Legal History Review
Online ISSN : 1883-5562
Print ISSN : 0441-2508
ISSN-L : 0441-2508
Volume 1983 , Issue 33
Showing 1-50 articles out of 67 articles from the selected issue
  • Atsutoshi HAMASHIMA
    1983 Volume 1983 Issue 33 Pages 1-60,en3
    Published: March 30, 1984
    Released: November 16, 2009
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    In the Ming and the Qing periods all the local administration offices, such as fu _??_ (prefecture), zhou _??_ (subprefecture) and xian _??_ (county), had only one prison, jian _??_, each within their formal institutions. In the late Ming and the early Qing periods, however, we find the existence of another, different type of prisons, generally called pu _??_ in the Jiangnan provinces, and also called cang _??_ in the other provinces.
    These new jails were not legally authorized, but were instituted by each local administration office of its own accord. The high officials of provincial level, such as xunfu _??__??_ (Grand Coordinator) and xun'an _??__??_ (Regional Inspector), treated and utilized these new jails virtually as the institutional section of local administration office, and sometimes ordered that not only jian but also pu or cang should be inspected at regular intervals. In the Xunzhi _??__??_ reign, the bureaucrats of both the central and the local governments frequently referred to these jails in their memorials submitted to the Emperor. We may conclude from this that these jails were practically, though not legally, as good as authorized by the Emperor and the ministers of the Qing central government. In the late Kangxi _??__??_ reign, however, the Emperor gave a consent to the proposal, submitted by a scholar-bureaucrat, Zhou Qingyuan _??__??__??_, that a ban should be placed against instituting and utilizing the illegal jails, such as pu, cang, suo _??_, dian _??_, ce _??_ and so on. And this prohibition became an express provision in the Great Qing Codes after the Yongzhen _??__??_ reign. But the local officials obeyed this ban only ostensibly, and actually and practically ignored it. Thus the illegal jails continued to exist through the middle and late Qing period under the names of zixinsuo _??__??__??_, shoujinsuo _??__??__??_ and so on.
    In this article the author has investigated into the existence or non-existence of these informal jails in each province of the mainland China in the late Ming and the early Qing periods. As to the Provinces of Jiangsu, Anhui, Zhejiang, Hebei, Henan, Shangdong, Shanxi _??__??_ and Fujian, the existence of this new type of jails during these periods has been confirmed in all or some of their subprefectures and counties. In Guangdong, this new type of jails seems to have been still in the process of growth, and in Hubei, Hunan, Jiangxi and Sichuan it was not yet instituted. As to the other provinces, such as Shanxi _??__??_ Guangxi, Yunnan and Guizhou, the author has no source materials from which to conclude. In the author's opinion, the growth of this new type of jails was closely connected with the social, economic and political change taking place among the rural communities of these days, a change characterized by the collapse of the power of the rural-landlord class.
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  • 1983 Volume 1983 Issue 33 Pages 51
    Published: 1983
    Released: November 16, 2009
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  • Norio YOSHIDA
    1983 Volume 1983 Issue 33 Pages 61-95,en5
    Published: March 30, 1984
    Released: November 16, 2009
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    A shiki (_??_) and a chigyo (_??__??_) are regarded as indications of a landship during the medieval times in Japan. About the shiki, there are two opposite theories; one identifies the shiki in the medieval time with a government post in the anciet, the other regards the shiki as a real right. This dispute has an influence upon historical theories up to now. On the contrary, some historians take a new look on the shiki as a sort of a feud. Representative historians take a theory of a complex about public and private matters to grasp a structure of the medieval history in Japan. According to their viewpoint, a formation of a private ownership is a origin of a feudal ownership. In this article, however, I think a hereditary ownership on the premise that feudal ownerships are established. Therefore, I attend to most of shikis have a word, soden (_??__??_), with that, people living in the medieval claimed a hereditary right in many actions.
    The claims for a hereditary right appeared in the middle of the Heian-period, and its owner appointed by his parent was written on a yuzurijo (_??__??_).But hereditary owners were so often infringed by outsiders that they contribute their shiryo (_??__??_) to an influential person to protect himself. And its accepter was looked upon as a lord. At a contribution, a special contract, for example, handed down only to descendants, was exchanged between the both so that an accepter guaranteed the hereditary ownership for a contributor. After that, the lord appointed the contributor a so-and-so shiki, for example, Geshi-shiki (_??__??__??_). The appointment to the shiki yielded to a hereditary contract if it had been not violence of an accepter's right. Consequently I think that the appointment to the shiki was equivalent to a bestowal of a hereditary ownership that the Kamakura-bakufu (_??__??__??__??_) adopted. People living in the medieval thought shiki to be inherited.
