Legal History Review vol.66 (2016)
Summaries of Articles

Suspension of the Death Penalty in Heian Period
by Yasuo UMEDA
Keywords: Heian Period, Suspension of the Death Penalty, Vengeful Spirits, Defilement of Death, Changes in Imperial Authority
  No official executions were carried out in Japan for over 300 years during the Heian period from the Kōnin era to the time of the Hōgen Rebellion. This fact has long been known, and has been taken up in many documents thus far. On the premise that this was not an abolition of the death penalty but a suspension, after examining the period and conditions pertaining to this suspension, this paper attempts to discuss the background and causes leading to such a phenomenon, and to explain the historical significance of this suspension in capital punishments.
  Various points have been made thus far regarding the background and causes of this suspension in capital punishments, all of which are understood to be factors. Among them a fear of vengeful spirits in particular has been most emphasized, and the author formerly subscribed to that idea. However, because there are cases in which execution was condoned even for serious crimes clearly committed by commoners not related to unreasonable deaths, a fear of vengeful spirits is not an adequate explanation. Also, such reasons were hardly discussed when resuming capital punishment, and there is even the opinion that in later aristocratic society executions were fundamentally avoided. This paper takes as its hypothesis the idea that executions were later carried out in aristocratic society and based on an analysis of the Go-Shirakawa Tennō Senmyō-an, defilement was seen as the greatest issue, and through the medium of defilement, examined its relationship with the situation pertaining to the Emperor and his court, and changes in imperial authority.
  The Go-Shirakawa Tennō Senmyō-an promulgated after the Hōgen Rebellion is a historical source that is often cited. This paper in particular focuses on the passage on the delay, due to the defilement of death, of the report made before the gods of the details of the rebellion and how it was subsequently handled. Defilement resulting by execution can be understood as a major issue. Defilement was systematized after the mid-ninth century, and was parallel to the process of purifying the emperor as high priest. The sanctioning of executions by the emperor gradually dropped off to avert the defilement of death, and the carrying out of executions was avoided to prevent the effects of such defilement on the court and palace.
  In this way, after a long hiatus capital punishment was resumed following the strife of the Hōgen Rebellion. This was not simply about the arising of the warrior families, but was also a major transformation in aristocratic society involving the court and emperor. At the point of the complete purification of the emperor as high priest, a new form of government was established, the cloistered government, and the retired emperor as a secular ruler exercised authority as the actual ruler. Moreover, as the concept of defilement became secularized, rarefied, and diffused, the earlier desire to avoid executions weakened. As a result, the emperor was able to preserve his purity, and the way was opened for the retired emperor to become involved in legal punishments and to sanction executions.
  The death penalty in Japan was suspended after the Kusuko Incident, and was resumed after the Hōgen Rebellion. Both were confrontations between a retired emperor and an emperor, and developed through a splitting of imperial authority. A suspension and resumption of the death penalty, it arose within the process of shifts in imperial authority, and was a unique phenomena.

The Revision of the Criminal Procedure Code and the “Zisu” System during the Nanjing decade
by Mariko KUBO
Keywords: Zisu system, Nanjing decade, Criminal Procedure Code, Private prosecution system
  An important agenda of Nationalist government in the 1930s was to reform the public prosecution system and the “zisu” (private prosecution) system in the process of revising the Criminal Procedure Code. This article analyzes the operation of the zisu system, clarifies the background of the revision of the Criminal Procedure Code during the Nanjing decade, and examines the meaning of the establishment of the zisu system in China in the first half of the twentieth century.
  Although the public prosecution system established in the late Qing and Republican China was often heavily criticized, public prosecutors played an important role in criminal cases. In the Republican period, most people with no legal knowledge were accustomed to the traditional practice common during the Qing dynasty. In the criminal cases of that time, litigants, helped by their lawyers, submitted petitions to the courts. This practice did not always observe the due process of law, but was a useful method to resolve cases quickly and keep order. Thus, the private prosecution system was prevalent in the criminal procedure after the 1920s. To abolish the extraterritoriality, Chinese officials and scholars who participated in a legislation reform referred to the prosecution systems implemented in modern western law, especially German criminal procedure law. The discussion on the criminal prosecution system of that time influenced the development of the zisu system. Finally, the zisu system that had the Chinese original characteristics was established in the new Criminal Procedure Code in 1935. This system accepted litigants’ prosecution broadly, operated legal practice under the modern western criminal procedure law, and strengthened the system of keeping order by the power of state. Thus, the Criminal Procedure Code comprised the public prosecution system and the private prosecution system. It can be said that Pre-modern Chinese litigious society where officials were closely related to the litigants and this helped to close cases quickly also influenced the establishment of the code.

