Legal History Review
Online ISSN : 1883-5562
Print ISSN : 0441-2508
ISSN-L : 0441-2508
Volume 1981 , Issue 31
Showing 1-50 articles out of 62 articles from the selected issue
  • Ryosuke Ishii
    1981 Volume 1981 Issue 31 Pages 1-34,en3
    Published: March 30, 1982
    Released: November 16, 2009
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    In Japan of the Archaic Period (i.e., before 603 A. D.), there were, under the Emperor, local uji-no-kamis (patriarchal chieftains of uji clans) who ruled their clan members on the basis of noris (what were declared by an uji-no-kami, through divine inspiration, of the will of the ancestral deities protecting the clan). This form of government by an uji-no-kami of his (or her) uji clan was called shiru (lit. knowing, i. e., of the divine will), and had the nature of religious rule, powerful and strong. Now, the Emperor subdued (held together) those chieftains. The Japanese word subu originally meant "to hold gems together by passing a string through holes in them), but the word was applied to the idea of the Emperor controlling the chieftains (fig. gems). This control of the Emperor's, however, did not include levying of regular tax on the property of the chieftains. Then, the successive Emperors endeavoured to enhance the control by having Amaterasu-omikami, the titulary ancestral god of the imperial clan, revered as the titulary god of all the uji clans, as the successful result of which, towards the end of the fourth century, there appeared a great Emperor, called Nintoku, the majesty of whose imperial throne can be surmised from his huge mausoleum, actually the largest burial mound in the world. This divine authority of the Emperor over all the ujis and their chieftains, which had thus developed and reached its highest here, had to decline gradually thenceforward, and there came the influence of the very secular and unreligious Confucianism imported from China after this period, too. However, during the Archaic Period, the Emperors still, by means of his divine authority and religious power, were successful in holding together the chieftains of the uji clans.I should prefer to call such a nation us a shizoku-togo-kokka (a state of uji clans held together), where law and religious authority were yet not distinct spheres. A great characteristic of the government throughout this period was that Japanese Emperors did not personally run the government, which tradition, I believe, has reached the present time. Howbeit, the Reform which took place in 645 A. D. (The Taika Reform) gave rise to another form of state, a toitsu-kokka (a unified state) which the Emperor, after confiscating all the lands and people that had been locally held and ruled by uji chieftains, and standing above and utilizing a newly created office of daijokan (central government office), directly and personally governed the whole land and people of Japan. This form of government was carried out by means of the ritzu (penal) and ryo (administrative) codes which were imported from China. Law and religious authority became distinct spheres and the Emperor remained in actual and secular control of the government. The Nara era was the peak period. But then, at the beginning of the next era, the Heian era, though the principle of direct imperial rule itself was maintained, management by the Emperor's closest advisors (sokkinshas) emerged in practise, (Here ends the Ancient Period.)
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  • Sadao ITO
    1981 Volume 1981 Issue 31 Pages 35-60,en7
    Published: March 30, 1982
    Released: November 16, 2009
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    In this paper the author discusses two problems of Athenian phratries - first, when people entered phratries, and secondly, whether women could also be enrolled.
    Two opposing views are expressed by scholars as to the first problem. Some regard the childhood as the time to enter phratries, but others maintain that youth became phrateres when they attained to the puberty, that is, sixteen years of age. The author appreciates the description of Pollux (VIII 107) that phrateres used to sacrifice the kureion for boys attaining to the puberty, and supports the second view. His arguments are as follows. (1) Though the name of kureion cannot be found in Attic orations, this ceremony is often referred to in the inscription of Dekeleieis (IG II<SUP>2</SUP> 1237) and the descriptions of other lexicographers (Hesychius s. v. κουρεωτις ; Suda s. v. κουρεωτης). (2) According to the descriptions of Hesychius and Suda, boys had their hair cut at the kureion. This custom suggests that the kureion was a kind of initiation celebrated for young men. (3) The kureion in the above-mentioned inscription appears to be the main sacrifice and directly linked to the enrolment, while the meion, another sacrifice that is found in the inscription, is probably a preliminary one, celebrated at the first Apaturia after the birth. The kureion must have been celebrated at the puberty. (4) Some descriptions in Attic orations, for example, Andoc. I 124-126, represent the meion.