    About 12th century, powers on the Dynasty worked out logics of a buntsuke (_??__??_) and a betsu-soden (_??__??__??_) from an established system to warrant the inheritance, the former to deny an effect of an inheritance, the latter to deny an appointment. The betsu-soden meant an inheritable right peculiar to a collateral line that was not forfeited by a heir. When the general public claimed a right of a betsu-soden in 13th century, they refused to pay a land-tax to destroy a rule by a lord. I find a good chance to form an exclusive and private landownership. But the betsu-soden was denied by a policy called the kuge-tokusei (_??__??__??__??_), and that brought a change in a feudal phase.
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  • Tsuyoshi HORI
    1983 Volume 1983 Issue 33 Pages 97-122,en6
    Published: March 30, 1984
    Released: November 16, 2009
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    Since the ch'in documents were discovered in Hupei, China, remarkable progress has been made in the field of Chinese history.
    This thesis aims to investigate some of the legal policies that were made during the Ch'in and Han Dynasties.
    SECTION I covers the rules on the "excuses and extenuations" from punishment for the youth and the aged during Ch'in Dynasty.
    We know that during the T'ang Era general rules of "excuses and extenuations" were integrated into their legal system.
    Through the examination of Ch'in documents we can trace back some of these general rules to the Ch'in-lü _??__??_.
    Namely, in trials for penal offences, allowances were made for the youth and the aged. But the definitions of the "youth" during the Ch'in Dynasty were different from the definitions of "youth" used during the Han Dynasty to the present.
    During Ch'in Dynasty "youth" and "adult" were. distinguished by one's height.
    The dividing line between "youth" and "adult" was set at 6 Ch'in feet (23.1cm×6=138cm).
    So, when a "youth" commits a crime, his punishment is commuted.
    In regard to the aged person, his rights were protected by a special provision, namely the provision of "pu hsia" _??__??_.
    SECTION II mainly covers the general rules of "excuses and extenuations" during the Han Dynasty. During the Han Dynasty, further provisions were made, such as
    1) Provisions for those under age fifteen, for youth under ten, eight and seven, various degrees of commutions were done.
    2) With Confucian influence, the policies of mercy for the aged, disabled and women were applied one after another, and the policies were completed in the T'ang-lü _??__??_.
    SECTION III covers the census-taking system.
    Through "Hou Han shu" _??__??__??_, we know that during the Han Dynasty the annual census-taking was held in Aug. of each year. Through my research of the Ch'in documents, I have proven that this Han system is traceable to the Ch'in Dynasty.
    SECTION IV covers the meaning of a passage in Han-chiu-i _??__??__??_.
    It includes the following provision: "nien wu shi liu mien" _??__??__??__??__??_.
    In 1941, Prof. Shigeo Kamata theorized that this passage shoud be a provision concerning the land tax and service duties.
    On the other hand, in 1957 Prof. Mitsuo Moriya theorized that this passage was a reference to a provision in the "excuses" for punishment. Prof. Kamata's viewpoints are probably closer to the truth.
    The ability of tax and service duties was determined by the person's "productive capacity". This "productive capacity" was determined by the person's medical status.
    In other words, person's ability was determined on medical grounds. During the Han Dynasty "Huang ti su wan ching" _??__??__??__??__??_ was widely read and accepted as the medical text. It reads as following: "at the age of fifty-six, man's liver, muscle and generative functions decline" (VOL, 1).
    The passage is the basis for the "nien wu shi liu mien "provision.
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  • Takayoshi NISHIMURA
    1983 Volume 1983 Issue 33 Pages 123-157,en8
    Published: March 30, 1984
    Released: November 16, 2009
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    1) My purpose in this paper is to analyze, especially in a concrete form, the methods of legal thinking and the types of judgements that the Roman jurists and practicians introduced into the interpretations of law during the creative period of early classical times. In particular, I make an attempt to consider the process of development of the Lex Aquilia in the historical society concerned.
    2) First, on the theoretical bases, it is necessary to re-examine the idea that legal texts were generally interpreted on the basis of voluntaristic theory at that time. Analyzing the texts of the Lex Aquilia, it seems that this idea is not supportable. The theory of Johannes Stroux proposed in 1926 still seems to be accepted only with reservations. In other words, Roman jurists had no system of voluntaristic interpretation which emphasises the will.