Creation of the Reichshofrat in 1654
by Yamami SUZUKI
Keywords: Emperor, Imperial State, Reichshofrat, Reichskammergericht, Reichshofratsordnung(1654), Peace of Westphalia
  This paper clarifies the judicial order for all territories of the Holy Roman Empire rather than those existing in each state. In particular, it focuses on the imperial readership in it, centring on the Reichshofrat—one of the two supreme courts.
  Since the fall of the Nazi regime, when the Prussian school of history losing its authority, the fact that the institutions of the Empire worked to maintain order in early modern Germany has widely been accepted. Studies on the judicial systems prevailing under the Empire have been developed in the same context. Two supreme courts existed in the Empire during the early modern era: the Reichskammergericht under the Imperial State and the Reichshofrat under the direct control of Emperor. However, scholars have focused mainly on the Reichskammergericht; the Reichshofrat was ignored for a long time. It was suspected that the ruling of the Reichshofrat were manipulated by the Catholic prejudice by Emperors. Nevertheless, only recently have we realized that the Reichskammergericht and Reichshofrat operated complementarily. The premise of this paper is that, in order to have a better understanding of the judicial systems of the Holy Roman Empire in the early modern era, we should consider not only the Reichskammergericht but also the Reichshofrat.
  New facts concerning the Reichshofrat have been disclosed by recent studies, especially since the end of the Cold War, when German and Austrian law historians began to collaborate. Their investigations appear to fit the abovementioned historiography on the Holy Roman Empire, but this paper does not adopt any hasty judgements. Instead, it traces the historical process through which the Reichshofrat was established, analyses each of its clauses and articles and evaluates imperial power in it before articulating its general characteristics.
  According to my research, Emperor Ferdinand III (1637–1657) promulgated the Reichshofrat in 1654 without consulting any of his subjects. His subjects were not able to cooperate with each other even to the extent of protesting such a tyrannical behaviour due to the severe religio-political struggles continuing within the ranks of the Imperial Estate immediately after the end of the Thirty Years War (1618–1648). Thus, he successfully evaded almost all interventions from his subjects. In addition, Ferdinand III intentionally left obscure the rules for procedure and appointment to maximise his discretion and that of his commissaries. This might paradoxically have contributed to the flexible and effective organisation of the Reichshofrat compared with the Reichskammergericht, which was strictly regulated and paralysed by its own code. Consequently, the former may have been preferred by a wide range of people wanting swift and feasible settlements of their disputes, and it may have therefore contributed to the maintenance of order. Thus, it gradually came to be believed that the Emperor was a peacemaker for the people. Certainly, this topic still requires many more individual case studies.

Literature Review on Thai Legal History
Keywords: Revising un-equal treaties, The Three Great Seals Code, official historical view, foreign advisors, model laws
  Thailand is one of a few non-colonized countries in Asia like Japan. As like Japan did, Thailand also establish judicial system based on Western Laws to revise un-equal treaties concluded with the Great Powers including Japan.
  Under Thai history like this, studies about Thai Legal History has some characteristics. Firstly, Most Thai legal scholars are not interested in legal history. As a result of it, there are very few scholars whose majors are legal history.
  Secondly, studies about The Three Great Seals Code are main stream in conducting researches about traditional laws in Thailand. In studies about The Three Great Seals Code, two foreign scholars, namely Robert Lingat and Yoneo ISHII have very significant role.
  Thirdly, there are huge number of works about history of systems in Thailand from aspects of historical science, sociology, political science, gender studies and so on.
  Finally, research field that Thai legal scholars are interested in is a process of establishing judicial system based on western law after opening of the country to the world. Interestingly, studies that extremely insisted on influence of the German Civil Code in codification of the Civil and Commercial Code were criticized by recent studies that insisted on other countries influence.

