“Taking laughter seriously”: the politics of memory in regulating jokes on Korea’s colonial/dictatorial past

With increasing controversy over vicious jokes on traumatic events in contemporary Korean history, it appears that the main interest of human rights in Korea is currently shifting from “freedom of expression” to “the right to ask not to express.” As voices asserting the need for regulatory intervention have become prominent, bills for punishing the denial and distortion of history were proposed, including one on punishing the deniers of dictatorial past in 2013 and two on punishing the distortion of colonial past in 2014. This paper traces the legal discourse surrounding the issuance and review of these three bills. I will begin by analyzing how the main features of the bills collide with fundamental principles within criminal law, and how this collision reflects legislative orientation towards protecting social memories under the umbrella of soziale Rechtsgüter. After illuminating the ways in which juridification—based on the normative strategy of repetitively referring to the case of Holocaust deniers in Europe—operates as a regulatory norm within society regardless of the legal status of a particular proposal, I will examine how such “remembrance through regulation” may (mis)operate, resulting in what Gunther Teubner had termed “regulatory trilemma” in East Asian public sphere.