Legal History Review
Online ISSN : 1883-5562
Print ISSN : 0441-2508
ISSN-L : 0441-2508
Volume 1993 , Issue 43
Showing 1-50 articles out of 66 articles from the selected issue
  • Kaoru KITANO
    1993 Volume 1993 Issue 43 Pages 1-72,en3
    Published: March 30, 1994
    Released: November 16, 2009
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    Among liveries, maintenances, arbitrations and forcible entries, "riot" is seemingly one but not important factor of the "bastard feudalism". Because of the relative scarcity of the statutes regulating riots, because of the accepted understanding that they were some social-wide happenings by common people like "Peasants' Revolts" and "Jack Cade's Rebellions", very few historians have paid their attentions to riots.
    Actually, riots were not rare in England in the later middle ages. Riots were normal and not necessarily serious ingrediants of the dayly life of gentry, especialy those who were more interested in their property rights than their participation in political affairs. This is not easy to understand from the surface of one or two statutes "of riot". However, once they find out the inner connections between the statutes of riot and each set of the statutes of liveries, maintenances, forcible entries, and, indeed, of novel disseisin, and also the connections among themselves, men can easily be persuaded of the real position and meanings of riots in the late medieval society.
    In this essay, I have set the main focus upon the inner connections among those seemingly separate and independent statutes. Some attention and labor was put, in course to find out those connections, on the contents of each statute and the development of each set of statutes.
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  • Akira HASEYAMA
    1993 Volume 1993 Issue 43 Pages 73-115,en3
    Published: March 30, 1994
    Released: November 16, 2009
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    This article considers the inheritance and change of Chinese law in ancient Japan, principally on the problem of indemnity system.
    First of all, Section 1 covers the considerations on the atonement account by the property dedication as seen in "Nihon Shoki (_??__??__??__??_)".
    Conventionally, such theory had been prevailed that the indemnity system chiefly by the property punishment existed also in Japan. This theory had been based on the legends as a proof that a person who braved a crime of treason against sovereign power was escaped from his death by dedicating to the power the land and people possessed by him.
    However, as a result of reconsideration, it has been now made clear that these legends were just created all at the stage of "Nihon Shoki (_??__??__??__??_)" compilation as a tale to explain the origin of "Miyake(_??__??_)" and "Nashiro(_??__??_)".
    Therefore, death punishment was enforced to the crime of treason as a rule even before "Ritsuryo(_??__??_)" system and the confiscation of property is considered to have been executed additional punishment.
    This does not mean naturally that the indemnity system was not existed at all in Japan before "Ritsuryo" system. According to Chinese historical documents such as "Gishi Wajinden (_??__??__??__??__??_)" and "Zuisho Wakokuden(_??__??__??__??__??_)", it is known that the practice similar to the indemnity system was existed in Japan in about 3rd to 6th centuries in connection with the theft crime.
    Accordingly, Section 2 covers the considerations on the process that the practice similar to indemnity system in ancient criminal law in Japan was excluded from official punishment of the ancient state and was gradually united to non-indemnity criminal system on the model of Chinese "Ritsu".
    In regional community, when a certain action was taken that damaged to the community, a person concerned was required to dedicate his property as "Harahe(_??_)". This practice is said to be a kind of indemnity system in a wide sense. After "Taikano Kaishin(_??__??__??__??_)", government prohibited such private practice and, at the same time, established unique criminal law different from the criminal law in Chinese sense. This makes us suppose that unique and inherent law was generated in Japan, although Chinese law was inherited.
    Section 3 adds the considerations by taking example of burning punishment(house burning) from the viewpoint of inheritance and change of the law.
    In the ancient criminal law of China, burning punishment was executed generally by burning the man as a retaliatory punishment against the murder of relative when he did it. In Japan, there were many examples of burning the house of criminal as a punishment for the crime of treason against sovereign power.
    In ancient criminal law of China, there were also examples of destroying the house of criminal against the crime of treason. But such examples were rare. Besides, this punishment was executed by destruction by all means but did not use fire. Japanese ancient tradition for burning the house not only destroying it is considered to have had incantational character to cut off defilement caused by such crime, as different from that of China.
    To sum up, the house burning in Japan has the character of inherent law with the change by conception of crime in Japanese manner, although it has a far origin from Chinese law.
