Calder writes that the As.l in the present form was "the end-product
of a lengthy period of development, involving accumulation of basic materials, successive redaction," and so on, before it was attributed to al-
Shaybani, one of the founders of the Hanafi school of law, as was usually
the case with juristic texts dating from the third/ninth century.
Hallaq, who extensively examined works of legal sciences (ilm usul al-fiqh), remarked that the jurists active in the ninth century often attributed
their own opinions, which they developed on the basis of those
of the founders of their schools, to the founders themselves, with the
result that their opinions were blended with those of the founders in an
indistinguishable way. However, neither Calder nor Hallaq clarifies how
and when the jurists of that period began to blend their opinions with
those of the founders of their school.
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This articles seeks to shed light on the process by which such blending
of legal doctrine was undertaken by analyzing a manuscript of "the
book of locatio" of al-Shaybani's Asl, some chapters of which appear to
reflect the first phase of editing that led eventually to the final version
of the Asl. My contention is that these chapters point to at least three
stages of organic growth of the text.
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(1) Some chapters consist uniquely of the original Asl, i.e. the statements of al-ShaybaniD
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(2) In the next stage the pupils of al-Shaybani added to the original
text new materials, which they put in a detached text. It is worth remarking
that they tried to distinguish these new materials, which they
deduced mostly from the doctrine of the founders by way of systematic
reasoning (qiyas), from the latter's doctrine by using the phrase like
"according to qiyas from the thesis of Abu Hanifa, Abu Yusuf, and al-Shaybani."
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(3) In the third stage his pupils or the following generation(s) incorporated
into the original text the materials produced during the second
stage and their own materials. This stage ended toward the end of the
ninth century.
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The transition from the second stage to the third stage may point to
the general attitude of the Hanafi jurists of that period to regard the
totality of the founders' doctrine and that which derived from it as the
Hanafi doctrine, rather than that of Abu Hanifa and/or his immediate
pupils.
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The purpose of this study is to make clear the historical meaning of
the reformation principles of the Administrative Litigation LawiGyouseisaibankaiseikouryouj
and the role of the Court of Administrative
Litigation which had great influence upon its decision.
Most former researches which dealt with the history of administrative
litigation system in modern Japan have aimed to elucidate the features
of Meiji National System through this system. Therefore, they
have centralized their interest on the enactment process of the Administrative
Litigation Law (Gyouseisaibanhou). Moreover, many of such
researches have regarded the Court of Administrative Litigationigyouseisaibanshoj
as ga past relich because administrative litigation system
was changed dramatically through the enforcement of the Constitution
of Japan (1947).
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But, I place a special emphasis on the fact that the reform bill of the
Administrative Litigation Law (Gyouseisoshouhouan) was mentioned as
one of the basic materials at the time of the enactment on the Act on
Special Provisions of Administrative Case Litigation (Gyouseijikenso-
shoutokureihou) and the Administrative Case Litigation Law (Gyouseijikensoshouhou)
.Therefore, this study aims to elucidate the content and
the historical meaning of the reformation principles of the Administrative
Litigation Law that underlaid the reform bill of the Administrative
Litigation Law in order to open up a new field in the history of administrative
litigation system in modern Japan. In addition, this study takes
notice of the role of the Court of the Administrative Litigation for its
decision and analyzes the background that that kind of reformation conception
was created at the Court of Administrative Litigation.
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As a result, this study makes clear the fact that the Court of Administrative
Litigation requested the independence from the other administrative
bureaucracy and the above\mentioned reformation conception
was created in such movement. And, even fortunately, the reformation
conception of the Court of Administrative Litigation was supported from
the citizen who demanded the democratization of political system, furthermore
obtained the cooperation of attorneys and jurists, and finally
reached the completion of the reformation principles of the Administrative
Litigation Law.
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But the other administrative bureaucracy strongly opposed the reformation
principles of the Administrative Litigation Law that designated
the right relief and the administrative control, because it was thought
that the conception of the reformation principles of the Administrative
Litigation Law became an obstacle to the new policy of national integration
(Fusenchianijihoutaisei) which the Department of the Interior
planed.
