Law and the State in Traditional East Asia: Six Studies on the Sources of East Asian Law 9780824887469

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Asian Studies at Hawaii, No. 33

Law and the State in Traditional East Asia Six Studies on the Sources of East Asian Law

Edited by Brian E. McKnight

Asian Studies at Hawaii University of Hawaii U N I V E R S I T Y OF H A W A I I

PRESS

© 1987 University of Hawaii Press All rights reserved Manufactured in the United States of America Library of Congress Cataloging-in-Publication Data Law and the state in traditional East Asia. (Asian studies at Hawaii; no. 33) Bibliography: p. Includes index. 1. Law—East Asia—History and criticism— Congresses. I. McKnight, Brian E. II. Title. III. Series. DS3.A2A82 no. 33 950 s [349.5] 86-25123 ISBN 0-8248-0838-X (pbk.) 950 s [345]

Contents

Introduction

v

Social Order in Early Ming China: Some Norms Codified in the Hung-wu Period Edward L. Farmer

1

Protection of Women's Civil Rights in Traditional Vietnam: A Comparison of the Code of the Le Dynasty (1428-1788) with the Chinese Codes Ta Van Tai The Legal System of Japan at the End of the Kamakura Period from the Litigants' Point of View Carl Steenstrup From Statute to Precedent: An Introduction to Sung Law and Its Transformation Brian E. McKnight Edo Period Studies on T'ang, Ming, and Ch'ing Law Osamu Öba

37

73

111 132

The Neo-Confucian Revolution of Values in Early Yi Korea: Its Implications for Korean Legal Thought William Shaw

149

Contributors

173

Index

175

HI

Introduction BRIAN E.

MCKNIGHT

In August of 1978 a group of scholars gathered at the Center for East Asian Legal Studies of the Harvard Law School for a conference on "Law and the State in Traditional East Asia." The scholars themselves came from East Asia and Europe as well as from the United States, and presented papers which dealt not only with the Chinese tradition but also the legal traditions of other major East Asian states including Japan, Vietnam, and Korea. Given the diversity of scholarly interest involved, the papers presented dealt with a variety of topics, under the general rubric of law and the state. Philosophy, codification, law enforcement, judicial process, and foreign relations were all discussed in one or more papers. And yet all of the papers focused in differing ways on two main areas—the effects of real world constraints on law and its practice, and the sources from which the law was derived. Those papers which concerned themselves with the law in practice dealt with the Ch'ing dynasty. They will appear as a separate volume. In the papers which are concerned with the sources of law, the roles of custom, procedure, codification, borrowing, and imperial will in determining the shape of the law are all analyzed. The examples are drawn from Le dynasty Vietnam, Yi dynasty Korea, Kamakura Japan, and Tokugawa Japan, as well as from Sung and Ming China. Taken together they provide a suggestive overview of different ways in which law might be created in the traditional East Asian world. The first paper in this volume, Edward Farmer's study of the codification of norms under the Hung-wu Emperor, raises some broad questions about the nature of law, but does so through the study of specific legisla-

v

VI

INTRODUCTION

tion. By focusing on the role of the Ming founder in shaping the general legal framework of his times, Professor Farmer is able to reveal the critical importance of key individuals in promoting certain social ideals. As he recognizes, such ideals never correspond exactly with social practice, but they do tell us much about the attitudes of those who seek their enforcement and also about the society they are designed to shape. In the process of analyzing these documents, their origins, and their impact, Professor Farmer also provides succinct descriptions of the codes themselves, the Ming system of local control, and the relations between center and local regions. The three pieces of normative legislation described by Professor Farmer are the Imperial Ming Ancestral Instruction (Huang Ming tsuhsiin), the Great Ming Commandment (Ta Ming ling), and the Placard of People's Instructions (Chiao min pang-wen). These documents provided the people and officials with instructions governing the appropriate behavior to be expected from the descendants of Chu Yuan-chang, rules governing the practices of the six official boards and those under their jurisdictions, instructions for the management of village affairs by the elders, and warnings about a whole range of abuses. Professor Farmer seeks to analyze how these normative rules fit with the actual structure of local society and the ways in which these bodies of rules reflected elite understanding of the desirable social structure, as indicated by the categories of persons into which the population was divided. This problem, in turn, is linked with the nature of elite control over local society and with potential conflicts between the aims of the central authorities and the interests of local people. In describing these interrelationships between imperial ideals, local interests, and official aims, Professor Farmer illuminates not only the power of key individuals to influence the content of the law, but also the kinds of limitations on such individual power inherent in the social and political situation. In the second paper Ta Van Tai illustrates the role and power of custom as a source of law. In some respects Vietnam may rightly be called the smaller dragon, a state that modeled itself closely on its large neighbor to the north. But as Dr. Tai demonstrates, this borrowing of Chinese cultural elements could not, in practice, alter fundamental Vietnamese custom, which in important ways determined the substance of legal relations. Even when, as under the Nguyen dynasty, the formal legal code itself slavishly imitated its Chinese model, actual legal practice conformed to the native Vietnamese traditions embodied in the Le Code. Dr. Tai concentrates on this Le Code, since it portrays most clearly the underlying Vietnamese legal mores. In particular he focuses on one very striking way in which Vietnamese law differed from Chinese law—its treat-

