A study concerning the formation of “judiciary” (Shiho) at the beginning of the Meiji era
Shinpei ETO's plans of Shihodai and various elements for discussion that are seen its foundation
2010 Volume 59 Pages 81-112,en8
Details
2010 Volume 59 Pages 81-112,en8
When the process of the establishment of the Department of Justice (Shihosho) in July, 1871 was researched, the previous work chiefly paid attention only to Shinpei ETO's institutional reform plan. This research sporadically studied ETO's plan of “judiciary” paying attention to each element, and it analyzed in the context of the governmental process.
However, in the current study, I try to evaluate ETO's plan from the following viewpoints. That is, how could what is called “judiciary” (Shiho) which did not exist in that time before based on a clear plan and the system be understood? For this, I examined the process of the development of ETO's plan until the establishment of the Department of Justice in time series. In addition, I studied the texts that relates the plan, and studied information on the laws and the system that form the background of the plan.
Liberally interpreted, there were three stages when “judiciary” was assumed to be a problem when seeing ETO's plan from such a viewpoint.
During the first stage, the idea of “judiciary” is analyzed as one part of “the three powers of government”. In he second stage, Shihodai and courts are built in as an organization corresponding to the idea of “judiciary”, at the same time, the installation of a lower courts is planned to local various authorities. And in the third stage, based on the former stages, it is finally settled to a form near the framework of the present “Gyobusho”. When the above-mentioned plans were carried out, we can recognize that reference has been made to texts on Dutch law in which one can detect more concretely the contents of the three powers of government, includingthe “Shiho no ken” the existed in the government system. Furthermore, there was a background in which knowledge of a present government organization that originated in the Ritsuryo-Daijokan system.
Thus, the plans and concepts of “judiciary” at that time had a heavily layered knowledge structure. It is formed based on understanding of an existing organization, and formed while referring to various texts.