    After the controversy about his theory, at the end of the 1960's, two remarkable contributions to the methods of interpretation were published. Their authors discussed the relation between words of law (verba legis) and intention (voluntas, sententia). After investigating the rhetorical doctrine of status legales, they turned to the Roman jurists and tried to make clear their methods or techniques of interpretation. Then, Dr. Bernard Vonglis insists on the idea of historical legislator's will, according to his two standpoints as the following.That is to say, first, the legislator's will is an idea expressed by the words which the legal texts constitute and, therefore, one must inquire into this intention from the texts directly, secondly, the interpreters who are responsible for applying a law should be obedient to the legislator's will. (B. Vonglis, La lettre et 1'esprit de la loi, p. 31, Paris 1968). On the contrary, Prof. Uwe Wesel, extracting three types of methods in dealing with statutes out of the Roman legal sources, puts great emphasis upon the character of adhering to the literal meaning of the words used .in law and upon the possible extension of this meaning (U. Wesel, .Rhetorische Statuslehre and Gesetzesauslegung der romischen Juristen, S. 133f., Köln/Berlin/Bonn/München 1967). In his opinion, the criteria probably used by the Roman jurists are as follows: 1. the meaning of the statutory words must be determined, 2. proposal must be made for the grant of praetorian actions based on the model of the statute, 3. there must be argumentation according to the sententia as opposed to the verba.
    3) With this various viewpoints, it is impossible for us to begin with any legal concept, institution or definition and so forth which were reconstructed from the Roman sources by conceptual jurisprudence, or legal positivism. Indeed, we need to try to examine the historical.process of their formation.
    I would, therefore, be able to give three points of view. In the first place, the theoretical consequences of the Lex Aquilia in classical law which are well-known to us are, in fact, of the jurists' activities in legal interpretation from the enactment of the lex at B. C. 3 to the end of the Republic or early Principate, and of the praetorian development of law. Based on these facts, interpretation of laws done by jurists is directly concerned with the judicial judgements of praetors; in other words, it is closely connected with a decision as to whether or not praetors are able to substitute the legal relations for the facts in social lives.
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  • [in Japanese]
    1983 Volume 1983 Issue 33 Pages 159-181
    Published: March 30, 1984
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    1983 Volume 1983 Issue 33 Pages 182-185
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    1983 Volume 1983 Issue 33 Pages 185-193
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    1983 Volume 1983 Issue 33 Pages 193-197
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    1983 Volume 1983 Issue 33 Pages 197-199
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    1983 Volume 1983 Issue 33 Pages 199-201
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    1983 Volume 1983 Issue 33 Pages 202-203
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    1983 Volume 1983 Issue 33 Pages 203-207
    Published: March 30, 1984
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    1983 Volume 1983 Issue 33 Pages 207-209
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    1983 Volume 1983 Issue 33 Pages 209-211
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    1983 Volume 1983 Issue 33 Pages 211-214
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    1983 Volume 1983 Issue 33 Pages 214-216
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    1983 Volume 1983 Issue 33 Pages 216-218
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    1983 Volume 1983 Issue 33 Pages 218-220
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    1983 Volume 1983 Issue 33 Pages 220-222
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    1983 Volume 1983 Issue 33 Pages 222-224
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    1983 Volume 1983 Issue 33 Pages 224-227
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    1983 Volume 1983 Issue 33 Pages 227-230
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    1983 Volume 1983 Issue 33 Pages 230-232
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    1983 Volume 1983 Issue 33 Pages 232-235
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    1983 Volume 1983 Issue 33 Pages 235-237
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    1983 Volume 1983 Issue 33 Pages 237-241
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    1983 Volume 1983 Issue 33 Pages 241-243
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    1983 Volume 1983 Issue 33 Pages 243-245
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    1983 Volume 1983 Issue 33 Pages 246-247
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    1983 Volume 1983 Issue 33 Pages 247-249
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    1983 Volume 1983 Issue 33 Pages 249-251
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    1983 Volume 1983 Issue 33 Pages 251-253
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    1983 Volume 1983 Issue 33 Pages 253-255
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    1983 Volume 1983 Issue 33 Pages 255-258
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    1983 Volume 1983 Issue 33 Pages 258-262
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    1983 Volume 1983 Issue 33 Pages 262-264
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    1983 Volume 1983 Issue 33 Pages 265-267
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    1983 Volume 1983 Issue 33 Pages 267-268
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    1983 Volume 1983 Issue 33 Pages 269-271
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    1983 Volume 1983 Issue 33 Pages 271-273
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    1983 Volume 1983 Issue 33 Pages 273-276
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    1983 Volume 1983 Issue 33 Pages 276-278
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    1983 Volume 1983 Issue 33 Pages 279-280
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    1983 Volume 1983 Issue 33 Pages 281-282
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    1983 Volume 1983 Issue 33 Pages 282-285
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    1983 Volume 1983 Issue 33 Pages 285-288
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    1983 Volume 1983 Issue 33 Pages 288-290
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    1983 Volume 1983 Issue 33 Pages 290-293
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  • [in Japanese]
    1983 Volume 1983 Issue 33 Pages 294-295
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