Legal History Review
Online ISSN : 1883-5562
Print ISSN : 0441-2508
ISSN-L : 0441-2508
Volume 1951 , Issue 1
Showing 1-34 articles out of 34 articles from the selected issue
  • Kaoru Nakada
    1951 Volume 1951 Issue 1 Pages 1-44,en1
    Published: July 30, 1952
    Released: November 16, 2009
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    This is a treatise describing the development of legal concepts in Japan. It is divided into ten sections, each of which is independent. But if they are read through, Dr. Nakada's view on the development of legal concepts in Japan becomes clear.
    Up till the medieval times, adjudications of the law court had legal force and were contrasted with the enacted law. Popular customs were also a kind of norm other than the positive law till the middle of the medieval times. In the latter half of the medieval times, the customary law was called Minkan-no-Taiho (popular great law) contrasted with Tenka-no-Taiho (public great law). But in the Tokugawa Shogunate era, these three forms of law were unified into the single concept of "Taiho".
    What has been stated above is the conclusion reached by Dr. Nakada in this description of history of development of the legal concepts in Japan (Cf. the ninth section). In other sections, however, Dr. Nakada gives his suggestions on various problems of legal history.
    In the third section, Dr. Nakada discusses the development of the system of. penal ( _??_) and non-penal (ling _??_) laws in China. In the Ch'un-ch'iu era, hsing-shu _??__??_ (document of penalty) was the criminal law that defined the grave crimes and provided penalties for them, while chiao-ling-chih-shu _??__??__??__??_ (document of discipline) was the supplementary laws which were enacted whenever necessity arose, Dr. Nakada explains. He advances to say that the former was codified into and the latter into ling in the Han era. But ling was still supplementary to . Dr. Nakada further explains that ling was separated from in the Chin era acquiring an independent position and that it became the non-penal code.
    The fourth section says that Imanogyoji (_??__??__??_) and Rei (_??_) of the ritsu-ryo period were the laws enforced by the government agencies in conformity with Horei (_??__??_).
    The first section advises those who want to study the old Japanese law in connection with politics not to forget that the principle of Tokuji(_??__??_) (moral influence of the ruler) was not the essence of the dictatorship in the ancient Japan but only one attribute of it. Dr. Nakada says also in the seventh section that the Chinese law and the Japanese law were not examples of government through moral influence, though some believe so.
    The seventh and the tenth sections say the lack of clear consciousness of right in the old Japanese law does not indicate that the people willingly subjected themselves to the moral influence of the ruler but that the law was imposed on the people by the ruler in their own interests. Dr. Nakada points out that the law was not created by the people themselves. (Ryosuke Ishii)
    A Sumerian Record of Criminal Procedure
    Keikichi Harada
    The New York Times in its March 12 issue in 1950 reported on the archaeological finds obtained in the excavation at Ras Shamra in Syria. The Manchester Guardian in the March 4 issue of 1950 gave some account on one of the clay tablets excavated at Nippur of Sumer. Late Professor Keikichi Harada makes a brief comment on these two newspaper reports. He surmises that the clay tablet is the same one as what is usually called " di-til-la" (finished procedure). This is the last manuscript written by Professor Harada, who passed away on September 1, 1950. The professor intimated his intention to make the manuscript public several days before his death.
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  • Keikichi Harada
    1951 Volume 1951 Issue 1 Pages 45-46,en2
    Published: July 30, 1952
    Released: November 16, 2009
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    The New York Times in its March 12 issue in 1950 reported on the archaeological finds obtained in the excavation at Ras Shamra in Syria. The Manchester Guardian in the March 4 issue of 1950 gave some account on one of the clay tablets excavated at Nippur of Sumer. Late Professor Keikichi Harada makes a brief comment on these two newspaper reports. He surmises that the clay tablet is the same one as what is usually called " di-til-la" (finished procedure). This is the last manuscript written by Professor Harada, who passed away on September 1, 1950. The professor intimated his intention to make the manuscript public several days before his death.
