Legal Hitory Review vol.57 (2007)
Summaries of Articles

On Max Weber's Talk on Problems of the Sociology of the State (1917)
―The Sociology of the State and Four Types of Legitimate Domination―
by Makoto SANO
key words : Max Weber, Sociology of the State, Four Types of Legitimate Domination, Non-Legitimate Domination, Plebiscitarian Democracy
        On October 25, 1917, Max Weber gave a talk in Vienna on problems of the sociology of the state (Probleme der Staatssoziologie). At this time he pointed out a fourth type of domination that has not received so much attention in Japan. As is generally known, Max Weber distinguished three pure types of legitimate domination or authority, namely legal, traditional, and charismatic domination. In legal domination, legitimacy rests on a belief in the validity of legal statute and functional competence based on formally-rationally enacted rules. In traditional domination, legitimacy rests on the authority of the "eternal yesterday", the sanctity of the ancient habits, and the prescriptive order of things. And in charismatic domination, legitimacy rests on the authority of the extraordinary and personal gift of grace (charisma) and the values revealed by the charismatic leader. But unlike other three authoritarian types, a fourth type of legitimate domination is based on "the will of the ruled". In other words, it is a democratic legitimacy which is derived from "the will of antiauthoritarian people". There is the only original account of the talk in Neue Freie Presse (Vienna), No. 19102, October 26, 1917.
        Why did Max Weber point out such a fourth type of domination or legitimacy in Vienna? Why didn't Max Weber argue it in his texts on and after October 26, 1917?
        The purpose of this paper is to clarify the primary grounds by investigating minutely the original account of his talk on problems of the sociology of the state, three pure types of legitimate domination, and a fourth type of legitimate domination.

Shomu-sata of Muromachi-Shogunate and its Change
by Toru YAMADA
Ukey words : muromachi-Shogunate(室町幕府), Shomu-sata(所務沙汰), Hikituke(引付), Hyoujou(評定), Gozen-sata(御前沙汰), Jinsei-sata(仁政沙汰)

        In this paper I aim to consider whether Muromachi-Shogunate(1336-1573) inherited Shomu-sata(trial dealing with territorial troubles among lords) system from Kamakura-Shogunate(1185-1333), and to clarify the characteristic of Shomu-sata of Muromachi-Shogunate.
        As a result of analysis, I point out folllowing facts. Until the third quarter of 14th century Muromachi-Shogunate managed Shomu-sata in organized insutitutions, such as Hyoujou, Hikitsuke, Gozen-sata, and Jinsei-sata, like Kamakura-Shogunate. But in the last quarter of 14th century these institutions was abolished, and Muromachi-dono(the head position of Muromachi-Shogunate inherited by Ashikaga family) came to deal with appeals about territorial troubles individually. Therefore I conclude that this era was turning point for Shomu-sata of Muromachi-Shogunate.
        Because Shomu-sata insutitutions were organized in order to deal a great number of appeals of lords, the abolition of them meant abandoning many appeals of weak lords. By this change, Shomu-sata management of Muromachi-Shogunate changed to individual and partial.
        One reason for this change was that the Muromachi-Shogunate couldn't manage all appeals during and after the war. Another reason was that individual management was necessary for Muromachi-Shogunate to re-organize lords and their territories.

Kamigata Regimen of the Edo Bakufu in the Later Part of the Early Modern Period: A Study of Oshioki Reiruishu
by Takashi OGURA
Ukey words : Oometsuke, Kamigata(上方), Kujigata Osadamegaki(公事方御定書), Oshioki Reiruishu(御仕置例類集), Shoshidai(所司代),Osakajodai(大坂城代),Kyoto Machi Bugyo(京都町奉行),Osaka Machi Bugyo(大坂町奉行), Roju(老中),Hyojosho(評定所), Punishment,Inquiry and Instruction, Administrative and Judicial practice

        Kamigata (Kansai) area was once a stronghold for Edo Bakufu equivalent to Kanto. Oshioki Reiruishu, together with Kujigata Osadamegaki, was one of the most important legal sources for Bakufu in the later part of the early modern period. In this paper the Kamigata Regimen by Bakufu was studied emphasizing issues relating to punishment, by primarily examining Oshioki Reiruishu. The study specifically focused on the process and authority of administrative and judicial practices handled by the Bakufu officials in Kamigata as well as between Kamigata and Edo.
        The Bakufu officials in Kamigata carried out both administrative and judicial practices in an integrated and continuous manner by following the same process of inquiries and instructions. They individually solved already existing issues while setting and changing rules and systems to generally solve issues for future occasions.
        Inquiries by the Bakufu officials in Kamigata involved three forms: From Kamigata Bugyo to Shoshidai and Osakajodai, from Shoshidai and Osakajodai to Roju, and from Kamigata Bugyo to Roju. Shoshidai and Osakajodai were involved in the mediation of the inquiries from Kamigata Bugyo to Roju as well as the instructions from Roju to Kamigata Bugyo.
        In response to inquiries from Kamigata Bugyo, Shoshidai and Osakajodai made decisions and gave instructions on their own using the documents formatted in the same way as the ones used by Roju. With this system, punishment and various other issues were resolved in Kamigata. In terms of punishment, the system that Kamigata Bugyo made inquiries and Shoshidai and Osakajodai gave instructions in return was established in Enkyo 1 (1744). In Tenmei 8 (1788), the range of punishment that allowed Shoshidai and Osakajodai to give instructions in response to Kamigata Bugyo's inquiries was considerably expanded.
        Kyoto Machi Bugyo and Osaka Machi Bugyo played a special role to perform investigation and deliberation on overall practices directed and handled by Shoshidai and Osakajodai. The roles played by Kyoto Machi Bugyo and Osaka Machi Bugyo to Shoshidai and Osakajodai was the same as the role played by Hyojosho to Roju. That is, the relationship between Shoshidai,Osakajodai and Kyoto Machi Bugyo,Osaka Machi Bugyo in Kamigata was similar to the one between Roju and Hyojosho in Edo.

