SHIGAKU ZASSHI
Online ISSN : 2424-2616
Print ISSN : 0018-2478
ISSN-L : 0018-2478
Volume 127 , Issue 8
Showing 1-5 articles out of 5 articles from the selected issue
  • 2018 Volume 127 Issue 8 Pages Cover1-
    Published: 2018
    Released: August 20, 2019
    JOURNALS FREE ACCESS
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  • 2018 Volume 127 Issue 8 Pages Cover2-
    Published: 2018
    Released: August 20, 2019
    JOURNALS FREE ACCESS
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  • Yoshihiro TAGA
    2018 Volume 127 Issue 8 Pages 1-34
    Published: 2018
    Released: August 20, 2019
    JOURNALS FREE ACCESS
  • Tomohiro NISHITA
    2018 Volume 127 Issue 8 Pages 35-51
    Published: 2018
    Released: August 20, 2019
    JOURNALS FREE ACCESS
    The present article is an attempt to reconsider the meaning of the so-called “legal dictum” said to be unique to Japanese medi-eval society, gokuzen no shinin, uttae nakuba, kendan nashi 獄前死人、無訴者、無検断(Even for a corpse found at the doorstep of the authorities, a criminal investigation will not be conducted without filing for litigation), and to systematically interpret that dictum within the context of medieval Japanese law enforcement procedures(kendan 検断).
    Up to the present, this “dictum” has been understood as a characteristic feature indicative of the inquisitorial/adversarial character of medieval criminal investigation procedures, and in a broader sense exemplifying the concept of self-help law(Selbsthilfe recht)deeply embedded in that society as a whole. In this view, the phrase無検断has also been interpreted as “criminal investigation will not be proceeded”.
    In contrast to such a view, there are many concrete examples of criminal investigations being conducted without a lawsuit being filed, necessitating litigation claiming such acts to be un-warranted and actual prohibitions to that effect issued by such authorities as the Kamakura Bakufu and Imperial Court.
    The purpose of the present article is to systematically understand the conventional interpretation of the words as a “legal dictum” in light of examples of cases clearly contradicting it and the need for both judicial and statutory efforts to be made in order to enforce it.
    The author begins with a review of the research to date regarding the dictum, in order to affirm the formation of the conventional interpretation and its problem points, concluding that a contradiction exists between how the scholarly opinion developed and the way in which criminal investigation procedures were supposed to be conducted in medieval times,suggesting the existence of problems among historians in the interpretation of the existing sources.
    Next, the author attempts to confirm how criminal investigations were actually conducted “on the ground” in medieval times by reexamining the available historiography pertaining to the relationship between litigation and criminal investigation. To begin with, in medieval times criminal investigations were conducted by various political forces according to their particular rights and privileges. In contrast, from the mid-Kamakura Period on, efforts were made to limit criminal procedures to litigation cases. These efforts were made by such forces as the Bakufu and estate(shoen 荘園)proprietors as humanitarian legislation to regulate the police authorities on the regional level. Meanwhile, in response to the rise of leagues on the local level organized in opposition to central shoen proprietors, the Bakufu, in particular, instituted formal modes and procedures in the hope of legitimizing the “criminal investigation without litigation”.
    Finally, the author attempts to confirm the circumstances surrounding legal disputes actually citing the “no criminal investigation without litigation” dictum, aiming to clarify its actual intention and meaning. The wording originated from a lawsuit in the 2nd year of the Shitoku 至徳 Era(1385)regarding the business managership(shugyo-shiki 執行職)of Toji temple 東寺 in Kyoto. The dispute involved a murder case, in which the results of a criminal investigation clearly implicating the perpetrator were refuted with the statement, “Even for a corpse found…without filing for litigation”. Therefore, the meaning of the dictum is clearly a denunciation of the practice of conducting criminal investigations without filing for litigation in response to the medieval conditions of many different political forces conducting their own criminal investigations, giving rise to cases of both brutality and impropriety.
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  • Toshihide TAKAYANAGI
    2018 Volume 127 Issue 8 Pages 52-75
    Published: 2018
    Released: August 20, 2019
    JOURNALS FREE ACCESS
    During the 1930s, the education policy of the Nationalist government was criticized by Japan for its anti-Japanese themes, and throughout the Second Sino-Japanese War, Japan attempted to remove and revise textbooks in its occupied territories portraying the country in a negative light. This article examines the process by which Japan came to identify and subsequently criticize the Nationalist government education policy as a key element of China’s anti-Japanese stance, especially during the time just following the Manchurian Incident, by analyzing how Japanese teachers both in Japan and Manchuria played a pivotal role in dealing with the issue. The research to date has mainly focused on the diplomatic aspects of the issue, but has yet to address the role played by educators.
    In 1928, the Nationalist government compiled a number of new textbooks which adhered to Sun Yat-sen’s “Three Principles of the People,” which the Japanese teachers at elementary schools in the South Manchuria Railway Zone regarded as being conducive to anti-Japanese sentiment. In response, these educators and South Manchuria Railway Company began publishing materials introducting China’s ‘anti-Japanese textbooks’, quoting excerpts translated into Japanese and English. This literature was used as a propaganda tool both in and outside Japan by the Ministry of Foreign Affairs and the League of Nations Association of Japan. A number of these treatises, which were published in Japan both before and after the Manchurian Incident and garnered a large readership, were cited in other books and articles, and even attracted attention within China.
    Meanwhile, groups of educators in Japan, especially the National Union for Primary School Teachers, which had hitherto not concerned itself with Chinese affairs, submitted recommendations to various interests in Japan, stressing the importance of Sino-Japanese educational cooperation and offering a solution to the issue of anti-Japanese education. Following the Manchurian Incident, these educators proposed to the Nationalist government a mutual revision of textbooks to promote mutual friendship, emphasizing the cultural similarities that existed between the two countries. On the other hand, in their recommendations to the Japanese government and the League of Nations, they took a more heavy-handed tone, demanding Draconian measures to counteract anti-Japanese education in China. The Japanese Ministry of Foreign Affairs also made use of such activities as an international propaganda tool; and Japanese teachers in both Manchuria and Japan believed that it was such anti-Japanese education that had served as the catalyst for such clashes as the Manchurian Incident.
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