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  • Noboru Niida
    1951 Volume 1951 Issue 1 Pages 47-95,en2
    Published: July 30, 1952
    Released: November 16, 2009
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    The monograph describes the history of sales contract in China from about the second century B. C. up till the recent years. References were made to the old bills of sale discovered by Stein, Pelliot and Hedin at Tung-huang and Chü-yen, as well as to the latest data accumulated by Japnese scholars through an on-the-spot investigation of the Chinese legal practices.
    Until the later days of the Ch'ing dynasty, movable properties were sold against cash payment and.plots of land were transacted in contract re and it.was only in the, modern times that the contract consensu came into practice.
    The monogrph also describes how the contracts became effective and how the transaction was conducted. The explanation on the sales of real estate, slaves and cattles are separated from that on the sales of ordinary movable properties, because in the former case compliance with certain formulae was legally required and in the latter case not.
    Earnest money was deposited for the purpose of securing fulfilment of the obligation but later it enabled one of the parties concerned to cancel the sales contract, though of course the earnest money was seized by the other party in that case.
    The Chinese word "Chüeh-mai _??__??_" (sale) gives the impression as if no condition was attached to sales contracts. But sometimes the deeds of "Chüeh-mai " contained the clause for redemption. And it was a common practice for the seller'to ask the buyer to pay additional money after the full payment was made. This fact indicates that legal relation between the 'buyer and the seller was not established once and, for all but that it was unstable and unsettled. Sales with a clause for redemption were not distinguished from the pledge contract. It was only in the modern times that the difference between a pledge contract and sales with a clause for redemption was brought to clear consciousness.
    Various kinds of compensation were promised by the parties of a sales contract in clauses attached to the bill of sales. The compensation was intended for such cases as one of the parties failed to fulfill his obligation or the property sold belonged to the third party. The wording of these clauses became more and more complicated as the history proceeds. This development is connected with the fact that the Chinese people could not rely on the power of the Government to safeguard their right. Much light will be cast on the custom of lao-ch'i _??__??_ (title-deeds) and of requiring a witness or witnesses in concluding a sales contract, if they are viewed from this angle.
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  • Shizuo Sokabe
    1951 Volume 1951 Issue 1 Pages 96-119,en4
    Published: July 30, 1952
    Released: February 05, 2010
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    In the Ritsuryo period when codes of laws named Ritsu and Ryo were in force, there were three kinds of servitude at the central Government of Japan. They were called Jicho, Uneme and Mecho. The people were obligated to work in the employ of the Central Government agencies. Jicho, Uneme and Mecho were mentioned already in the historical records of the time of Emperor Nintoku and Emperor Yuryaku (313-479 A. D.). In China, it was the time of East Chin and Sung (one of the southern dynasties). Namely, the reigns of these Emperors preceded the T'ang dynsty of China by 160 to 200 years. Some servitudes similar to Jicho, Uneme and Mecho are described in Chou-li _??__??_ and the same servitudes existed also under the reign of Ch'in _??_ Han _??_ and other dynasties before T'ang. Therefore, it is concluded that Japan learned from China the form of servitudes described above before the reception of the T'ang culture.
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  • Ryosuke Ishii
    1951 Volume 1951 Issue 1 Pages 120-148,en4
    Published: July 30, 1952
    Released: November 16, 2009
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    This is an attempt to clarify the legal meaning of Togoku _??__??_ and Saigoku _??__??_. Only the meaning of the two names as used before the middle of the 10th century is considered.
    Togoku is a geographical name, for which the word "Azuma" was used in old Japanese. But it is my opinion that the word also denoted the indepent state which existed in rivalry with the dynasty in Yamato in the third centry A. D. at the latest, and that this state was mentioned as Kuna-no-kuni _??__??__??_ in the book of Gishi (Wei-chih _??__??_) which, I believe, corresponds to Kenu-no-kuni in the old Japanese records. The political significance of the Taika Reformation lies also in that the dynasty in Yamato amalgamated Kenu-no-kuni.