    Thus, Japanese ancient criminal law was not specially isolated law, but had been developed in the East Asian law system with the center in China and such inherent law had been newly created in the process of the inheritance and change of Chinese law. This is the conclusion through all the description of this article.
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  • Moakoto SAIKAWA
    1993 Volume 1993 Issue 43 Pages 117-197,en5
    Published: March 30, 1994
    Released: November 16, 2009
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    The author of this article is a Japanese legal historian. In his view, it is clear that legal history is a branch of legal science: it is from the field of law. It was generated by the historical school in the 19 th century Germany. Indeed it has changed a great deal since then, but it has been a member of legal science. Historically and logically, it is obvious that legal history is a discipline which belongs to legal science.
    He, therefore, defines it as this: legal history is a branch of legal science and it makes a historical research/study of law.
    However, many legal historians in Japan-in particular Japanese legal historians-have not thought so. They have lost the conviction that legal history is a legal science. They seem to have lost their academic identity though many of them work for the faculty of law and teach the subject. In other words, they can hardly make clear the qualities of their research/study. This has some historical reasons. One is that their antecedents-ISHII Ryosuke is among them, for instance, and he has had a great influence on this field in Japan, especially on Japanese legal history-have advocated that the discipline belongs both to history and to legal science. Many legal historians have accepted this assertion with little careful examination. Their careless acceptance of the view has caused the present situation that they have lost their academic identity. So the author re-confirms that legal history is a legal science.
    Moreover, he makes a reference to the characteristics of legal history and continues to put forward his theoretical model which is based upon the relations of politics, law and economy and which interprets history, in particular Japanese history. He also establishes a new periodization in Japanese history according to his model. He points out this too: kinsei (_??__??_) in Japanese history should be translated into ‘the latter half of the medieval times’ in the light of three aspects-politics, law and economy-though it is often put into ‘early modern times.’
    In the conclusion he lays emphasis on the necessity of the innovation in legal history of Japan-whether the object of its study or research is the West or the East.
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  • Atsushi SHIMOZAWA
    1993 Volume 1993 Issue 43 Pages 199-242,en7
    Published: March 30, 1994
    Released: November 16, 2009
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    In this essay, first, I try to make a conceptualization of the word AKUTO that was repeatedly used in the orders and the commands of the Kamakura Shogunate. It is presumable, I think, that in the prime of the Kamakura Shogunate, in other words, through the latter three-quarters of the thirteenth century, the word AKUTO continued to be used as a term of criminal law. Assumably it implied more or less four kinds of criminal acts; that is to say, was equivalent to four types of crimes, such as YOUCHI (burglary), GOTO (robbery), SANZOKU (bri-gandage), and KAIZOKU (piracy). I think it nearly correct that there is no doubt about this in the light of the articles (Article 3 and Article 32) of the SHIKIMOKU (alias dictus JOEI-SHIKIMOKU or, rather, GOSEIBAI-SHIKIMOKU), the fundamental statute of the Kamakura Shogunate. Moreover, I must point out a fact of some importance that with the passage of time, especially with the decline of the Kamakura Shogunate in the fourteenth century, as types of criminal acts, the categories of the concept AKUTO enlarged comprehensively, and in conse-quence the primary usage of the word AKUTO came to reduce its clearness. In the last stage of the Kamakura period, it came to be remarkably difficult to regard the AKUTO acts as those mere criminal, which came under the four types, namely, YOUCHI, GOTO, SANZOKU, and KAI-ZOKU. (I don't think that it came to be utterly impossible to regard the AKUTO acts as such, though.)
