Legal History Review vol.67 (2017)
Summaries of Articles
A theory of parental authority by Shigeto Hozumi
By Nana OZAWA

Key words: Shigeto Hozumi, Taneaki Hara, the Child Abuse Prevention Act of 1933, Social
Bureau of Home Ministry, the Association for Child Protection, parental authority, parental
authority as a public duty, the interests of the child

  From the Taisho period through to the early Showa period, a variety of new paradigms came to the forefront in the legal science. One of these was the concept of social jurisprudence (Shakaigakuteki horitsugaku), which has greatly influenced the methodologies in modern jurisprudence. A key figure behind this concept was Shigeto Hozumi, an expert in Family Law and a professor in the Faculty of Law at Tokyo Imperial University. He was also a member of the committee aimed at amending the Civil Code (Rinji hosei shingikai), and involved in a variety of other social welfare projects. In order to understand him, it is necessary to look at more than just his publications and strive to also take into account both his legislative and his social welfare activities. It is also necessary to examine the kinds of people with whom he worked. Only by gathering and synthesizing this information is one able to understand what he actually thought.

  Based on the aforementioned assumptions, this paper focuses on Hozumi’s activities in establishing the Child Abuse Prevention Act of 1933. The start point of his activities was a contact with a famous social welfare worker by the name of Taneaki Hara. As Hara was an acquaintance of Hozumi’s father, Hozumi had known him since childhood, and this contact lead to Hozumi’s interest in social welfare projects. Due to his interest, Hozumi cooperated with Hara in creating the Child Abuse Prevention Act. He later took over a part of Hara’s duties and even participated in creating drafts used in the process of establishing the act.

  Hozumi’s particularly important contribution in this work was the creation of a new theory of parental authority. An essential aspect in preventing child abuse is restricting parental authority, but at the time, it was questioned whether or not it would be possible to enact these types of restrictions through legislation. The element used at this point in order to dispel this doubt and enact a restriction on parental authority for the benefit of children was Hozumi’s newly devised theory of parental authority. His theory stipulated that parents shall bear an obligation to the nation to raise children properly, and at first glance, this theory appears conservative and designed to uphold Japan’s traditional family system. However, when taking into account all of Hozumi’s activities leading up to the creation of his theory, it could be considered to have been designed in order to incrementally improve the environments in which children live. As can be seen through this example, understanding Shigeto Hozumi requires assessing his theories not just through his publications but also within the context of all of his activities.

Legal Study on Various Unions in Peasant Novels Written by Hirata Koroku
By Tamao YURIMATU

Key words : Peasant Literature, Industrial Union, Agricultural Union, Peasant Union

  Japanese peasant literature became well-known in the end of the Meiji period. The writers described the daily life of peasants who suffered from poverty and demand of landlords. This type of novels was influenced by proletarian literature in the beginning of the Showa period. Thus, the resistance movement created by peasants like the establishment of peasant union or the peasant dispute was featured. The novel titled “The Captured Land” (1933-1934) written by Hirata Koroku is one of these novels. The author was a primary teacher in Aomori Prefecture from the end of the Taisho period to the beginning of the Showa period. His novel was based on the experience of that time. In this novel, he insisted that peasants kept an industrial union at a distance and desired to establish a peasant union for their profits. This paper tried to examine various unions described in his peasant novels and clarify how to operate the union legal systems in farm villages.

  At that time, Japanese government adopted a policy of having all peasants under the industrial union’s control. In 1932 the industrial union act was revised to make all peasants join the industrial union. However, in the northeast region of Japan many industrial unions fell into financial difficulties due to the economic stagnation and the bad harvest. Therefore, in the novel Hirata insisted that most peasants gave up making a profit by using the industrial unions. This novel suggested that the policy of having all peasants under the government’s control was not achieved smoothly.

  Meanwhile, this novel showed that a part of peasants attempted to establish a peasant union to ensure profits. This story has a sad ending in failure of the attempt due to interferences by landlords and government officials. The author didn’t refer to the mediation in a peasant dispute as an alternative plan, although he insisted on the necessity of the establishment of the peasant union. However, other part of peasants took objection to the establishment considering the relationship with the landlords. The novel showed that the peasants were divided in their opinion.

  Thereafter, most of the peasants became controlled by the industrial unions during the decade started from 1935. Meanwhile, the peasant unions lost their influence due to the national policy. Namely, Hirata’s peasant novels showed the transient social conditions from the period of economic stagnation to the period of statism.

Between the Banner Government Office and the Countryside:
Social Structure and Judicial Practices in the Otog Banner of Qing Mongolia
By Khohchahar E. Chuluu

Keywords: Qing Mongolia, Otog Banner, Social Structure, Administration of Justice

  Although the “banner-league” system was introduced into Qing-Dynasty Mongolia (1635‒1911), historical and regional diversities remained in Mongolian society. This paper explores the social structure and judicial practices of the Otog Banner from Qing Mongolia, with a focus on the period from the mid nineteenth to the early twentieth century.

  This paper first examines the social structure of the Otog Banner, focusing on administrative organization, social class, and the status system. In the Otog Banner, the banner chief and the banner government office together functioned as the central government authority, where officials worked in two-month shifts with three groups. Various officials resided in the countryside, dealing with matters that occurred in rural areas. The status of nobles remained and the nobles exercised power over commoners.

  In the second part, this paper analyzes cases involving divorce, disputes over a domestic animal, illegal arrest, and suicide. These cases reveal that civil disputes tended to be resolved locally by officials in the countryside, while criminal cases tended to be judged at the central government office. However, not all civil disputes were dealt with through official trials, but some were handled by arbitration or mediation in the countryside.