    The word Saigoku was not used before the sixth century A. D.. But there is no doubt as to the fact that northern Kyushu assumed an important position politically. The book of Kanjo (Han-shu _??__??_) records that there were more than 100 small states in the first century B. C.. But already before the year 57 A. D., a country called Na-no-kuni _??__??_ must have conquered all of them, according to Gokanjo (Hou-han-shu _??__??__??_).The same book says, I think, that Ito-no-kuni _??__??__??_ took the place of Na-no-kuni before 107 A. D.. The area ruled by Ito-no-kuni culturally belonged to the zone commonly called the bronze-sword bronze-halberd zone. There was another cultural zone centering around Yamato. The latter is called the bronze-taku zone. A trend of unification of the two zones arose in the latter half of the second century A. D. The two cultural zones were actually united by Queen Himiko _??__??__??_ of Yamatai-no-kuni _??__??__??__??_. This is believed to be the foundation of Japan as a state.
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  • Kenji Maki
    1951 Volume 1951 Issue 1 Pages 149-182,5
    Published: July 30, 1952
    Released: November 16, 2009
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    Europeans who came to Japan during the 300 years that elapsed between the beginning of Xavier's missionary work ánd the Restoration have failed to understand the organisation and character of Japanese feudalism in spite of their stay among the society filled up with feudalistic air. That was 0 because the Jesuits who could freely move about in the interior of Japan and had the advantage of studying the Japanese life were not much interested in secular matters and the Dutchmen who were eager to know in detail the conditions of Japan for the convenience of trade were prevented from getting the necessary information by the strict policy of Tokugawa rulers.
    The Japanese country was during the sixteenth century divided into domains' of feudal lords. Christian missionaries were under the impression that the lords with whom they came in contact were the Kings of their lands and the vassals under the kings were feudal aristocrats. The merchants they thought were of higher grade than the farmers. Valignano who was in Japan at the time of the famous resurvey of land by the order of Hideyoshi Toyotomi wrote in his "History of Japanese Christianity" about the nature of fiefs of Daimyo and the revenue therefrom. This is minutely described and contains a few informations not handed dawn to us from other sources ; but his understanding that the owner of the land was the Emperor and not the farmer was not correct.
    Under the Tokugawa the centralisation was firmly established and the lords submitted to this strong power. Caron classified Daimyo under Tokugawa regime according to the amount of income from their fiefs into the five ranks of European feudal lords ; but this distinction did not exist in feudalism of our country.
    That Kaempfer, the author of the famous "History of Japan, " judged Shogun as the Emperor was under the political circumstances at the time quite natural and unblamable, and that he esteemed Tsunayoshi Tokugawa as the sovereign having supreme power based on absolutism (just like Louis XIV of France) is also a possible mistake. However, his statements about ownership and cultivation of land of, Japanese farmers are to the point. A few lines in Marx's "Capital" regarding feudalistic land ownership of Japan which is valued by some as a signpost in comparative study of Japanese and European feudalism in present day Japan is probably based on this Kaempfer's statement. Siebold, who was the first to use the term Feudalism in writing Japanese history, considered that of Japan as originated by Jimmu Tenno and that the institution of sixty six provinces under the Mikado were essentially feudalistic. The complicated course of transition from the bureaucracy under Mikado to the feudal system under Shogun was not understood by the Europeans till after the Restoration.
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  • Hideo Otake
    1951 Volume 1951 Issue 1 Pages 183-212,en6
    Published: July 30, 1952
    Released: November 16, 2009
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    The civil affairs procedure in the Yedo Period, as contrasted with the modern civil procedure, shows a unique. character in that the judicial authorities tried to settle whatever disputes possible through "Naisai" or conciliation between the parties concerned.