Literature Review on Malaysian Legal History
Keywords: legal transplant, Islamic law, personal law, legal pluralism, legal orientalism
  Federation of Malaya became independent from U.K. in 1957, and it united with North Borneo (Saba), Sarawak, and Singapore in 1963 and named Federation of Malaysia (Less than two years later in 1965, Singapore was expelled from the federation). Although each state had been directly or indirectly under the British colonialism and English law had been transferred to all states, each state had never been united as a single polity until 1963.
  Malaysian legal history is generally divided into six periods: the pre-Malacca Sultanate, the Malacca Sultanate, the Portuguese in Malacca, Malacca under Dutch, British colonization, and post-independence (e.g.〔Sharifah Suhanah 2007〕〔Wan Arfah 2009〕〔Wu 2005〕)。Few discovered materials on the legal history prior to the Malacca Sultanate in around 1400 A.D. have made the scholarship to briefly describe on it: Hindu influence on later history such as the concept of kingship which was transformed the concept of the daulat during the Malacca Sultanate〔Sharifah Suhanah 2007: 2-4〕〔Wan Arfah 2009: 12, 13〕. The legal history from the Malacca Sultanate to the beginning of the British colonization has discussed primarily the Malay legal digests whose manuscripts had been collected by Europeans. In British colonial era, the British colonial officials had researched “indigenous laws” in Malaysia. Their research on “indigenous laws” among Malays focused on adat rather than Islamic law, and the analytical concept presented by Wilkinson, the democratic adat perpateh and the autocratic adat temenggong had been followed by many researches and colonial officials. The British colonization started at Penang in the late 18the century, the Britain governed directly the Straits Settlement, and indirectly Malay states, the North Borneo and Sarawak.
  After 1957, studies on Malaysian law conducted Hooker are distinguished. In 21st century, some legal scholars have discussed legal orientalism or post-colonialism in the legal history of “non-western world” including the Southeast Asia. In the global context of “rule of law”, the colonial experiences have been explored to identify how the processes and policies of the colonial enterprises affected the contemporary rule of law outcomes. The recent scholarship on the Malaysian legal history has discussed the processes of law-making under the colonization and their politics. It shows that one of the critical issues of discussion is methodology or approach to describe the legal history itself. This article, thus, explores mainly English literature relating to Malaysian legal history, discussing its subjects of and approaches.

Method and purpose of Indonesian legal history: From the perspective of historiography
by Yuzuru SHIMADA
Keywords: Indonesian law, legal history, socio-legal study, colonial law
  This paper tries reviewing major academic works on Indonesian legal history. To review various existing research, this paper applies the approach of historiography which focuses on how histories are discussed rather than what happened in history.
  The Indonesian legal history can be roughly divided into the pre-colonial, colonial and independence periods. The pre-colonial period leaves a legal legacy of customary law, which is called adat law in this area, and the law of Islam. The colonialization which started in the seventeenth century brought the European law. At the early period of colonialization, however, the Dutch East Company which governed Indonesia did not care about the law of this society. The Dutch government introduced the forced cultivation system to generate colonial profit in 1830. The government utilized the traditional power based on the customary law to maintain the cultivation system. Especially, the legal pluralism policy separating European people and indigenous people have a lasting impact until today. Then, in 1901, the Dutch government announced to give the opportunity for modern education for Indonesian elites. Dutch legal policy based on racial discrimination continued until the occupation by Japan in 1943. Indonesia declared its independence in 1945. After Independence, Indonesia experienced authoritarian rule until 1998.
  How do works on Indonesian legal history describe the histories above? At first, overviewing some works from the perspective of the area they cover (complete history of Indonesian law or focusing particular law field), then the paper reviews the methodologies and purposes of works on the Indonesian legal history.
  For the method, three methods are discussed. Firstly, the method which outlines the historical change of positive rules and legal institutions. Because the current Indonesian law depends on the Dutch scholarship, the most of the works of this method start their description from the time of colonialization. Secondly, the method which considers the legal system as a reflection of the colonial policy. Burns discussed how the Dutch economic policy and academic discourses affected the colonial legal policy. Finally, the method which analyses the relationship between the transformation of Indonesian society and legal system. Daniel Lev is the most influential researcher in this socio-legal method.
  For the purpose of legal history, in other words, "why is this history told?", this paper argues that works on Indonesian legal history can be categorized three types: Firstly, to establish the ground of Indonesian nationalism. Secondly, to pursue the root of problems of Indonesian law, especially the weak judiciary. Thirdly, to criticize the government manufactured image of "Indonesianess" which has been utilized to oppress oppositions.

Symposium: New Approaches for the Study of Legal History
  This Symposium takes up some new approaches for the investigation of legal history and probes into their possibilities. Yu-Lin Chiang treats mainly the pictures of Cheng-Po Chen and tries to read from them the legal situation and consciousness in Taiwan under the Japanese rule and after 1945. Asako Kuwahara researches into a work of Monzaemon Chikamatsu, “Hakata Kojoro Namimakura”, and presents through its reading the social structure and viewpoints on law in Tokugawa-Japan. Martin Avenarius investigates the reception of Roman law in the 19th century Russia and argues on potential of the outsider’s view to recognize the hidden characters of Roman law. The lectures in the Symposium are commented by Toshiharu Omuka, Yoko Kuroishi and Masahiro Hirata.