Legal History Review
Online ISSN : 1883-5562
Print ISSN : 0441-2508
ISSN-L : 0441-2508
Volume 1961, Issue 11
Displaying 1-50 of 59 articles from this issue
  • System of Evaluation of their Duties and Promotion of Official Rank
    Tadao Nomura
    1961 Volume 1961 Issue 11 Pages 1-39,I
    Published: March 30, 1961
    Released on J-STAGE: November 16, 2009
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    The promotion of official rank was a matter of great concern to the ancient bureaucrats under the Taiho Codes (701), since all prerogatives, social and economic, were conferred upon the bureacrats according to their official ranks. Therefore, the system of evaluation of their duties, on which the promotion of rank was based, is worth studying.
    There existed four ranks in the evaluation in accordance with the kind and class of official duty or position in the administrative mechanism. The annual standard and method of evaluation were adopted on the assumption of a definite number of days of duty. The consolidated results in the course of a certain period of years in respective classes decided the suitability of official rank and degree of promotion.
    The characteristics are shown as follows:
    1. The method of evaluation of duty, though complicated, has a system based upon consistent principles.
    2. The annual evaluation, consolidated in a certain period of years, is directly linked with promotion.
    3. This method of evaluation of ancient bureaucracy, especially by the aristocracy, which had different standards according to the official rank and position is worth noticing, since it became a factor in producing cliques among the aristocracy.
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  • [in Japanese]
    1961 Volume 1961 Issue 11 Pages 40-77
    Published: March 30, 1961
    Released on J-STAGE: November 16, 2009
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  • Masasuka Ishibe
    1961 Volume 1961 Issue 11 Pages 78-118,I
    Published: March 30, 1961
    Released on J-STAGE: November 16, 2009
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    On the development of the divorce law in Germany Luther and his followers gave a great influence. This essay is written to make clear the structure of their theories and the social, political and theoretical foundations on which they are based.
    Luther criticises the sacramental doctrine of Meadeval Catholicism and comes to the conclusion that of the seven sacraments only three, namely Baptism, Penance and Lord's Supper have been prescribed by God, though Penance might not be called a sacrament. All the other sacraments are denied by him, because they are not founded on the Bible. The sacramental power of the Church has been misused by Popes. And they are mistaken in teaching that a merely external act of the believer can secure the grace of God. Luther lays stress on faith. That is the reason why his religious thought is called a faith-religion in contrast with the sacrament-religion of the Catholic Church.
    According to Luther, marriage is not a sacrament, but a wordly matter. The question of marriage is subject to temporal authorities, and not to the ecclesiastic authority. Consequently he rejects numerous restrictions concerning marriages decreed in the canon law as unbiblical and cruel, and he thinks they have only been introduced by the Popes for financial reasons. Luther charges some of the impediments to marriage in the canon law, namely the impediments of (1) degrees of consanguinity and affinity which have been extended too widely, (2) different religions, (3) crime, (4) marriage with copula carnalis, (5) monastic vows, (6) ordination, (7) publica honestas. In the canonical theory, there is no marriage, where one of these impediments exists. Therefore, on these grounds a husband and a wife often obtain the same result as when they are divorced. The word "divorce" was used in the canon law to mean the declaration of the nullity of marriage. Luther sets a limitation to the grounds for the nullity of marriage.
    Apart from the question of the nullity of marriage we find that the Canonical theory maintains the rule of indissolubility of a valid marriage, only with a simple exception : divorce is granted for the cause of fornication by the court of the Church. But this only divorce known to the Church is a divorce from bed and board which, although it discharges the husband and wife from duty of living together, does not cut marriage ties between them.
    Luther attacks violently this canonical theory of divorce. While the canon law has only the divorce a menso et toro, Luther grants the divorce a vinclo matrimonii. This is one of the most important differences between the divorce theory of Protestantism and that of Catholic ?? sm.
    The grounds for divorce which Luther recognizes are adultery and desertion, and either a husband or a wife is permitted to divorce from the other on one of these grounds. In the society where, under the influence of the Catholic doctrine, the opinion prevails that marriage is conceived as monogamous and permanent, the judicial divorce is of a permissive character. As an exception to the general principle of permanency of marriage, a marital relationship may be dissolved before the death of one of the parties, and to the innocent party the way to the initiation of a new marriage is opened. Divorce is not possible without the express permission by a court or a pastor. Where a cause for divorce exists, the court (consistorium, since the question of marriage comes under the jurisdiction of this office of the temporal ruler) has to confirm that th marriage ties are cut off for the cause of divorce and that the existence of this cause is the fact open to the public and then it has to give a permittimus or torelemus, i. e. a licence to a new marriage to the innocent party. Until the age of Enlightenment, Lutheranism maintains this opinion on the question of the system of divorce procedure.