    This characteristic was especially conspicuous in the procedure for settlement of water-right disputes. In every stage of. the proceeding, recommendations for conciliation were made as a necessary part of that stage of the proceeding. These frequent recommendations for conciliation derived from tha principle of settling as many disputes as possible through "Naisai." This frequent insertion of recommendations for conciliation distinguishes the legal procedure of the Yedo Period from that of the modern times, though the "Naisai " resembles the procedure of compromise, mediation and arbitration in the modern legal system. As a matter of course, "Naisai" obtains equal legal effect with a sentence given by a law court if the Naisai is made as a part of a legal procedure.
    Preference of the " Naisai " principle in the water-right procedures is accounted for by the fact that the judges hesitated to give a sentence of a decisive nature on a case in which any change of landscape and the course of water-flow may greatly change the situation. Avoiding to give a rigid sentence and acting as a benevolent giver of an equitable solution, the judges tried to safeguard the prestige of the judicial authority. Settlement through Naisai, however, sometimes resulted in injustice, as the settlement was liable to be influenced by power politics.
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 213-218
    Published: July 30, 1952
    Released: November 16, 2009
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  • Masao Mitobe
    1951 Volume 1951 Issue 1 Pages 219-228,7
    Published: July 30, 1952
    Released: November 16, 2009
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    Mr. Shinichi Sato published his new opinion (in 1946) that they should recognize the executive power of the Kanzakura Shogunate in the eastern part of Japan with the date of the publication of the edict on the 14th of October in the year of 1183.
    There are some who approve his opinion. However, Dr. Ishii attacked him because he interpreted the edict from a different standpoint-too far from real facts, so he could not agree with Mr. Sato. The writer having studied and investigated the real condition of Japan at the time of the proclamation of the edict and its influence over the people, he has come to the conclusion that Mr. Sato's opinion is not right from his historical standpoint. Dr. Ishii is most proper to say that the official formation of the Kamakura Shogunate is in the year of 1185 when Yoritomo Minamoto was given the appointing power of Shugo and Jito by the Court.
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  • Hideo Hamaguchi
    1951 Volume 1951 Issue 1 Pages 229-261,en8
    Published: July 30, 1952
    Released: November 16, 2009
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    Nenki-uri _??__??__??_ was a common legal practice in Japan both in the medieval and the modern times. In the medieval age, Nenki-uri meant sales of a certain property or properties for a limited period of time. But in the modern times (roughly 16-19 century), the word came to be used to denote pledge or Honzeni-gaeshi _??__??__??_ (conditional sale for redemption), according to the theory now commonly accepted. But all of the Nenki-uri practices and similar customs were not pledge or conditional sale for redemption.
    In Akabadani of the Okukumano district, there was a legal practice called "Nempu-uri _??__??__??_."It was a kind of sales of woodland. The property right was transferred for a limited period of time called "Nempu";, which was usually about 60 years or the time required for a young tree to grow up. After the term expires, the woodland was automatically returned to the former owner (konushi _??__??_). The practice of Nempu-uri cannot be interpreted as lease of land, pledge, conditional sale for redemption or Uwatsuchiuri _??__??__??_ which derived from the concept of divided domain. Nempu-uri should be literally interpreted as sales of land for a limited period of time. It was a kind of Nenki-uri in the original or the medieval sense of the word.
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 262-264
    Published: July 30, 1952
    Released: November 16, 2009
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 265-267
    Published: July 30, 1952
    Released: November 16, 2009
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 267-270
    Published: July 30, 1952
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 270-273
    Published: July 30, 1952
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 273-276
    Published: July 30, 1952
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 276-280
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 280-282
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 283a
    Published: July 30, 1952
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 283
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 284a-285
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 284
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 285-286
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 286-287
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 287
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 287a-288
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 288
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 288a
    Published: July 30, 1952
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 289
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 289a-290
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 290-291
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 291a-292
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  • 1951 Volume 1951 Issue 1 Pages 291
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 292-293
    Published: July 30, 1952
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  • [in Japanese]
    1951 Volume 1951 Issue 1 Pages 293-295
    Published: July 30, 1952
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