, Thailand, Laos, and Cambodia whereas Korean Buddhists typically follow the Mahayana tradition. Of course, there is a lot more to Theravada Buddhist jurisprudence than just the Vinaya. See, e.g., THAI LAW: BUDDHIST LAW, ESSAYS ON THE LEGAL HISTORY OF THAILAND, LAOS AND BURMA (Andrew Huxley, ed., 1996); Sompong Sucharitkul, "Thai Law and Buddhist Law," 46 AM. J. COMP. L. 69 (Supp. 1998).
55) NANDASENDA RATNAPALA, BUDDHIST SOCIOLOGY 133-152 (Bibliotheca Indo-Buddhica Series, No. 117, 1993).

56) HA & MINTZ, supra note 23, at 192. See also, LEE, supra note 23, at 255-256; RI, supra note 23, at 261-262; GIM, supra note 23, at 385, 394.

57) In English language works on Korean Buddhism, religious sites in Korea are usually called simply "temples." But, alternate renderings like "monastery" and "nunnery" would also often be appropriate since Korean Buddhism has a vibrant monastic tradition. In Korea, monks and nuns wear similar robes. Monks as well as nuns are normally expected to follow a vegetarian diet and a celibate lifestyle. Moreover, Korean monks along with as well as nuns can take the Higher Ordination.

58) Maitreya in Sanskrit, or Metteyya in Pali, is the Buddha of the Future. PAUL WILLIAMS, [58) cont.]

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The passage in the Samguk Yusa concludes with a poem in honor of King Beop and his ban on killing sentient beings. The poem runs thus:

Song in Praise of King Beop

He spared the lives of the fowls of the air and the beasts of the land --
His grace reached a thousand hills and streams;
His beneficence rejoiced a thousand pigs and fish;
The four seas were filled with his benevolence;
Sing to the Great King, for he descended to earth from the Buddha Land
In [Tusita](59) above the fragrant spring is in full glory(60)

A slightly shorter description of King Beop's reign is contained in the Samguk Sagi. The shorter account is perhaps not surprising because the Samguk Sagi is written from a more secular perspective. The presumed author was a government scholar rather than a monk.

The mere fact that King Beop's ban on killing is included in an alternative historical source would support the actual occurrence of the royal policy of non-violence. That this older source was apparently composed by someone other than a Buddhist monk lends the account a greater measure of creditability.

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58) cont. MAHAYANA BUDDHISM: THE DOCTRINAL FOUNDATIONS 228-231 (1989) [hereinafter WILLIAMS].
59) This refers to the fourth of the six heavens in the world of desire. It is said to be the home of Maitreya. YOKOI, supra note 39, at 786; INAGAKI & O'NEILL, supra note 39, at 351.
60) HA & MINTZ, supra note 23, at 193.

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V. Some Additional Examples of Abolitionist Buddhist Rulers
At other times and in other places, a number of Buddhist rulers have abolished capital punishment just as King Beop did in Baekje. Of course, not all rulers of officially Buddhist nations have been strict abolitionists. In fact, many were retentionists.(61)

Emperor Ashoka (second century B.C.E.), also often spelt Asoka, contributed greatly to the spread of Buddhism in India and beyond. Asoka's reign fostered a golden age of Buddhism in South Asia.(62)

Ashoka was the grandson of Chandragupta, the founder of the Mauryan Dynasty (second century B.C.E. to seventh century C.E.), which began ruling most of the Indian Subcontinent long before King Beop's time in Baekje.(63) Although there have been academic controversies over various aspects of Ashoka's reign, Ashoka is generally credited with supporting Buddhism and incorporating Buddhist teachings into his royal policies. Among other things, Ashoka seems to have either abolished or else greatly restricted the use of capital punishment as part of his emphasis on non-violence. Also, Ashoka served vegetarian meals at his palace.(64)

Regardless of what Ashoka actually did or did not do during his reign, the image of Asoka as a benign monarch became a sort of archetype for Buddhist kings to follow. The Ashokan model thus influenced later rulers in India and beyond. In particular, Ashoka was known to Ancient Koreans. Indeed, there are even a few references to King Ayuk i.e., Ashoka in the Samguk Yusa.(65)

King Beop's ban on killing might have had an influence in neighboring Japan. In the year 724 CE, Emperor Shomu (r. 724-749) of the Nara Period (715-794) is said to

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61) For instance, a couple of graphic execution scenes are featured in a recent Thai film. SURIYOTHAI (Prommitr Production Co., Ltd., 2001) (Thai with English subtitles). The events portrayed in Suriyothai occurred about five hundred years ago in Ayuthaya.
62) WILLIAMS, supra note 58, at 8-9, 16.