A Legal Historical Study of the Administrative Litigation System and its Transition in Meiji National Polity
By Kiyotaka TOBITA
key words : Meiji National Polity, Administrative Litigation System, Administrative Power Leadership, Check of the Judicial Power, Administrative Litigation Law

        There are many studies in which many researchers mentioned what kind of role the Japanese administrative litigation system played in each times up to now. This study tries to newly investigate administrative litigation systems on the basis of legislative process and law interpretation.
        As for Japanese administrative litigation systems, this study examines how it was separated from the authority of the judicial court system and was incorporated in the administrative litigation court system at last by leadership of administrative power in Meiji national polity through legislation change process.
        The Japanese administrative litigation system started in the process of a judicial reform of Eto. Therefore, the administrative litigation system that the judicial power aimed at the first stage had strong contents of people relief. The first administrative litigation case was on the request of Onogumi to move from Kyoto to Tokyo.
        In this case, the jurisdiction was moved from Kyoto court to Ministry of Justice temporary court, and it was over when the restriction of MAKIMURA was untied by the special order and the influence of the political change of Meiji 6 year. In the next year of this case, the official regulation’s No.24 of Ministry of Justice was enforced.
        It was made public that the administrative litigation system belonged to the jurisdiction of the judicial court by this official regulation. However, as for the handling of administrative litigation, a judgment of the Japanese supreme organization: DAJOUKAN was always necessary. The government submitted a plan of regulation to the legislature in order to remove the check of the judicial power as the administrative litigation cases happened frequently after the enforcement of the above No.24. However, it was withdrawn at last because most of lawmakers objected to the official regulations plan. The government interfered in the judicial court which dealt with an administrative litigation case, by enforcing new laws and regulations slowly before long. In addition to it, the government strengthened the administrative function by the establishment of the examination research organization: SANJIIN or the establishment of Cabinet Legislation Bureau.
        In Meiji 23 year, the government succeeded in the establishment of administrative litigation court and law at last. I have tried to clarify the process and the actual situation in which the authority of the government secured the discretionary power through legislation change process of Japanese administrative litigation system in this study.

Birth of a new local police force : Creation of the new Maréchaussée in Haute-Normandie
Ukey words : France, maréchaussée, Normandie, Ancien Régime, justice, próvôt

        The maréchaussée, a rural police force, served both as a royal army, keeping order particulary in the countryside and on highways, and as a royal court (prévôt's court) judging without appeal cas prévôtaux. In March 1720, the royal government tried to reform the maréchaussée after abolishing almost its entire old organisation and reorganizing a new one. This paper examines how the new maréchaussée was established in Haute-Normandie by analyzing historical sources of the Prefectural Archives of Seine-Maritime (at Rouen) and the Historical Service of the Army (at Vincennes) from three points of view: recruitment of members, budgetary steps, and activities.
        The laws in March and April 1720 laid out its framework, thus the new maréchaussée was organized legally. However, all of the members were not recruited at the same time just after the reform. It was in March 1721 that all brigades made up the numbers. As for the budgetary steps of the maréchaussée, an ancient budgetary measure continued until 1720 and the new one was fixed in 1722 through a transitional one for 1721. Finally, it seems that 1720 was a transitional period for activities of prévôt's court and the brigades, and that the new maréchaussée began to function in earnest between the end of 1720 and the beginning of 1721. That is to say, the new maréchaussée, though it was formed legally in the spring of 1720, was established practically in 1721 in Haute-Normandie. We should pay attention to such an interval between laws and their application when we study an organisation.

Chinese legal history and the lineage: an overview of the scholarship of the last 50 years
by Kentaro MATSUBARA
Ukey words : lineage, incorporation, ancestral estate, historiography, anthropology, social theory

         Legal historians concerned with traditional Chinese society have been interested in the "lineage" or "descent group" for a number of reasons. To name but two, one is the understanding of how property rights were organised through descent, and the other is to work out how social organisation through these groups was related to the rule of the imperial state bureaucracy. The seminal works of Maurice Freedman that came out in the late 1950s formulated an influential picture that integrated answers to both lines of inquiry. Based on the idea of the "lineage village", where agnatic and territorial groupings coincided, Freedman's formulation singled out the lineage, brought together and asymmetrically segmented through the distribution of property rights, as a dominant social organisation in southeastern China. However, his arguments have been criticised both in terms of their descriptive accuracy and by way of theoretical challenges against his structural-functionalist assumptions. This paper looks into how new lines of inquiry concerning how the lineages /descent groups were opened in conjunction with these criticisms, and reviews the current state of the scholarship. Moreover, this paper combines this with the fruits of research into the Chinese lineage that come from Japanese and Chinese scholarship, both of which have been inspired by Freedman on one hand but have also gone thorugh unique processes of development on the other. Through such an exercise, this paper tries to show new directions of inquiry into the significance of the Chinese lineage, that engage with some fundamental issues of incorporation, local social organisation and property rights.