    As regards the second problem, the author thinks that women could not enter phratries. He does not put trust in the description of Pollux (loc. cit.) that phrateres sacrificed the gamelia for girls attaining to the puberty. (1) In Attic orations gamelia implies the banquet which a bridegroom served to some members of his phratry for the introduction of his bride. (2) The description of Isaeus III (73, 75-76, 79), which suggests just the introduction of a daughter to phrateres, does not represent the enrolment of girls.
    (3) Euxitheos, the speaker of Demosth. LVII, maintains his citizenship partly by the witnesses of the members of the phratry, which his mother's relatives belonged to (ibid. 40, 69), partly by the witnesses of the members of his father's phratry (ibid. 67). The relationship between women and phratries apparently was indirect. The author's conclusion is that girls were not enrolled, though introduced to phrateres at the first Apaturia after their birth.
    The enrolment of phratries seems to be the preliminaries of the civic registration at demes, because of two facts that women are excluded from both kinds of groups, and that phratries enrolled boys just before the civic registration at the age of eighteen. It is also obvious that the Athenian state was much concerned with the enrolment of phratries, because a law regulated the qualification for the entry (Isae.VII 16). Indeed the entry in a phratry was regarded as the acquisition of citizenship (Demosth.XXXIX 31, 34). Therefore the author suspects that ineligible people became Athenian citizens through the illegal entry in phratries. In Attic orations he finds some evidences of such an illegality (Isae. VI 18-24;, Isae. XII 2; Demosth. LIX 13, 38, 118). By the middle of the fourth century B.C. Athenian phratries had ceased to function well enough as a kind of basic groups of the Athenian state. This fact suggests that the Athenian society was gradually undergoing a transformation after the Peloponnesian War.
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  • Kodo SAKURAI
    1981 Volume 1981 Issue 31 Pages 61-104,en9
    Published: March 30, 1982
    Released: November 16, 2009
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    Contents
    I. Methodology: a legal and topographical study
    II. A basic recognition: the existence of a large number of the small states in the pre-historic ages of Japan
    III. Common rules of government and forms of the territorial constitution in all states of Holy Mount. peoples as in one world of common culture and international understanding
    1. States of Holy Mountain peoples
    2. Tribes and their states- The names of numerous tribes
    3. Their common sphere of international cultures and the dominant tribes in states
    4. Holy Mountains and Islands- Principles of states, especialy, the worship of Holy Mountains in all tribes- States found on the ground of Holy Mountain and "Shima: the domain"- The original theory of their territorial conformation
    IV. The State of "Sufo" (_??__??__??__??_) : The actual conditions in Sufo of the rights of territorial possession and the distribution of many of small states in the area.
    1. Forms and systems of indicationing for the territorial possession in the whole "State of Sufo" as one State
    2. Small tribal states in the State of Sufo with their indication of rights of domains
    -Provinces of Kumage (_??__??_) and Kuka (_??__??_) : six states, each blessed of Holy Mountains and Islands
    -Province of Ohshima (_??__??_) : one small state of Holy Mount. and Isl.
    -Provinces of Tuno (_??__??_), Saba (_??__??_) and Yoshiki (_??__??_) : eight States of Holy Mount. and Isl.