INTRODUCTION

VII

ment of the civil rights of women. Beginning with a brief discussion of the special position of women in Le criminal law, Dr. Tai goes on to talk about the private rights of women and their protection from abuses by male relatives including the husband. Vietnamese women were in a better position than their Chinese counterparts when it came to divorce and were not denied the right to bring suit to enforce their rights. These discussions form a valuable backdrop to the major example used in the paper to illustrate the special position of Vietnamese women, their rights over property. Dr. Tai discusses rights to inheritance, including the inheritance of ancestral worship property, rights of settlement in the matrimonial estate, rights of management over the matrimonial estate during the husband's lifetime, and other facets of property law in which the Vietnamese woman's legal position was far superior to the legal position of women under Chinese law. The third paper, by Carl Steenstrup, does not focus explicitly on the sources of law, and yet, in describing the legal system of Japan at the end of the Kamakura period from the litigant's point of view, Dr. Steenstrup cannot help but elucidate the process by which substantive law was deposited in the interstices of procedure. Dr. Steenstrup begins by raising some very fundamental issues about the relationships that exist between legal systems and the social and political systems in which they are embedded. In brief, he argues that strong, centralized governments (of which the major dynasties of traditional China would be examples) tend to de-emphasize the difference between law and administration, and, insofar as they develop the law system, concentrate on criminal law. In weakly centralized systems, of which Kamakura Japan is an example, the central authorities emphasize civil laws and procedure, and stress the importance of their role as honest brokers between litigating individuals. The diversity of legal interests in weak polities is reflected in the text which Dr. Steenstrup analyzes. The Sata mirensho ("A book for those unskilled in legal matters") was written by an unknown author around 1320 as a guide to those warriors who found themselves involved in litigation or local law enforcement. The Sata mirensho deals mainly with the Bakufu courts, describing their procedures, explaining how to write up pertinent documents, and defining the legal terms used in them. Dr. Steenstrup provides a fascinating and detailed description of the process of civil and criminal litigation in the courts involved, and in so doing gives us a general picture of Kamakura legal relationships and the society in which they existed. Brian McKnight stresses yet another source out of which law might grow. In describing the transformation of the Sung legal system from one largely dependent on statutory law to one where precedent played an