    Among the divorce theories of Lutheran theologians are two groups ;
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  • Shozo Kanazashi
    1961 Volume 1961 Issue 11 Pages 119-146,III
    Published: March 30, 1961
    Released on J-STAGE: November 16, 2009
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    In the Edo period, clan-governments forbade their residents to remove at will. The residents were obliged to carry a passport with them when they went for work to another feudal domain, or on a peddling tour, or just on a tour, even within their own place. To quit their place of residence without, permission was, therefore, a punishable offence with a penalty of adjudication of disappearance, and consequently lapse of the vested rights. The residents were then forbidden to return to their former place of residence, and having no legitimate passport, they were unable to live straight.
    Since full studies have been made by many scholars on the general subject of the legislation of this period, the purpose here is to consider particular cases of disappearance with respect to the legislation on the basis of the historical materials extant in Hiro, a village in the former Aki feudal domain.
    In the Aki district as well as in others, families, when they had a missing person among themselves, had a duty to search for him for 180 days. In case they were unable to find him out within the given period, they were obliged to request the authorities to give the adjudication of disappearance for the missing person. The authorities, however, did not always grant it upon request, especially in the case of his being a person under age. The purpose of this legislation was the banishment of the depraved out of the village. But, since every village banished the depraved out of it, the bad influence of this measure was necessarily reciprocal : the remarkable increase of robbery cases being one of the examples.
    So far as the once banished depraved repented of their past misdeeds and proved to be law-abiding people, the authorities concernd were lenient in repeoling upon their request the already issued adjudication of disappearance. For the same purpose, the authorities took advantage of every opportunity to proclaim the so-called amnesty. But those who had once been adjudicated to be a missing peason were not easily allowed to return to their home villages until after fifteen to twenty years since they had been so adjudicated.
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  • on the “Minsei-Sikumisho”[_??__??__??__??__??_]by Simpei Eto
    Akira Sugitani
    1961 Volume 1961 Issue 11 Pages 147-162,IV
    Published: March 30, 1961
    Released on J-STAGE: November 16, 2009
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    Every feudal lord all over the country was obliged to conform to directions for the centralzation of powers, such as the return of the land and people to the Emperor, the abolition of clans and the establishment of prefectures. The feudal lord of “Saga-han” [_??__??__??_] issued an order for the administrative reform of the feudal system to Simpei Eto who thereafter was appointed minister of Justice, but was implicated in the revolt of Saga “Saga-no-ran” [_??__??__??__??_]. Simpei Eto made a plan of system “_??__??__??__??__??_” as a new system of centralization of powers. So far, the actual condition of local administration in the eary years of Meiji era was indistinct, but the Minsei-Sikumisho is one of the historical materials that explain the change of local administration.
    The historical records show that an autonomous tendency is a distinctive feature on the days of local administration before the national unity as the period of transition.
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  • Reply to Prof. Tomoo Uchida's Remarks
    Shuzo Shiga
    1961 Volume 1961 Issue 11 Pages 163-174,V
    Published: March 30, 1961
    Released on J-STAGE: November 16, 2009
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    This paper is written as a supplement to my former article " On the New Code of Wei Dynasty in China : Research for the Titles of the Eighteen Chapters" in Kokka Gakkai Zasshi Vol. 69 no. 7, 1955, and should be read together with it.
    The Wei Code is known as the "new code consisting of eighteen chapters" and according to the "Preface (_??__??_)" to the Wei Code cited in the " Treatise on Penal Norms in the History of Chin Dynasty (_??__??__??__??__??_)", thirteen of these eighteen chapters were newly compiled while the other five came down from the predecessor, which was replaced by this code. My fomer article was devoted to the task of identifying the title of each chapter of this code. For I found no suggestion ever made on this subject to be acceptable without reserve.
    In my opinion, the chapter-title "ch'iu lü _??__??_" should be excluded from the present consideration. According to the "Preface" to the Wei Code, ch'iu lü of the Han Code, in the process of the new codification, left out its essential part, namely the provisions concerning detention, examination and adjudgement of criminals (_??__??__??__??__??__??__??__??_). These provisions, however, must have been part and parcel of ch'ih lü (which is literally translated "the chapter on unconvicted prisoners") of the Han Code. Their omission, therefore, means the total abolition of ch'iu lü itself or more accurately the splitting of it into two chapters : hsi-hsün lü and tuan-yü lü. In this approach, I am led to the conclusion that the chapter-titles of the Wei Code must have been the following : hsing-ming _??__??_, tao _??_, chieh-lüeh _??__??_, tsei _??_, cha-wei _??__??_ hui-wang _??__??_, kao-ho _??__??_, pu _??_, hsi-hsün _??__??_, tuan-yü _??__??_, ch'ing-ch'iü _??__??_, tsa _??_, hu _??_, hsing-shan _??__??_, fa-liu _??__??_, ching-shih _??__??_, ch'ang-tsang _??__??_, and mien-tso _??__??_ (The monosyllabic titles represent the chapters which came down from the Han Code and the bisyllabic ones those newly compiled.)
