Hyperventilating over Chinese Food and North Korea

-- By JosephLu - 27 Feb 2009

Introduction: The Code

The Penal Code of the Democratic People’s Republic of Korea (North Korea) is draconian in its definition of crimes and assignment of corresponding punishments. Compared to many systems of criminal law in the world, the North Korean one violates conventional principles of legality and proportionality. As what seem to be fair and accurate representations of the general character of North Korean criminal law, “grave offenses” of the Penal Code will be briefly described here, and discussion will then move to a more theoretical comprehension of the severity of North Korean criminal law. Particularly, this paper will argue that North Korea’s criminal law system represents the pathology of the DPRK state, but hides the pathology of the North Korean people.

In the case of a grave offense, possible penalties range from life imprisonment in a reform institution to capital punishment. Grave offenses include leaving the DPRK multiples times without proper authorization, meeting with foreigners without proper authorization, and returning to the DPRK with the intention of becoming a Christian missionary.

The nature of the DPRK’s criminal law system

Practical goal

The practical goal of North Korea’s Penal Code is to maintain the state’s tight control of society. To achieve this goal, the Code employs intimidation, particularly through (1) the absence of an effective notice requirement (for example, to apprise citizenry of changes in the Code), and (2) severely disproportional punishments (particularly for misdemeanors). In part, such intimidation serves a possibly secondary objective of high deterrence. High intimidation and deterrence, then, preserve the state’s rigid command of the people’s physical, mental, and moral movements.

Symbolic goal

While the practical goal of the Penal Code is as such, the symbolic goal—and if not a goal, then a byproduct from the creation of intimidation and deterrence—is the Penal Code’s negation of itself. In other words, intimidation and deterrence become so effective that the state no longer needs to extend the enforcement arm of the criminal law system to maintain perfect social order—and that symbolically, criminal law becomes extraneous in North Korean society. Possibly, legally enforceable Penal Code provisions become replaced by a uniform system of social norms that coincide perfectly with the state’s intentions.

This symbolic vision is unsustainable. But the state seems to have yet another goal, that of propagating appearances of the sustainability of this vision. The state wants to make it seem possible to the North Korean people and the rest of the world that, because of the infallible governance by the state and the superior faculties of the people, the endpoint of the Penal Code’s self-negation is near, if not already here. And the state does this by discreetly spiriting away those convicted of crimes to far-off labor facilities and reform institutions (read: prison camps). In essence, these convicts are removed from the people’s visible realm. In effect, the Code still aspires to symbolically negative itself.

Drawing a line between the pathology of the state and the pathology of the people

C. Oliver Robinson offers the possibility that the “criminal law represents civilization’s pathology.” In its generality, this statement, as applied to North Korea, would mischaracterize the relationship between criminal law and society’s pathology. At its assuming altitude, Robinson’s statement would miss the particular texture that the pathology of the state and the pathology of the people must be discussed separately in order to comprehend North Korean society in a meaningful way.

The DPRK’s criminal law system reveals the pathology of the state

Pathology can be defined as the “scientific study of the nature of disease and its causes, processes, development, and consequences.” A community’s pathology, then, is the people’s collective definition of normal, deviations from this standard, and how the community negotiates these deviations. More generally, and perhaps more usefully, a community’s pathology is how the community defines itself and how this definition evolves over time.

While the Penal Code may accurately represent the pathology of the community that comprises the state, the Code conceals the pathology of the community subject to the state’s control. The state’s fetish for high intimidation and deterrence to perpetuate an almost irrational regime of absolute control reflects an (impossible) ideal of political perfection that has been conflated with the standard of normality. Deviations from this standard, then, are savagely condemned to incentivize the subject-people’s own fetishization of the state’s artificially constructed “value” of normality. The way that the state negotiates deviations, then, can be comprehended primarily not as the pathology of things that are wrong with society in general, but as things that are wrong with the state, particularly its intense fear of dissent. The state’s insistence on high intimidation and deterrence, then, is a reaction to an acutely self-conscious insecurity that defines the state’s personality.

The DPRK’s criminal law system conceals the pathology of the subject-people

This regime of easy convictability, on the other hand, conceals the people’s pathology because high intimidation and deterrence serve to suppress and conceal those indexes that show a community’s pathology. Precisely as the state desires, no one does anything “wrong” because everyone is too afraid. And if someone does, she is disappeared. These deviances that would reveal things that are wrong with the people are invisible, and any private, non-legally enforceable deviances that would represent the people’s pathology are not expressed so that they may contribute meaningfully to the conversation about criminal law and pathology. If any pathology can be articulated, it would be defined by the people’s patriotic love for the state—which most likely is not the people’s true personality. The Code’s model of high intimidation and deterrence intimidates and deters so well that it drives into the invisible realm those features of the subject-people that might represent their true pathology, their collective personality.

Conclusion: Keeping up and more

Maybe the people’s pathology, though unrepresentable by a regime after all created by the state for its own purposes, nonetheless exerts a private and powerful force that might one day do more than “keep up” with the state’s idealized personality.

• I think Robinson is irrelevant here. The disagreement over whether the criminal law is the pathology of the civilization feels contrived, even though it may well have served as a perfectly useful jumping-off point for the voyage you actually took, it's no longer germane to the communication with your reader.

• The North Korean government may be achieving all the aims you specify, or it may only be achieving the aim of communicating externally the impression that it has done so. Hyper-draconian legal systems come into existence in extremely disturbed social environments, including war zones, and are sometimes prolonged in a centralized fashion. But the cost of intensive enforcement is high, and the usual result is to drift towards activity that gives the impression of completeness without incurring the cost of actual omnipresence. The 21st century's technologies of surveillance may shift that curve frighteningly in the supposedly "free" societies.

• But for the moment, we can't be sure what is actually happening in North Korea, so we can only speculate about how the system works in detail. So far as the pathologies of the people are concerned, most will be the sorrowful consequences of material deprivation. Everything else, except the possession of nuclear weapons, is almost certainly subsidiary.