Legal Hitory Review vol.50 (2000)
Summaries of Articles

Two Types of Greek Attitude towards Conflicts and Disputes : An Analysis with Special Reference to Peithomai and peitho
by Yasunori KASAI
+key words : Greek law, rhetoric, persuation, dispute resolution,Homer

        This essay tries to demonstrate that there were two contrasting behav- iour patterns manifest by parties faced with conflicts and disputes in ancient Greece. In one those concerned attempted to settle their differences by referring to their shared assumption of their situations and relationships involving surrounding third parties. I call this the type of sharing assump- tion. In the other pattern, they defied the claims of opposing party with their own contradicting interpretation of their relationships. I call it the type of defying assumption. In this latter type they often failed to reach a settlement.
        The method employed in this paper is to analyze the dispute scenario with particular reference to a Greek word, peitho, which is the central notion in Greek rhetoric (e.g " Plato's Goygias) , and especially the differell6ces in implication between the middle voice peithomaj, and the active peitho.
        My analysis starts with the quarrel between Agamemnon and Achilleus which extends all through the Iliad. In Book i all the instances but one (1, 132) are in the middle voice and illustrate the assumption shared by the two parties and surrounding Achaians of their relationships in terms of the distribution of spoils. By contrast, the instances of the active Peitho in Books 1 and 9 well illustrate the situation in which one party defies the assumptions of the other. Thus, I argue that their behaviour patterns provide illustrations for the two types of Greek attitude towards dispute resolution.
        Further references can be drawn from other scenes in Greek literature which contains countless examples of disputes and conflicts. From them I only take a few illuminating examples. I suggest that the famous carpet scene in Aeschylus' Agamemnon offers us a subtle example of the first type in a sharp contrast to the scene in the Odyssey Book 23 where Odysseus and Penelope confront each other. By contrast, the scene of Melian Dialogue in Thucydides Book 5 provides an illustration of the situation in which each party is determined to destroy the other's claim.
        Recent studies on Greek law have stressed context, discourse and structure for settling disputes rather than focussing on (written and unwrit- ten) law. Indeed, it is said that Greek rhetoric contributes to magnifying the

Process of Building the Land Succession Law System in the Early Meiji Period
by Akihisa FUJIWARA
+key words : early Meiji period, land succession, land certificate, househead, procedure of transferring landownership

        The creation of the land succession law system before the first Japanese Civil Code of l890, which did not come into force after a long controversy, started from the Great Council of State Decree No. l53 of 1875. This Decree introduced two kinds of legal formalities of transferring land- ownership in the succession to a house. On the one hand, in the succession to a house at the retirement from the position of househead, landownership was transferred to the heir by means of renewing the land certificate. To this succession should be applied the Great Council of State Decree No. 106 of 1875, which prescribed the requisite for transferring landownership in the sales and alienations. The land certificate was to give a conclusive evi- dence of landownership to its holder. On the other hand, in the succession to a house at the death of househead, when the land certificate was not renewed within six months after succession, the heir should be fined fivefold seal tax to the land certificate. It was assumed that landownership could be inevitably transferred to the heir in the succession to a house at the death of househead.
        The Ministry of Justice proposed transferring landownership, without renewing the land certificate, even in the succession to a house at the retirement of househead, and criticized severely the distinction between two legal formalities of the Decree No. 153 of 1875. Nevertheless, the Great Council of State found a legitimate reason to transfer landownership by means of renewing the land certificate in the succession to a house at the retirement of househead, on the authority of "donation entre vifs" of the French Civil Code. The Japanese translation of the French Civil Code by Mitsukuri Rinsh8 was published in 1875. Thus the Great Council of State positively rejected the proposal of the Ministry of Justice.
        The Decrees Nos. 106 and 153 of 1875 were repealed by the land sales and alienations Law of 1880. This new Law povided that the land certificate should be renewed when the heir obtained landownership in the succes sion to a house at the death of househead or to property at the death of the members of family, but the heir would be fined if the land certificate was not renewed within six months after succession. It also provided that the lf equisite for transferring landownership in the sales was to register a document at the town or village headman office.
        But it was not long before it was found out that this Law of 1880 had held three complicated problems, for which there was no legislative provision The Great Council of State came to resolve successively these problems until 1883 as follows. First, the requisite for transferring landownership in the succession to a house at the retirement of househead was to renew the land certificate. Second, the requisite for transferring landownership in the legacy was to register a document at the town or village headman office. Third, the fine in the expiration of term for renewing the land certificate could be applied to the legacy' with the heavy responsibil ities of househead.