    Reaffirming the above opinion which is given in my former article, I write this paper in reply to the recent remarks from Prof. Tomoo Uchida. The argument between myself and prof. Uchida may be summarized as follows :
    Uchida : -The abolition of ch'iu lü can not be proved because it is not explicitly stated in the documents.
    Shiga : -The abolition of hsing lü _??__??_-its retitling into hsing-shan lü-in the Wei Code has never been doubted, although no explicit statement about it is found in the documents. If we are not allowed to take further steps than following the explicit statements in documents, then the solution of this sort of problem must be given up.
    Uchida : -The expression "_??__??__??__??__??__??__??__??_" in the "Preface" can be interpreted as meaning that one chapter under the title of hsi-hsün-tuan-yü lü was newly compiled, although Shiga says that two chapters named hsi-hsün lü and tuan-yü lü were compiled. No decisive data, however, can be found in any document in favour of either one of the two interpretations.
    Shiga : -Attention should be drawn to a similar expression in T'ang-liu-tien in this connection. In that expression, "_??__??__??__??_" clearly represents two chapters.
    Uchida : -The expression "five chapters coming down from the predecessor (_??__??__??__??_)" can be interpreted as "coming down from the ancient Code of Li-K'uei _??__??_ " instead of from the Han Code. If this inter-pretatoh is correct, the problem should be solved in another way : that is to say, "_??__??__??__??_" be regarded as representing one chapter and ch'iu lü be not excluded.
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  • [in Japanese]
    1961 Volume 1961 Issue 11 Pages 175-200
    Published: March 30, 1961
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    1961 Volume 1961 Issue 11 Pages 201-216
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  • [in Japanese]
    1961 Volume 1961 Issue 11 Pages 217-218
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    1961 Volume 1961 Issue 11 Pages 218-222
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    1961 Volume 1961 Issue 11 Pages 222-224
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    1961 Volume 1961 Issue 11 Pages 224-225
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  • [in Japanese]
    1961 Volume 1961 Issue 11 Pages 225-227
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    1961 Volume 1961 Issue 11 Pages 227-228
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    1961 Volume 1961 Issue 11 Pages 228
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    1961 Volume 1961 Issue 11 Pages 228a-230
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    1961 Volume 1961 Issue 11 Pages 230-231
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    1961 Volume 1961 Issue 11 Pages 231
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    1961 Volume 1961 Issue 11 Pages 232
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    1961 Volume 1961 Issue 11 Pages 232a-233
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    1961 Volume 1961 Issue 11 Pages 233-234
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    1961 Volume 1961 Issue 11 Pages 234-235
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    1961 Volume 1961 Issue 11 Pages 235-236
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    1961 Volume 1961 Issue 11 Pages 236
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    1961 Volume 1961 Issue 11 Pages 236a-237
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    1961 Volume 1961 Issue 11 Pages 237
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    1961 Volume 1961 Issue 11 Pages 238-239
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    1961 Volume 1961 Issue 11 Pages 239-241
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    1961 Volume 1961 Issue 11 Pages 241-242
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    1961 Volume 1961 Issue 11 Pages 242-243
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    1961 Volume 1961 Issue 11 Pages 243-244
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    1961 Volume 1961 Issue 11 Pages 244-245
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    1961 Volume 1961 Issue 11 Pages 245
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    1961 Volume 1961 Issue 11 Pages 245a-249
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    1961 Volume 1961 Issue 11 Pages 249-251
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    1961 Volume 1961 Issue 11 Pages 251-252
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    1961 Volume 1961 Issue 11 Pages 252-253
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    1961 Volume 1961 Issue 11 Pages 253-254
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    1961 Volume 1961 Issue 11 Pages 254-255
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    1961 Volume 1961 Issue 11 Pages 255
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    1961 Volume 1961 Issue 11 Pages 256-257
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    1961 Volume 1961 Issue 11 Pages 257-258
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    1961 Volume 1961 Issue 11 Pages 258
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    1961 Volume 1961 Issue 11 Pages 258a-261
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    1961 Volume 1961 Issue 11 Pages 261-265
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    1961 Volume 1961 Issue 11 Pages 265-266
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    1961 Volume 1961 Issue 11 Pages 266-267
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    1961 Volume 1961 Issue 11 Pages 267-269
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    1961 Volume 1961 Issue 11 Pages 269-270
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    1961 Volume 1961 Issue 11 Pages 270-271
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