VIII

INTRODUCTION

important role, he illustrates how the very processes of codification and collection of legal materials themselves could serve as sources of legal change. Where the laws were being periodically collected, edited, and reissued, the mere preservation of a law was a type of creation. In one case the Sung editors began with almost 20,000 edicts, and ended up with less than three hundred generally applicable laws. Obviously this process exercised a profound, if negative, influence on the shape of the law. Professor McKnight describes the kinds of laws employed in Sung times, the origins and character of the compilation process, and its relationship to the increasing dependence on precedents which marks the late Northern and the Southern Sung. In his contribution to this collection Osamu Oba reminds us of the importance of borrowing as a source of law. Most legal systems have grown at least in part through the critical and selective use of elements taken from other traditions. The influence of T'ang law on the early Japanese legal system is a familiar story. In his paper Professor Oba explores some of the potential influences of Chinese law during the Edo period. He does so indirectly by studying the book trade with China and Japanese scholars' studies of T'ang, Ming, and Ch'ing law. Such studies were carried out not only by scholars working directly for the Bakufu, but also by scholars working for various daimyo and by independent scholars. The figure who looms most important as a patron was the shogun Yoshimune, who ascended to the shogunate from the position of daimyo of Kii. Work on the Ming codes had been going on at Kii under Yoshimune's father, and the young Yoshimune continued to support these studies after his appointment as daimyo. When he became shogun in 1716 he maintained his interest, and from the 1720s sponsored a series of studies of Chinese legal materials. Professor Oba suggests that the key scholarly figure at this time was Ogyu Hokkei, who was a Confucian adviser to the shogun and was not, as is generally believed, Hokkei's older and better known brother, Ogyu Sorai. The researches of these two brothers, and of the other legal scholars of this era, at times provided the direct and obvious models for Japanese legal reforms. Far more important, though much more difficult to assess exactly, was the influence of these studies, and of the critical editions and translations of Chinese legal works that came from them, on the general legal attitudes of the Tokugawa leadership. Finally, these Japanese scholars provided the basic background materials which facilitated the study of Chinese law when Japanese leaders were discussing legal reforms in the nineteenth century. In the last paper, William Shaw, writing about the reception of NeoConfucian ideas and Ming law in early Yi dynasty Korea, deals with a

INTRODUCTION

IX

topic that has much in common both with the topic of Professor Oba and with that of Dr. Tai. We have here a case study of the effects of local customs and values on the borrowing of foreign laws and values. In fifteenth-century Korea the Neo-Confucian ideas of Chu Hsi spread among some Korean scholar-officials and eventually came to dominate their intellectual life. At the same time, the state was seeking to enforce laws borrowed from the Ming Code. Both of these developments were resisted by large sections of the Korean elite. Dr. Shaw argues that the slow pace of legalization in Korean life and society was not due to a too great commitment to Confucianism. On the contrary, the Neo-Confucianism of Chu Hsi and the principles in the Ming Code were mutually supportive. Resistance came, rather, from the failure of the Yi kings and other members of the elite to adopt these Neo-Confucian values. A commitment to old hierarchical patterns of social life and a continuing acceptance of Buddhist values bolstered the capacity of the elite to resist the encroachment of these newly imported Chinese ideas. Dr. Shaw supports his thesis by describing the controversies that surrounded the attempts to introduce Neo-Confucian ritual practices connected with ancestral worship and household shrines, and he goes on to depict the struggle of the Neo-Confucians against Buddhist values as reflected in arguments over the system of royal amnesties. Dr. Shaw presents a strong argument for the fundamental interdependence of Chinese law and Chinese philosophical ideas, and portrays for us once again the selectively creative process by which the non-Chinese states within the Sinitic world borrowed, modified, and made their own those cultural elements that originally stemmed from their larger neighbor. The six papers included in this volume touch on a wide variety of possible sources of law, and use a number of possible approaches to the study of legal history. They are, of course, first steps in a field which is still largely unexplored. Further studies of customary law, codification, legislation, procedure, and the role of key individuals in legal change will be necessary before we can understand adequately the ways in which traditional East Asian legal systems worked and changed. Let us hope that studies such as the six gathered here will stimulate others to help in the exploration of one of the least well understood aspects of East Asian civilization.

Social Order in Early Ming China: Some Norms Codified in the Hung-wu Period E D W A R D L. FARMER

INTRODUCTION

During the imperial era, Chinese dynastic foundings were often the occasions for fundamental institutional changes. Dynastic founders frequently came to power amidst social and political turmoil and set about stabilizing their society and rule by consciously selecting and stipulating rules to govern their subjects and successors. In attempting to assess the jurisprudential problem of the origins of law, it is imperative that we bear in mind the role of these key individuals. The attempts of strong founding emperors to generate law and mould the social order provide an important source of information about the nature and limits of the sovereign's role in creating law. Chu Yuan-chang, founder of the Ming dynasty (1368-1644), is an especially striking example of the emperor as lawgiver. His character, his long reign, and the institutional context within which he worked combined to increase the impact of his actions. From an institutional perspective the Ming founding was noteworthy. First of all, the Ming state succeeded the period of Mongol rule (Yuan dynasty, 1279-1368). Consequently, one can find in Ming institutions both traces of Mongol influences, many of which are common to other post-Mongol empires in Asia, and also elements of an almost nationalistic revival of traditional cultural forms indigenous to China. 1 Secondly, concentration of imperial power reached a new high. The first Ming emperor, Chu Yuan-chang (who reigned during the Hung-wu era, 13681398 and was posthumously designated T'ai-tsu), was himself a com-