A Study of the Mo-ri's Method of Dealing with Fighting between Vassals
by Keiichi KONO
+ key words : Sengoku-daimyo, Mori, Kenka-ryoseibai-ho, Kachu-control, self-help

        Kenka-ryoseibai-ho (laws relating to a conflict or fight in which both parties are to blame) are one of the most prominent and important laws in Japanese legal history, and there have been the subject of many preceding researches. However, the purpose and the background of these laws were never clear in those researches, so I think it is necessary to examine them seriously. The aim of this article is to examine in more detail the process and purpose of the laws dealing with conflict and fighting established by the Mo-n' clan (one of the Sengoku-daimyo).
        After purging the lnoue clan (one of their vassals) , in 1550 the Mori clan carried out a policy which gave them broad powers to prohibit any other their vassals from giving assistance to any other vassals who were at figiting. In 1572, they enacted a law that took account of the background and the actual details of the fight. Moreover, he prohibited fighting itself and established Kenka-ryoseibai-ho, which was based on their belief that "Hatio" (order) must come before the claims of vassals.
        In conclusion, however, I cannot necessarily assert that these Kenka-ryoseibai-ho became general laws as a solution to the problem of vassals' fighting, because the Mori clan had enacted these laws only at times when they were necessary' for example during the periods of war. Furthermore, it may be necessary to reexamine the common belief that Kenka-ryoseibai-ho came into common use for the mediation of fighting in the early modern period.

The Marriage of Daimyo : A Discussion on the Purpose of the Encouragement Acts for the Marriage Issued in 1724 and 1763
by Tomoko INAGAKI
+ key words : Daimyo, status, marriage, Buke syohatto, concubine

        I have studied about the each purpose of the two Encouragement Acts for the Marriage issued in 1724 and 1763 by tracing back to the Laws for the Military Houses ("Buke shohatto") restricting the range of social status of Daimyo's partner in life.
        The Act of 1724 recognizes with some reservations that Daimyo takes a concubine as his wife, and the Act of 1763 permits the free remarriage though the first marriage is restrained strictly in the marriage range by "Buke shohatto".
        The system of the hostage and "Sankin kotai" is the basic policy of Tokugawa Shogunate in order to control the Daimyos.
        It seems that the Act of 1724 aims at reinforcing the hostage system, I whereas shortening the stay in Edo under "Sankin kotai" system.
        However, as a result of my research on the actual conditions, there are no documents or records showing that Daimyo actually took a concubine as hiswife.
        This means that in this period the institution of social position is more important than the new hostage system.
        It seems that the purpose of the Act of 1763 is a relaxation of the restricted marriage range.
        This supposition is supported practically by the investigation on the actual conditions of the marriages of Daimyos.

Fu-zuo •œμ and Chi-xing ’oŒY in the Penal System that is composed of definite labour term during the Han ŠΏ Dynasty
by Hiroshi ISHIOKA
+ key words : The Han Dynasty, The labour penalty, outlying region,colony, amnesty

        The purpose of this paper is to clarify the position of Fu-zuo and Chi -xing in the penal system of the Han Dynasty. Generally, Fu-zuo is considered as a slight punishment, and Chi-xing is considered as prisoners whose punishments are commuted because of their aristocratic rank- But I conclude that Fu-zuo and Chi-xing are the names of punishment which is commuted to the lower by the amnesty.
        After the change of the labour penal system in Wen-Ti •Ά’ι in 167 BC, when an amnesty was granted, the prisoners being condemned to death were commutated to the labour penalty, and the prisoners being imposed a labour penalty were cut down their term of imprisonment. Such prisoners were called Fu-zuo or Chi-xing. A lot of them were commanderred to the outlying region of North and used as soldiers and farmers till the maturity of their term. But after maturity, they could enter in the family register with their families at the front prefecture.
        Besides, when an amnesty was granted, some Chi-xing were transfered to the studio in a capital that was called Zuo-Xiao ΆZ. They were cut down their term and at work there.
        In the Han's penal system, punishments were divided into two groups. one group consisted of death punishment and labour punishment. These two punishments were the main of penal system. And another group consisted of Chi-xing. It was, so to speak, to reserve labour and colony. So in case of need, it was extracted from regular prisoners by an amnesty.

