Legal Hitory Review vol.45 (1995)
Summaries of Articles

Concerning the Separation between Hon-kuji (Main Suits) and Kane-kuji (Money Suits) in the Civil Litigation of the Tokugawa Shogunate

by Fumio JIMBO

We could not obtained from the author
the agreement for the reprint of this summary on the web-page, sorry.

A Study on the Tang and the Ancient Japanese Statutes on Mourning & Burial

--- with special reference on the difference between Tang and Japan Statutes about arrangement of provisions ---


The Statutes on Mourning and Burial which prescribes mourning rite, undertaking etc. for the emperor and officials was a chapter of Statutes (administrative Code) from western Jin (268) to Northern Song period. Arrange order of this chapter was always second to the latest (Miscellaneous),because traditional Chinese idea regards rite to the deceased, in spite of its importance, was detestable and must be put next to the latest in state institutions. On the contrary, in ancient Japanese Taiho (701) and Yoro (718) Statutes which imitate Tang Yonghui Statutes (651), the chapter was situated former to the Arrest fugitives and Prison; this was harmonious to traditional Japanese idea that recognized the rule towards criminals must be situated after the law for deceased. Japanese Statutes on Mourning and Burial have 17 provisions, of which 16 accepted Tang corresponding provisions and the final one was adopted from Tang Yonghui (Xianqing) Ritual Observances, and had not added any original provision. Tang Statutes on M. and B. reconstructed by late Prof. Noboru NIIDA had 25 provisions, 8 of them were entirely omitted and the other provisions also shortened and simplified in Japanese Statutes. For example, surrounding tombs to Imperial mausoleum in Tang was not accepted in Japan, the banner for the deceased, burial clay doll and all kinds of grave goods in Tang were abolished in Japan. We may perhaps reconstruct and add 4 more Tang Statutes provisions through minute investigation on Tang Liudian ch. 4, 18 and Tongdian ch. 86. Prof. NIIDA's reconstruction entirely follows Japanese Yoro Statutes concerning provisions arrange order, nevertheless author concludes after many-sided research, Japanese Statutes on M. & B. had altered the arrangement of provisions also.

Author's temporary revised Tang provisions arrangement as follows; (Prof. NIIDA's No.šN.)

1-N. 3, 2-N. 4, 3-N. 6, 4-N. 8,5-N. 9, 6-add.,7-N. 10, 8-N. 5, 9-N. 7,10-N. 22, 11-N. 11, 12-N. 12, 13-N. 13, 14-N. 14, 15-N. 15, 16-N. 16, 17-N. app., 18-N. 17, 19-N. 18, 20-N. 19,21-add., 22-add., 23-N. 2, 24-N. 1, 25-N. 20, 26-add., 27-N. 23, 28-N. 24, 29-N. 21

Ancient Japan from 4 to 6 century was called the Kofun (old tomb mounds) period, which was distinguished by huge keyhole-shaped tomb mounds, and from early 7 century the idea of thrifty burial was imported from China and influenced increasingly over Japanese funeral customs. Japanese Statutes on M. & B. is seemed as a final regulation towards ancient Japanese funeral manners.

On the Origin of Ren Qing (lî), Human Sentiment, as Chinese Judicial Norm

by Haruhito SADATE

We find the word Ren Qing (lî), human sentiment, as a judicial norm in decisions given by district courts of Imperial China. It is argued by a seer of this study, Dr. Shiga Syuzo, that Ren Qing seems to be the king of rules in the Qing Dynasty. But in “Ming-Kuang-Shu-Pan-Qing-Ming-Chi” (–ŒŒö‘”»Ž–ŸW), a collection of cases decided by provincial officials during the southern sung period, the word Ren Qing is found out only with quotation of the statute law. Namely, Ren Qing was dependent on written law. Then we must reconsider the relation between Ren Qing and law. For this purpose, it is appropriate to trace the origin of Ren Qing as a judicial norm. The earliest Ren Qing is discovered in the speech of Liu Yi Qing (—«‹`Œc), a member of the imperial family of the Sung Dynasty in 5th century, and this Ren Qing was mentioned to make up for a lack of law. Ren Qing with the statute law was originally used by Yan Shi Gu (ŠçŽtŒĂ) in his annotated edition for Han Shu (Šż‘) in 7th century, though this Ren Qing was nothing but a rhetorical term. Finally, there remains a question about the origin of Ren Qing applied to a case in opposition to the statute law.

Rejoinder to the Anonymous Book Review (The review appeared on the Mainichi dated Aug. 1, 1994. The book reviewed is “Nihon Kindai Ho Ron (The Modern Japanese Law)” (E.Yamanaka ed., Horitsu Bunka Sha, 1994))

by Einosuke YAMANAKA

Our recent publication “Nihon Kindai Ho Ron” surveys and examines the legal history of modern Japan with special reference to the Japanese legal culture.

While it generally received favorable reviews on various periodicals, the tone of the anonymous review was very negative and critical. Though critical reviews are as much valuable as friendly ones, this anonymous review does not seem to be the one based upon a fair reading of our publication.

We have two rejoinders, one to the reviewer and the other to the Mainichi. The reviewer commented as “crude and childish” our characterization that the modern Japanese state was imperialistic rather than bourgeois democratic. For the reviewer assumed that our description was based upon a false idea that an imperialistic state and a bourgeois democratic state are mutually exclusive. But our relevant paragraph is quite obvious to tell that this is not our position. It seems that the reviewer's comment derives from a grossly careless reading of the text.

The second rejoinder goes to the editor of the press. Believing that the reviewer's comment is very unfair, we requested the Mainichi to print our response to the review. Our request was flatly turned down. I am of the opinion that the rejection by the press amounts to be the unjustifiable denial of the so-called right of access to the mass media.

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