63) There have been a number of studies by Asian as well as Western scholars on Ashoka including Mookerji's classic work. RADHA KUMUND MOOKERJI, ASOKA (3rd. ed. 1962).

64) VINCENT A. SMITH, THE OXFORD HISTORY OF INDIA 124 (Percival Spear ed., 1st Indian Impression, 1974) (3rd ed. 1958).

65) HA & MINTZ, supra note 23, at 202, 205-207, 275, and 430.

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have forbade the use of the death penalty.(66) Regardless of whether Emperor Shomu was aware of King Beop's decree that was promulgated more than a century before his own outlawing of capital punishment, we do know that Emperor Shomu was a major supporter of Buddhism.

However, perhaps the most colorful example of a Buddhist ban on capital punishment came many centuries after King Beop. It is a chapter in the history of the influence of Tibetan Buddhism on the Mongols.

The Tibetan monk Sonam Gyatso (1543-1588) instructed the Mongol king Altan Khan. Among other things, he advised the king that it was better not to throw prisoners of war into the Yellow River for sport and not to sacrifice either captives or animals to the ancestors and war gods as had been done under the then current form of Mongol shamanism. Altan Khan was apparently moved by the teachings. He is credited with bestowing Sonam Gyatso with the title of "Dalai Lama" or "Ocean (of Wisdom) Guru."(67)

To what extent the motives of Emperor Ashoka, King Beop, Emperor Shomu, or Altan Khan were political remains uncertain, but it is not unreasonable to assume that Buddhism meant something to such rulers on a personal level. At least in the case of King Beop, his royal policy went beyond abolishing the death penalty to announcing a ban on killing animals as well as humans. King Beop's stance represented something that was presumably unpopular with certain segments of the population.(68)

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66) Taitestsu Unno, "Personal Rights and Contemporary Buddhism," in HUMAN RIGHTS AND THE WORLD'S RELIGIONS 129-146 (Leroy S. Rouner, ed. 1988).
67) Actually, Sonam Gyatso became known as the third Dalai Lama because he counted his two successors retroactively. Accordingly, the first and second Dalai Lamas were Gendun Drubpa (1391-1474) and Gendun Gyatso (1475-1542). ROBERT A.F. THURMAN, ESSENTIAL TIBETAN BUDDHISM 36 (Castle Books ed., 1997).

68) It has even been suggested that the total ban on killing might resulted in King Beop's downfall. HENTHORN, supra note 25, at 58.

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VI. Conclusion
1. Implications for the Korean Debate on Capital Punishment

The tale of King Beop is a part of Korea's rich cultural heritage. That alone would merit historical study. However, the good king's ban on killing points to an ancient precedent for abolishing capital punishment. This precedent shows that eliminating the death penalty is not merely a recent policy position or even a Western idea.

King Beop's ban on killing is admittedly a precedent in a rather broad sense of the term, but it is nonetheless a precedent that deserves to be considered in the debate surrounding capital punishment in South Korea.

2. Implications for the Asian Values Debate

In recent years, the concepts of human rights and democracy have, to varying degrees, been criticized as being Western inventions and thus somehow unsuitable for Asia -- at least not without considerable modification.(69) In this connection, it is worth

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69) Although there is a growing body of academic literature on Asian values, the essence of the debate is summed up nicely in a pair of articles that appeared in the journal FOREIGN AFFAIRS during 1994: Fareed Zakaria. "Culture Is Destiny: A Conversation with Lee Kuan Yew." FOREIGN AFFAIRS 109 (March/April 1994); Kim Dae Jung. "A Response to Lee Kuan Yew: Is Culture Destiny? The Myth of Asia's Anti-Democratic Values." FOREIGN AFFAIRS 189 (November/December 1994).
Lee was Prime Minister of Singapore from 1959 until 1990. His successive terms in office included the period during which Singapore was a part of Malaysia. After three decades as Prime Minister, Lee stepped down and became a so-called "Senior Minister." Kim wrote his response before he was elected as President of the ROK on 18 December 1997. In other words, both men happened to be in semi-retirement back in 1994.