Juridical Assizes (Shenlu R˜^ ) during the Ming Dynasty : Or another View on the Autumn Assizes (Qiushen HR ) in the Qing through the Tradition of "offense-Title-Lists" as Legal Statute (zuimingli ί–Ό—α )
by Arnd HAFNER
+key words : Juridical Assizes, Autumn Assizes, title of offense, circumustance, legal argument

        The terms applied in Autumn Assizes (as 'qingzhen' ξ^, 'kejin' ‰Βαΰ.) give the whole institution a very particularistic flair. Seemingly, every case will be considered with both on its own merits and for the sake of more flexible judgment than the strict rule of law could allow. In other words, Autumn Assizes appear rather to be the embodiment of the emperor's mercy than a general legal institution.
        A view on Juridical Assizes during the Ming Dynasty, where the framework of Autumn Assizes had been formed, gives a completely differ:_Tnt Picture. Juridical Assizes are a place of legal interpretation. The interpretation of law seen in Ming Assizes is sometimes creative but never particularistic or. in any sense nonlegal. This paper tries to put light on the intrinsic rationality of material law applied in Ming Assizes.
        Traditional Chinese penology can be understood as a complex system of classification of cases. Classification of cases aims at balancing gravity of crime, strict equality of punishment for comparable crimes, and finally at uniformity of judical judgement. For this purpose Chinese law developed three legal concepts unknown in western jurisprudence, namely, title of offense (zuiming ί–Ό) , title of punishment (xingming ŒY–Ό) and various categor'ies of circumstances (e. g. qingzhen ξ^ qingyoukejin ξ—L‰Βαΰ).
       In principle, every criminal act should have a precise equivalent in law, viz.a title of offense. That means every tiny fact in a hypothetical criminal act leads to a different name of offense. If no appropriate title of offense is provided in existing laws, a new one will be defined by analogy (bifu ”䕍) and eventually added to the laws called li (—α). Because this kind of penology produces an unlimited number of titles of offense, a complex system of classification is indispensable. In the first round of classification, every legal norm which defines a title of offense attaches to it a title of punishment. Although these titles of punishment originally derived from actual penalties, they form only an ideal scale for measuring gravity of offenses. 'Death' (si Ž€) doesn't mean capital punishment, and a sentence to banishment not necessarily results in exile. Real punishment is decided according to the categories of circumstances. Therefore the huge number of titles of offense are classified into comprehensible groups of comparable circumstances. Assizes are the place where appropriateness of existing offense title is examined and new offense titles are defined and classified. In other words assizes mean creative interpretation of law or a kind of juridical legislation.
        This paper elucidates the complex system of classification by analyzing the categories of circumstances found in records of shilu (Žΐ˜^) concerning assizes throughout the Ming dynasty. Thereby a new way of understanding Autumn Assizes in a more rational sense is proposed.

Appeals to Roman Curia from England in the Twelfth Century : the Constitutions of Clarendon of 1164 and the Compromise of Avranshes of 1172 reconsidered
+ key words : Appeals to Roman Curia, Medieval England, Constitutions of Clarendon, Compromise of Avranches

        ln 1164, King Henry II defined the royal jurisdiction in written customs of the Kingdom, namely the Constitutions of Clarendon, the clause 8 of which prohibited appeals to Roman Curia from England without king's permission. Archbishop Thomas Becket of Canterbury and Pope Alexander III objected to it, which gave a beginning to a long conflict between the king on one side, and the archbishop with the pope on the other ; a conflict between regnum and sacerdotium. In 1172 both parties came to a compro- mise at Avranshes, where as it has been generally believed, Henry II promised 'free appeals to Roman Curia' by renouncing the clause 8 of the Constitutions of Clarendon.
        However, if one takes a closer look at the texts, one can notice that the clause 8 of the Constitutions of Clarendon does not completely prohibit appeals to Roman Curia, and on the other hand, the Compromise of Avranches does not permit 'free appeals to Roman Curia' unrestrictedly. Moreover, upon further analysis of actual cases of appeals to Roman Curia from England, one can see that there were several instances in which the king's permission, consent or license were requested. Therefore, one can say that both the clause 8 of the Constitutions of Clarendon and the Compromise of Avranshes declared 'a system of king's permissions about appeals to Roman Curia from England'. Nevertheless, the latter is not a simple re-declaration of the former, due to the fact that the Constitutions of 1169, which was a supplement to the Constitutions of Clar.endon, explicitly prohibited any appeals to Roman Curia. Therefore, the Compromise of Avranches of 1172 renounced the Constitutions of 1169, and rejntroduced the former 'system of king's permission about appeals to Roman Curia from England' as stated in the Constitutions of Clarendon.

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