    3. Construction of the Union of Holy Mount. States, and the central authority of their Union's organization
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  • Shunichiro KOYANAGI
    1981 Volume 1981 Issue 31 Pages 105-135,en10
    Published: March 30, 1982
    Released: November 16, 2009
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    The Japanese Old Civil Code compiled mainly by the French legal advisor G. E. Boissonade, and published in 1890, was to take effect in 1893, but the "Postponement Campaign" against the Code arose in the meantime. Consequently the Diet decided to postpone the enforcement of the Code and a new Civil Code drafted by the Japanese jurists went into operation in 1898, which is still effective except for the law of domestic relations and succession.
    HOZUMI Nobushige (1855-1926) was one of the leading champions of the postponement party and became de facto chairman of the three draftsmen of the new Code later on. In this paper the author intends to clarify the contents of his criticism of the Old Civil Code and to criticize the prevailing view which regards the legal theory of Hozumi as westernized and progressive, introducing his lecture "Principles of Civil Law" delivered at the Law School of the Imperial University from 1890 to 1893.
    The main points of his lecture are as follows.
    1. The arrangements of the Old Code is based on the French Civil Code with a few adjustsments. Hozumi, however, considered the German style (Pandekten System) technically better and suitable to the Japanese conventional succession system, unlike the French Roman style (Institution System).
    2. He approves the Family System provided in the Old Civil Code for the most part. For, it pays much cosideration to the Japanese customs, although its original draft was progressive under the influence of Boissonade.
    3. It is claimed that the property provision of the Old Code is, like the French Civil Code, lacking the concept of the totality (Totalität) of the property right which the German Code emphasized. Furthermore, according to his judgement, the Old Code makes the restriction of the property impossible by adopting the Natural Law Theory.
    4. While Boissonade plans to protect the leaseholders in the Old Code, Hozumi states that it is against the customs and will destroy the ethical characters of the Japanese lease relationship.
    As has been noted before, the influence of the German Law is evident in Hozumi's criticism of the Old Civil Code, yet, the author advocates that Hozumi pays much consideration to the Japanese customs and conventions, in this sense, he shares much sentiment with the other members of the postponement party.
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  • Yukikazu BANDO
    1981 Volume 1981 Issue 31 Pages 137-168,en11
    Published: March 30, 1982
    Released: November 16, 2009
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    The "Sovereignty of Parliament" generally means first that Parliament may do anything it wishes, and secondly that there is no person or body in the United Kingdom with power to set its acts aside, namely that no Act of Parliament could be declared to be invalid by courts of law. This doctrine was systematized by A. V. Dicey in the late nineteenth century, and has been upheld by orthodox English lawyers. But, on the other hand, some new attempts have been made to question the doctrine. According to them, if Parliament were truly sovereign, it would necessarily be above the law, which would contradict Dicey's own theory on the rule of law. The question which has not been settled is the relation between Acts of Parliament and the common law.
    Sir Ivor Jennings insists that the "parliamentary sovereignty" in Dicey's sense is a doctrine of law. Therefore, he holds the view that Parliament's legal power depends on a legal rule which is established by the courts. The point is presented by Jennings in the form of a paradox: since Parliament can change the law as it likes, it can alter the law about itself as well as the law about anything else.
    On the contrary the Dicey school has considered that no Parliament could legislate to prevent the repeal or amendment of its own enactments, or, to put it tersely, no Parliament could bind its successors. Under this view a fallacy in Jennings' attempt was to secure the settlement within the limits of the unmixed legal principle.
    H. W. R. Wade, who supports Dicey's view, refers to J. W. Salmond to solve the said paradox. What Salmond calls the "ultimate legal principle" is a rule which is unique in being unchangeable by Parliament, whose operation is ultimate and whose source is not legal, but only historical. He says that the doctrine of the parliamentary sovereignty is in one sense a rule of common law, but in another sense, it is the political fact upon which the whole system of legislation hangs.
    E. C. S. Wade, who also supports Dicey's view, cites from J. Bryce: "The historical facts which have vested power in any given sovereign lie outside the questions with which the law is concerned, and belong to historical or to political philosophy or to ethics."