    Secondly, depending upon historical materials, I try to inquire into several questions concerned with the suppression policies enforced on the AKUTO offenders by the Kamakura Shogunate. As a result, I think, I manage to make a few facts of some importance nearly clear. The facts are as follows. The first is that, in the Kamakura period, the AKUTO act was considered as a very grave offense that could be ranked with MUHON (rebeldom) or with SETSUGAI (murder), and it was known to the people who belonged to the Kamakura Shogunate and their contemporaries as a crime that deserved DANZAI (punishment), which had to be executed by means of any penalty of the three types, namely, SHIZAI (death penalty), RUZAI (banishment), and SHORYO-MOSSHU (forfeiture of estate). The second is that the competence and the duty to arrest the AKUTO offenders were mainly imposed upon SHUGO (sheriffs appointed by the Kamakura Shogun) and JITO (bailiffs in manors appointed by the Kamakura Shogun); but actually this scheme of arresting the AKUTO offenders couldn't obtain the desired results, because the SHUGO and the JITO were apt to neglect to fulfill their duties. (Moreover, they even sheltered the AKUTO offenders on occasion.) The third is that the Kamakura Shogunate tried to cope with AKUTO-HOKI (infestation of banditti) through AKUTO-KEIGO (guard against banditry), in other words, it set up TONOI-YA (sheds for night watch) and KEIGO-YA (sheds for vigilance) all over the country, not to speak of KAGARI-YA (sheds equipped with torch-light) in Kyoto and Kamakura, as a line of the chain of its suppression policies, in order to advance the apprehension of the AKUTO offenders. And the fourth is that the Kama-kura Shogunate designed to make the most of FUBUN (rumors) about the AKUTO offenders as the information relating to them with gather-ing KISHO-MON (written oaths) from GOKENIN (the Kamakura Shogun's vassals). In short, the Kamakura Shogunate devised so much variegated countermeasures against the AKUTO offenders, nevertheless, it couldn't eradicate them after all. On the other hand, the AKUTO offenders went on increasing in number from day to day.
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  • Yoriko HAYASHI
    1993 Volume 1993 Issue 43 Pages 243-269,en9
    Published: March 30, 1994
    Released: November 16, 2009
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    Most scholars have suggested that the control of the five highways and other routes throughout Japan by the Shogunate invaded the rights of feudal domains. However, each feudal domain also had some control over their part of each route, resulting in a double rule over the routes. This paper proposes to look at the "double rule" over the ferry portions of the routes by comparing a ferry route under Shogunate control with one that wasn't.
    I analyzed the two ferries on the Kiso-river in the Owari-domain. One of these was the Uchida-ferry on the Inagi-route, which was not under Shogunate control. The other, the Okoshi-ferry on the Mino-route, was under Shogunate control and was often used by people in the privileged class, including feudal lords travelling to and from the capital, under the alternate attendance system. Because of the high rank of the travellers along the Okoshi-ferry route, and the heavier traffic there in general, the Owari domain provided more ferryboats, allowances for the ferrymen, etc. for the Okoshi-ferry than the Uchida-ferry. Moreover, travellers of the highest rank, called "Gochiso-daimyo" were allowed to cross for free. On the other hand, the only services that the Shogunate provided for the Owari ferry routes, were patrolling the routes, making the Owari domain install "Kosatsu" bulletin boards, and giving advance notice of the movement of high-ranking persons. A later Shogunate, however, provided some exceptional financial assistance to the Okoshi-ferry route, but the Owari domain embezzled part of the funds. To sum, the Shogunate established an indirect, rough control of the important ferry-routes in the domains, while each domain kept direct supervision over them, resulting in a kind of "double rule" over some routes.
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  • Masahiro Wada
    1993 Volume 1993 Issue 43 Pages 271-308,en10
    Published: March 30, 1994
    Released: November 16, 2009
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    The feature of the subject in Ke-Ju system of the Ming period, is that judicial decisions were adopted instead of the poetry. From the first, Zhu Yuán Zhang wanted to exclude such a false sentence as has danger that fact would be hidden, and he demanded sincere learning. That judicial decision was adopted instead of the poetry by Zhu Yuán Zhang was also because he wished that a government official should have a deep understanding for the confucian morals and the administrative ability.
    Judicial decision of the Ming period can be descended from Pàn (_??_) of the Táng Period, or from Duàn Àn (_??__??_) of the Xin Ke Míng Fa Ke that was established by Wáng Ãn Shí, who claimed sincere learning in 1069 (Xi Níng 2 Mián). However, Deng Ke Lú of Xiang Shì ·z;Huì Shì in the Ming period does not show us an example answer on judicial decision. Accordingly, its contents seem to have derived from an annotated edition of Lú Lì which was published for the use of any government official, clerk, students preparing for an examination of Ke-Ju in the late Ming period.
    Judicial decision was adopted in the Xiang Shì of Ming period as one of the Ke-Ju system, and the most frequently used clause was set at Jia Jing (_??__??_)-Wàn Lì (_??__??_) era of the late Ming period, Li Lù(_??__??_) [Jìn Zhi Yíng Sòng (_??__??__??__??_)]. When we study this clause in the annotated edition of Lù Lì (_??__??_), we can find that «Zhao Ni (_??__??_)»and«Pàn Yu (_??__??_)» are very important. The first step of the «Zhao Ni»is an acknowledgment of suspicion toward Zhào Jia that welcomed and sent off their superiors as well as Qián Yi which accepted welcome and send-off of Zhào Jia. The second step is to make the original bill of culpability (_??__??_=_??_·_??_). The third step is to make the original bill of punishment (_??_) which imposes Penalty of Zhàng (_??_) ninety to the principal and an accessory.
