A reexamination of the legal dictum “No criminal investigation without litigation”

Abstract

The present article is an attempt to reconsider the meaning of the so-called “legal dictum” said to be unique to Japanese medi-eval society, gokuzen no shinin, uttae nakuba, kendan nashi 獄前死人、無_レ訴者、無_二検断_一(Even for a corpse found at the doorstep of the authorities, a criminal investigation will not be conducted without filing for litigation), and to systematically interpret that dictum within the context of medieval Japanese law enforcement procedures(kendan 検断).
Up to the present, this “dictum” has been understood as a characteristic feature indicative of the inquisitorial/adversarial character of medieval criminal investigation procedures, and in a broader sense exemplifying the concept of self-help law(Selbsthilfe recht)deeply embedded in that society as a whole. In this view, the phrase無_二検断_一has also been interpreted as “criminal investigation will not be proceeded”.
In contrast to such a view, there are many concrete examples of criminal investigations being conducted without a lawsuit being filed, necessitating litigation claiming such acts to be un-warranted and actual prohibitions to that effect issued by such authorities as the Kamakura Bakufu and Imperial Court.
The purpose of the present article is to systematically understand the conventional interpretation of the words as a “legal dictum” in light of examples of cases clearly contradicting it and the need for both judicial and statutory efforts to be made in order to enforce it.
The author begins with a review of the research to date regarding the dictum, in order to affirm the formation of the conventional interpretation and its problem points, concluding that a contradiction exists between how the scholarly opinion developed and the way in which criminal investigation procedures were supposed to be conducted in medieval times,suggesting the existence of problems among historians in the interpretation of the existing sources.
Next, the author attempts to confirm how criminal investigations were actually conducted “on the ground” in medieval times by reexamining the available historiography pertaining to the relationship between litigation and criminal investigation. To begin with, in medieval times criminal investigations were conducted by various political forces according to their particular rights and privileges. In contrast, from the mid-Kamakura Period on, efforts were made to limit criminal procedures to litigation cases. These efforts were made by such forces as the Bakufu and estate(shoen 荘園)proprietors as humanitarian legislation to regulate the police authorities on the regional level. Meanwhile, in response to the rise of leagues on the local level organized in opposition to central shoen proprietors, the Bakufu, in particular, instituted formal modes and procedures in the hope of legitimizing the “criminal investigation without litigation”.
Finally, the author attempts to confirm the circumstances surrounding legal disputes actually citing the “no criminal investigation without litigation” dictum, aiming to clarify its actual intention and meaning. The wording originated from a lawsuit in the 2nd year of the Shitoku 至徳 Era(1385)regarding the business managership(shugyo-shiki 執行職)of Toji temple 東寺 in Kyoto. The dispute involved a murder case, in which the results of a criminal investigation clearly implicating the perpetrator were refuted with the statement, “Even for a corpse found…without filing for litigation”. Therefore, the meaning of the dictum is clearly a denunciation of the practice of conducting criminal investigations without filing for litigation in response to the medieval conditions of many different political forces conducting their own criminal investigations, giving rise to cases of both brutality and impropriety.