    O. H. Phillips also says, "The legislative supremacy of the British Parliament, as well as being a legal concept, is also the result of political history and is ultimately based on fact, that is, general recognition by the people and the courts. It is therefore at the same time a legal and political principle." He refers to H. L. A. Hart, who calls it "the ultimate rule of recognition, " which may be regarded both as an external statement of fact and as an internal criterion of validity.
    Salmond's "ultimate principle" bears a close resemblance to Kelsen's Grundnorm. But R. T. E. Latham has succeeded in proving that the Grundnorm, whether or not it coincides with the written constitution, is prior and superior to the legislature and is daily so treated by courts, so that he denies the doctrine of the parliamentary sovereignty. On the other hand, according to some new views, Dicey failed in proving that the law made the legislature a sovereign law-making body, nor has any of his followers succeeded in doing so.
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  • [in Japanese]
    1981 Volume 1981 Issue 31 Pages 169-201
    Published: March 30, 1982
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    1981 Volume 1981 Issue 31 Pages 202-203
    Published: March 30, 1982
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    1981 Volume 1981 Issue 31 Pages 203-206
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    1981 Volume 1981 Issue 31 Pages 207-210
    Published: March 30, 1982
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    1981 Volume 1981 Issue 31 Pages 210-213
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    1981 Volume 1981 Issue 31 Pages 213-216
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    1981 Volume 1981 Issue 31 Pages 216-219
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    1981 Volume 1981 Issue 31 Pages 219-221
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    1981 Volume 1981 Issue 31 Pages 221-222
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    1981 Volume 1981 Issue 31 Pages 223-224
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    1981 Volume 1981 Issue 31 Pages 225-227
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    1981 Volume 1981 Issue 31 Pages 228-230
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    1981 Volume 1981 Issue 31 Pages 230-232
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    1981 Volume 1981 Issue 31 Pages 232-233
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    1981 Volume 1981 Issue 31 Pages 233-235
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    1981 Volume 1981 Issue 31 Pages 235-237
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    1981 Volume 1981 Issue 31 Pages 237-239
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    1981 Volume 1981 Issue 31 Pages 239-241
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    1981 Volume 1981 Issue 31 Pages 241-243
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    1981 Volume 1981 Issue 31 Pages 243-245
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    1981 Volume 1981 Issue 31 Pages 245-246
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    1981 Volume 1981 Issue 31 Pages 246-248
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    1981 Volume 1981 Issue 31 Pages 248-250
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    1981 Volume 1981 Issue 31 Pages 250-252
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    1981 Volume 1981 Issue 31 Pages 252-255
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    1981 Volume 1981 Issue 31 Pages 256-259
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    1981 Volume 1981 Issue 31 Pages 259-263
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    1981 Volume 1981 Issue 31 Pages 263-265
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    1981 Volume 1981 Issue 31 Pages 265-267
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    1981 Volume 1981 Issue 31 Pages 267-270
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    1981 Volume 1981 Issue 31 Pages 270-272
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    1981 Volume 1981 Issue 31 Pages 272-273
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    1981 Volume 1981 Issue 31 Pages 273-275
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    1981 Volume 1981 Issue 31 Pages 275-278
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    1981 Volume 1981 Issue 31 Pages 278-282
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    1981 Volume 1981 Issue 31 Pages 282-284
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    1981 Volume 1981 Issue 31 Pages 284-287
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    1981 Volume 1981 Issue 31 Pages 287-291
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    1981 Volume 1981 Issue 31 Pages 291-294
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    1981 Volume 1981 Issue 31 Pages 294-295
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    1981 Volume 1981 Issue 31 Pages 295-298
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    1981 Volume 1981 Issue 31 Pages 298-299
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    1981 Volume 1981 Issue 31 Pages 299-301
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    1981 Volume 1981 Issue 31 Pages 301-303
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  • [in Japanese]
    1981 Volume 1981 Issue 31 Pages 303-306
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