    In all cases, the examples of the «Pàn Yu» regarding [Jìn Zhi Yíng Sòng], are composed of from one hundred to one hundred forty two letters. When we analyze each phrase in judicial decision, we can easily find that, in all cases, it shows an antithesis of eight crotches. In short, Pàn Yu= [Jìn Zhi Yíng Sòng]refers to the historical cases and admonishes the government official that observed or deviated the rules on the welcome and send-off as a matter of courtesy at administration of justice. It also, regarding the application of a law, requires to make up a literary composition full of flowery rhetoric which consists of eight crotches on wording the acknowledgment of suspicion as well as the judgement of a punishment.
    Set questions of judicial decision are frequently adopted in the late Ming period. Such a feature seems to be relevant to the conflicts of the Ju Hé (_??__??_) ·Kao Chá (_??__??_) of Fu·Àn (_??_·_??_) for the local government official that have been actualized in Jia Jing-Wàn Lì era.
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  • [in Japanese]
    1993 Volume 1993 Issue 43 Pages 309-310
    Published: March 30, 1994
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    1993 Volume 1993 Issue 43 Pages 310-314
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  • [in Japanese]
    1993 Volume 1993 Issue 43 Pages 314-317
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    1993 Volume 1993 Issue 43 Pages 317-321
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  • [in Japanese]
    1993 Volume 1993 Issue 43 Pages 321-323
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    1993 Volume 1993 Issue 43 Pages 323-325
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    1993 Volume 1993 Issue 43 Pages 325-327
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    1993 Volume 1993 Issue 43 Pages 327-329
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    1993 Volume 1993 Issue 43 Pages 329-331
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    1993 Volume 1993 Issue 43 Pages 331-333
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    1993 Volume 1993 Issue 43 Pages 333-334
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    1993 Volume 1993 Issue 43 Pages 334-336
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    1993 Volume 1993 Issue 43 Pages 337-338
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    1993 Volume 1993 Issue 43 Pages 338-342
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    1993 Volume 1993 Issue 43 Pages 342-347
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    1993 Volume 1993 Issue 43 Pages 347-353
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    1993 Volume 1993 Issue 43 Pages 354-359
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    1993 Volume 1993 Issue 43 Pages 359-365
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    1993 Volume 1993 Issue 43 Pages 365-371
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    1993 Volume 1993 Issue 43 Pages 371-373
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    1993 Volume 1993 Issue 43 Pages 373-375
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    1993 Volume 1993 Issue 43 Pages 375-377
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    1993 Volume 1993 Issue 43 Pages 377-379
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    1993 Volume 1993 Issue 43 Pages 379-381
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    1993 Volume 1993 Issue 43 Pages 381-386
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    1993 Volume 1993 Issue 43 Pages 386-388
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    1993 Volume 1993 Issue 43 Pages 388-391
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    1993 Volume 1993 Issue 43 Pages 391-393
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    1993 Volume 1993 Issue 43 Pages 393-395
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    1993 Volume 1993 Issue 43 Pages 395-398
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    1993 Volume 1993 Issue 43 Pages 398-400
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    1993 Volume 1993 Issue 43 Pages 400-402
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    1993 Volume 1993 Issue 43 Pages 403-405
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    1993 Volume 1993 Issue 43 Pages 405-407
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    1993 Volume 1993 Issue 43 Pages 407-408
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    1993 Volume 1993 Issue 43 Pages 409-410
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    1993 Volume 1993 Issue 43 Pages 410-412
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    1993 Volume 1993 Issue 43 Pages 412-414
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    1993 Volume 1993 Issue 43 Pages 414-416
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    1993 Volume 1993 Issue 43 Pages 417-433
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    1993 Volume 1993 Issue 43 Pages 433-441
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    1993 Volume 1993 Issue 43 Pages 441-445
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    1993 Volume 1993 Issue 43 Pages 445-448
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    1993 Volume 1993 Issue 43 Pages 449-451
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