This is a treatise describing the development of legal concepts in Japan. It is divided into ten sections, each of which is independent. But if they are read through, Dr. Nakada's view on the development of legal concepts in Japan becomes clear.
Up till the medieval times, adjudications of the law court had legal force and were contrasted with the enacted law. Popular customs were also a kind of norm other than the positive law till the middle of the medieval times. In the latter half of the medieval times, the customary law was called
Minkan-no-Taiho (popular great law) contrasted with
Tenka-no-Taiho (public great law). But in the
Tokugawa Shogunate era, these three forms of law were unified into the single concept of "
Taiho".
What has been stated above is the conclusion reached by Dr. Nakada in this description of history of development of the legal concepts in Japan (Cf. the ninth section). In other sections, however, Dr. Nakada gives his suggestions on various problems of legal history.
In the third section, Dr. Nakada discusses the development of the system of. penal (
lü _??_) and non-penal (
ling _??_) laws in China. In the Ch'un-ch'iu era,
hsing-shu _??__??_ (document of penalty) was the criminal law that defined the grave crimes and provided penalties for them, while
chiao-ling-chih-shu _??__??__??__??_ (document of discipline) was the supplementary laws which were enacted whenever necessity arose, Dr. Nakada explains. He advances to say that the former was codified into
lü and the latter into ling in the Han era. But
ling was still supplementary to
lü. Dr. Nakada further explains that
ling was separated from
lü in the Chin era acquiring an independent position and that it became the non-penal code.
The fourth section says that
Imanogyoji (_??__??__??_) and
Rei (_??_) of the
ritsu-ryo period were the laws enforced by the government agencies in conformity with
Horei (_??__??_).
The first section advises those who want to study the old Japanese law in connection with politics not to forget that the principle of
Tokuji(_??__??_) (moral influence of the ruler) was not the essence of the dictatorship in the ancient Japan but only one attribute of it. Dr. Nakada says also in the seventh section that the Chinese law and the Japanese law were not examples of government through moral influence, though some believe so.
The seventh and the tenth sections say the lack of clear consciousness of right in the old Japanese law does not indicate that the people willingly subjected themselves to the moral influence of the ruler but that the law was imposed on the people by the ruler in their own interests. Dr. Nakada points out that the law was not created by the people themselves. (Ryosuke Ishii)
A Sumerian Record of Criminal Procedure
Keikichi Harada
The New York Times in its March 12 issue in 1950 reported on the archaeological finds obtained in the excavation at Ras Shamra in Syria. The Manchester Guardian in the March 4 issue of 1950 gave some account on one of the clay tablets excavated at Nippur of Sumer. Late Professor Keikichi Harada makes a brief comment on these two newspaper reports. He surmises that the clay tablet is the same one as what is usually called " di-til-la" (finished procedure). This is the last manuscript written by Professor Harada, who passed away on September 1, 1950. The professor intimated his intention to make the manuscript public several days before his death.
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