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E D W A R D L. FARMER

moner and came to power at the head of a peasant insurrection with secret society inspiration and strong influences from messianic popular religious doctrines.2 As a result of these circumstances, and the fact that Chu Yuan-chang was on the throne for thirty years arranging the affairs of state to suit his taste, the new order was not just an unthinking continuation of precedents from the past but a careful selection of elements of elite culture by a ruler of humble origins who studied history and classical texts as he governed. Thirdly, Ming governmental institutions provide models for statecraft which were influential throughout East Asia. The law codes in particular were closely copied in Vietnam and Korea. The Ming state also provided an important fund of ideas for the men who consolidated the successful Tokugawa state in Japan. When in the seventeenth century the Manchus established their rule in China they found it to their advantage to leave much of the organization of government and the codified law untouched. This paper will consider the form and content of some early Ming codes, particularly as they applied to the Chinese social order. In writing this essay I have chosen to focus on the prescriptive character of the codes in the context of a newly established state. There is little in the codes which is without precedent in the long history of Chinese law, and much that is carried over from the great T'ang Code. However, a consideration of Ming legislation in the light of earlier dynasties is beyond the scope of this paper.3 Likewise I will not attempt to describe the impact and application of the codes on the population of the empire in the late fourteenth and early fifteenth centuries. That is a topic for future research to which this paper is but an introductory first step. The codification of laws by the Ming founder provides us with evidence of the type of social order which the new ruler wanted to foster. Codified law is not, of course, a description of social reality. Nor is it, like a body of case law, the source of indirect evidence of social practices. What the newly minted codes of the Hung-wu era embodied were ideals or prescriptive norms issued by the ruler for the governance of society. The content of these ideals is all the more interesting because the millennarian ideology of the popular insurrectionary movement that Chu Yuan-chang headed in his early career was abandoned during his reign in favor of the Chu Hsi school of Neo-Confucianism; because of the degree to which Chu Yiian-chang attempted to consolidate power in imperial hands; and because considerable documentation attesting to his intentions and attitudes has survived. It is the aim of this paper to explore in a tentative way some of the social norms manifested in three early Ming texts: the Huang Ming tsu-hsun (Imperial Ming ancestral instruction), the Ta Ming ling (Great Ming commandment), forerunner of the Ta Ming

S O C I A L O R D E R IN E A R L Y MING C H I N A

3

lii (Great Ming code), and the Chiao min pang-wen (Placard of people's instructions). 4 The inquiry thus focuses on these three documents, although other sources will be used where they aid in understanding the Ming founder's intentions. It should be noted that two relevant and related inquiries will not be attempted in this paper. One is the investigation of the role of pre-Ming precedents in shaping the form and content of Ming codes. The other is consideration of the actual operation of the codes in the administration of justice. It does seem appropriate, however, to suggest the context in which the content of these early Ming codes is to be considered.

STATE

CONTROL

OF

SOCIETY

Because law codes applied to the population at large, and not just to the body of government servants as did administrative regulations, law codes should tell us something about the relationship between the central government and the local community. In his introduction to The City in Late Imperial China, G . William Skinner makes the point that governmental administration, as measured by the number of county-level units of field administration, did not expand with the growth of the population during the imperial era. 5 A m o n g the consequences of the failure to expand the scale of imperial administration were the growth in the area and the population of county-level units, the weakening of governmental control over commerce and local affairs generally, and an increased dependence upon local elites and community organizations for social control. How did the imperial governments accommodate to the new conditions? It is my supposition that central administrations were obliged to place increased reliance on normative devices and indirect control through local elites. The Ming state's active promotion o f Neo-Confucianism, its appeals to tradition, its appropriation of elements of the popular religion, and its enthusiasm for community organization are all consistent with this view. In the absence of the capability to intervene directly and in detail in the affairs of the populace, the Ming state portrayed itself as the champion of a system of traditional norms which were to govern behavior empire-wide. The state thus had a vested interest in developing and popularizing values supportive of order, hierarchy, and the central government—an orthodox world view based primarily on Confucian doctrine. One complicating element in this argument is that during a dynastic founding one would expect to find the state attempting to maintain a high level of administrative control. Consequently, one might ask whether the early Ming use of normative appeals and reliance on local elites varied in nature or intensity from the practice of later reigns.