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This paper is trying to do the comparative analysis between two
Eizenryo ; in Japan and Tang. This consideration is done by the comparison
of the chapter provided about the construction and manual industry
through examination of Tianshengling. The Eizenryo provided the
important procedures especially in the restored 3rd, 4th, 12th and 13th articles.
Then, the comparative analysis is tried on the restoration of
Tang's Eizenryo, and comparison with Japanese that.
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It is clear that the restoration 3rd and 4th articles provided the principle
of report to Shoshosho ®È. And the restoration 12th and 13th articles
provided the procedure of report and obtaining permission about labor
force, building, manufacture and repair in the capital and provinces.
The report of those items, is specified over many times in Tang's system.
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As known, the missing pieces of the restoration 3rd are quoted in
Senkoritstu ¡»¥of gToritsusogi ¥`ch, this article is in order to
avoid military danger. That is, we should understand that Eizenryo were
closely concerned with the both sides of the financial and military.
As opposed to such a Tang's system, it is thought that the principle
of the report of work force for all the cases did not exist in Japanese
Eizenryo. And the procedure in Tang's Eizenryo which obtains permis-
sion after report is deleted in Japanese. This modification was from difference
of the fiscal structure. It depends on following reason in the difference
of fiscal structure. Tang's fiscal decision system was the feature
of concentrated organization. On the other hand, Japanese fiscal
decision system was the feature of decentralized organization. Especially,
in case of the building, manufacture and repair in the provinces,
this report was not provided in Japanese system, as Tang' system was
provided. In Japan, only procedure of post facto report is made.
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Thus it is understandable that Japanese system was adapting to the
specified feature of fiscal structure. Although a large scale modification
is not found, it is thought that the reception based on a compilation plan
of Japan took place.
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Als Privileg des Reichsfürstenstandes im Hoch- und Spätmittelalter
ist das Vorrecht zu nennen, dass ein Fürst vor dem Gericht im Herrscherhof
nur von den Fürsten als seinen Standesgenossen geurteilt werden
sollte. Dieses sogenannte Fürstengericht untersucht der vorleigende Aufsatz
anhand der Urkunden gründlich und er bemüht sich damit die Bedeutung
des Fürstenstandes in der Entwicklung der deutschen Reichsverfassung
zu klären. Die Teilnahmen und Urteilsfindungen der Fürsten
häuften sich als Gerichtspraxis in der ersten Hälfte des 13. Jahrhunderts,
vor allem von den 1210er bis zu den 1230er Jahren. Nachdem
diese Praxis einmal unterbrochen wurde, erschien sie in der zweiten
Hälfte des 14. Jahrhunderts unter Karl IV. wieder, und zwar in der reduzierten
Form mit dem kurfürstlichen Kern. Aber dieser zweite Aufschwung
neigte am Ende des 14. Jahrhunderts zu lähmen. Im 15. Jahrhundert
begannen dann die anderen Fürsten als Kurfürsten die Zusammensetzung
und das Verfahren des Fürstengerichts juristisch zu erörtern
und das führte zu der Etablierung des Fürstengerichts im strengeren
Sinne. Aus dem hier geklärten Verlauf ist zu zeigen, dass der
Reichsfürstenstand nach seiner Abschliessung erst sehr spät zur Reife
kam und dass die deutsche Reichsverfassung sich vom Hoch- zum Spätmittelalter
noch nach langem Hin und Her entwickelte.
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In contrast to "actio", the interdicts in the ancient Roman Law are
considered to be administrative, but in the some recent trends of the
research on the interdicts, one is toward the regulations or rules as an
administrative or governmental action, referring the interdicts as material,
on the basis of the archeological and historical results which were
gained not from the centralistic view of history but from the regional
one.
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On a parallel with the Roman Law study itself, in which the jurisprudence
and the historical studies intertwine, this trend consists of two
kinds of research ; one clarifies the contents and the procedure of the
protection by interdicts, and another analyses the situation of Roman
administration with the intention of studying legal history. Therefore,
by assimilating the results of various sciences related to legal history,
the prospects of the research on the interdicts as to new issues and
methods would be good.
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