  The third part of the paper is dedicated to an analysis of the procedures of court trials in both the countryside and the banner government office, and to the problems associated with the justice system of the Otog Banner at the time. To reorganize the existing judicial system, the league issued a regulation which stated that first, a suit must be submitted initially to the captain, to whom the plaintiff belonged. If the captain could not handle the case, he could report the case to his senior officer, the lieutenant colonel, who would then report the case to the banner vice-commander, his superior. In this way, a case would finally reach the banner government office; and second, the regulation prohibited those nobles and officials who were not granted with judicial authority from judging cases in the countryside.

  The conclusion highlights the specific characteristics of the social structure and judicial practices in the Otog Banner by comparing the Otog Banner with the Alasha Banner and the Kharachin Right Banner.

Eine Studie „Winkelschreiber“ in Cisleithanien im Anfang des 20.
Jahrhunderts: Anhand der Akten über „Agentenwesen Winkelschreiber“ des k.k. Justizministeriums
by Rieko UEDA

Keywords: Winkelschreiber, öffentliche Agentie, Akten des k.k. Justizministeriums, Advokaten, Notaren, Cisleithanien,

  Die vorliegende Abhandlung versucht, anhand der Einsichtsakten des k. k. Justizministeriums, einen Überblick über die Rechtsdienstleistungen durch die „Winkelschreiber“ am Anfang 20. Jh., im Gebiet von Cisleithanien, sog. Österreich-Ungarns „österreichische Hälfte“, zu geben.

  Als Winkelschreiber wird heute jene Person bezeichnet, die, ohne dazu befugt zu sein, gewerbsmäßig Eingaben verfasst, Parteien vertritt oder Rechtsauskünfte erteilt. Verhalten dieser Art bildet ein strafbares Vergehen, das je nach Tätigkeitsbereich des Winkelschreibers entweder von den Gerichten oder den Verwaltungsbehörden geahndet wird. Neben der Modernisierung des Advokatenwesens sowie des Notariatswesens im 19. Jh. wurde in Österreich ein provisorisches Agentenwesen „öffentliche Agentie“ durch ein Hofkanzleidekret 1833 gegründet, welches den berechtigten Agenten die Befugnis geben, sich zu allen „durch die Gesetze anderen Personen nicht vorbehaltenen Geschäften“ anzubieten und sie zu führen, Geschäftskanzleien und Auskunftsbureaus zu eröffnen, und dafür Gebühren von den Parteien zu nehmen.

  Nach der Entstehung der Winkelschreiberordnung (1857), Advokatenordnung (1868), und auch Notariatsordnung (1871), und der Vermehrung der Zahl der Advokaten und Notare folgten die Konzessionen um die Erteilung einer öffentlichen Agentie bis zum Ende der Monarchie.

  Die Analyse von einzelnen Gesuchen macht klar, erstens, daß die Umfelder der einzelnen Gesucher verschieden waren: von Halbgelehrten Jurastudenten bis zum Gastwirt, aber vor allem pensionierte Beamten und Offiziere. Viele Gesucher sahen nicht so diffamierend aus, vielmehr geeignet für den „lokalen Bedarf“. Zweitens wiesen sowohl die ländlichen, als auch zentralen Behörden, vor allem das Justizministerium, die Ansuchen um öffentliche Agentie ab, um damit einerseits die Interessen der Advokaten und Notare zu schützen. Andererseits erteilten sie die Konzessionen nach dem „lokalen Bedarf“, soweit sie die Befugnisse der Juristen nicht verletzten. Ein gutes Beispiel waren die Konzessionen um die Auskunftsstelle für Militärangelegenheiten.

  Am Ende dieses Beitrags wurde betont, daß lokaler Bedarf an Winkelschreibern in Cisleithanien gewiß vorhanden war.

Symposium: The Governmental System and Gender in the Yamato Seiken (Yamato Regime) in the Keyhole-Shaped-Tumulus Era: The First Collaborative and Comparative Study of the "Order of Dominance by Personal and Hierarchical Stratification" between Legal Historians and Archeologists
by Takeshi MIZUBAYASHI, Kazuo HIROE, Akira SEIKE, Tetsuya OHKUBO, Akiko YOSHIE, Akira MOMIYAMA, Masaki TAGUCHI

Key words: Yamato Seiken, keyhole-shaped-tumulus, governmental system, gender, Archeology

  The Yamato Seiken (the Yamato Regime) existed from the 3rd to the 6th century typically known as the Keyhole-shaped-tumulus era. During this period, islands and regions of Japan were united as a nation/state for the first time. This symposium aimed to investigate the characteristics of the governmental system and gender in the Yamato Seiken by collaborating with archeologists and comparing the governmental systems of Yamato Seiken and other countries. As this was the first collaborative research between legal historians specializing in the study of national governmental systems, and archeologists, the symposium designed to develop a new image of history.

  Kazuo Hirose (Japanese Archeology) presented his conception of the "keyhole-shaped-tumulus nation" or the national governmental system of Yamato Seiken, which differs from the standard archeological view points and other existing writings on the topic. Akira Seike's (Japanese Archeology) talk, based on his latest archeological research on gender, discussed the prevalence of female rulers and empresses in the Yayoi/ Tumulus era. By examining the works of Hiroe and Seike, Takeshi Mizubayashi (Comparative Legal History) argued that the conventional understanding of the history of national governmental system and gender in the relevant era should be changed. Comments on the three presentations were made by the following four persons: Tetsuya Ohkubo (Japanese Archeology), Akiko Yoshie (Ancient Japanese History of Women), Akira Momiyama (Chinese Ancient History), Masaki Taguchi (German Legal History).

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