For a more recent statement of Kim's views, see his Nobel Lecture given in Oslo, Norway on 10 December 2001. Nobel e-Museum, Nobel Peace Prize 2000 (last visited on 15 November 2001). http://www.nobel.se/peace/laureates/2000/dae-jung-lecture.html.

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noting that Asia lacks a regional human rights treaty.(70)

One of the difficulties in this ongoing debate has been the identification of what precisely are "Asian" values in light of the tremendous diversity of cultural norms and religious ideals found in Asia. Admittedly, a major factor in the Asian values debate has been questions regarding the nature of Confucianism.(71)

Certainly, however, most Asians would not formally describe themselves as Confucian. The impact of Confucianism has mostly been in China (including Taiwan), Vietnam, Korea, and, to a lesser degree, in Japan and Overseas Chinese communities in places like Singapore. Elsewhere in Asia, little is known about Confucianism. Yet, even in those societies that have been profoundly influenced by Confucianism, many people, while perhaps acknowledging the legacy of Confucianism, would nevertheless consider themselves to be something else like Buddhist or even Christian.(72)

So, if there really is such a thing as generic Asian values, then one must look beyond just Confucianism to consider other traditions as well. Buddhism has had an impact on many societies across Asia. Indeed, Buddhism has touched a much broader part of Asia than Confucianism. Accordingly, Buddhism should be taken into account by anyone

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70) In Asia, there are merely some non-binding regional declarations related to human rights, but such instruments are inherently weak and, at any rate, the official Asian declarations tend to stress economic development and social stability over civil and political rights. In March 1993, representatives from thirty-four nations from Asia, the Pacific, and the Middle East issued the Bangkok Declaration. Among the very diverse collection of governments represented in Bangkok in 1993 were some regimes with terrible human rights records. Even the DPRK participated. In September of that same year, a smaller group from the Association of Southeast Asian Nations (ASEAN) approved the Kuala Lumpur Declaration on Human Rights. The texts of both the Bangkok Declaration and the Kuala Lumpur Declaration on Human Rights can be found in 1 ASIA-PACIFIC HUMAN RIGHTS DOCUMENTS AND RESOURCES 88-92, 107-111 (Fernand de Varennes, ed., 1998).
For an informative albeit slightly dated survey of the extent of freedom in the various member states of ASEAN, see CLARK D. NEHER & ROSS MARLAY, DEMOCRACY AND DEVELOPMENT IN SOUTHEAST ASIA: THE WINDS OF CHANGE (1995).

71) See, e.g., CONFUCIANISM AND HUMAN RIGHTS (Theodore de Barry & Tu Weiming, eds., 1998); Neil A. Englehart, "Rights and Culture in the Asian Values Argument: The Rise and Fall of Confucian Ethics in Singapore." 22 HUM. RTS. Q. 548 (May 2000).

72) This is certainly true of South Korea today. SHIM JAE-RYONG, KOREAN BUDDHISM: TRADITION AND TRANSFORMATION 257-270 (Korean Studies Series No. 8, 1999).

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attempting to espouse a set of pan-Asian values.

In recent years, some writers have begun to consider the relationship between Buddhism and human rights.(73) Likewise, the protection of human rights is an important theme in the 1991 Constitution of the Tibetan Government in Exile headed by the Fourteenth Dalai Lama.(74)

King Beop's ban on killing can be viewed as an ancient Korean expression of opposition to the death penalty. In addition, it can be seen as being an early statement on the protection of part of what we today would call human rights. Because this precedent was clearly inspired by Buddhism, it is relevant in Korea and beyond.

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73) See, e.g., Kenneth Inada, "A Buddhist Response to the Nature of Human Rights" in, ASIAN PERSPECTIVES ON HUMAN RIGHTS 91 (Claude E. Welch, Jr. & Virginia A. Leary, eds., 1990); P.A. PAYUTTO, BUDDHIST SOLUTIONS FOR THE TWENTY-FIRST CENTURY passim (Bruce Evans, trans. & ed., 1996); Damien Keown, "Are There 'Human Rights' in Buddhism?," 2 JOURNAL OF BUDDHIST ETHICS 1 (1995). http://jbe.la.psu.edu/2/keown2.html.
74) Selected provisions have been reproduced in 2 ASIA-PACIFIC HUMAN RIGHTS DOCUMENTS AND RESOURCES 446-453 (Fernand de Varennes, ed., 2000).