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Before considering the content of Ming measures to regulate the life of the common people, it is necessary to say something about the nature of central-local interaction. The temptation in examining central government texts is to assume either that the elite picture of society manifested in imperial documents accurately portrays local conditions, or that local communities were actually organized and governed in conformity with central directives. Neither of these assumptions would be warranted in the absence of detailed studies of local affairs. It is not possible to clarify the complex ways in which culture and class were related in Ming China, but it is useful to say something about the issues in question. 6 At the most basic level the issue is one of initiative and accommodation. To what extent was the central government obliged to recognize and tolerate local organization and practice, and to what extent was the local community modified and constrained by regulations imposed from above? The questions can be variously formulated in terms of social class (the roles played by peasants and elites at various levels in the hierarchy of central places), institutions (the forms of local community organization), or culture (the values and beliefs of peasants and elites). Regardless of the nature of the central-local interaction under consideration, one can argue for the existence of initiative from the peasant community. Peasant dependence upon elite leadership was not absolute. Whereas most theorists have stressed the degree of peasant dependency, Ralph Thaxton, in his studies of the Chinese revolution, has called for a more balanced accounting by distinguishing three normative orders in the traditional peasant world: a superior landlord value system, a subordinate peasant value system, and an egalitarian peasant counterculture. 7 Which of these value orientations was predominant in peasant thinking at a given time was largely a function of the peasants' perception of political conditions and shifts in power. Peasants would be most likely to express and act upon the values of their own egalitarian counterculture when the central government was weak and the landlord-gentry elite demoralized. The late Yiian period was such a "moment of millennial ecstasy." The great popular movements which led to the overthrow of Mongol rule and the establishment of the Ming proudly proclaimed the antielite doctrines of the White Lotus Society. Once Ming power was established, however, conditions changed dramatically. A strong new central government chose to suppress populist rebel doctrines and to uphold traditional Confucian values. Whereas the late Yiian period had seen a breakdown in central control and great freedom of local organizational initiative and popular ideological expression for the purposes of armed insurgency, the early Ming saw the suppression of local initiative and the imposition of elite values to create a new structure of compli-

S O C I A L O R D E R IN E A R L Y M I N G C H I N A

5

ance. This period of a dynastic founding under an energetic ruler such as Chu Yuan-chang was clearly the time when the state had its greatest impact on the social order. In characterizing the "dependency theory," to which he does not subscribe entirely, Thaxton makes use of the concepts of Great Tradition and Little Tradition: A c c o r d i n g to the categories o f dependency theory, the peasants b e c a m e the dependents o f the landlord patrons as they c o n f r o n t e d the p o w e r o f these potentially brutal but ordinarily benevolent patriarchs a n d c o m p r e h e n d e d their o w n institutional powerlessness. In this v i e w , landlords were able successfully t o socialize the peasants to accept the political p h i l o s o p h y they introduced in their material exchanges with the rural poor. A s g r a t e f u l and loyal clients o f benevolent landlords, therefore, C h i n e s e peasants supposedly did not create any culture which w a s not connected with the codes and cues o f the landlord patrons o f C h i n a ' s G r e a t Tradition. W h a t was subjectively just in the G r e a t Tradition w a s subjectively just in the Little Tradition, because the ethics o f peasant culture were only a d r o p - d o w n o f the ethics o f elite culture. T h e main social ethic o f the G r e a t Tradition w a s a conception o f social justice rooted in the idea o f inequality and subordination. In traditional Chinese society, the ethic o f sharing resources was cast structurally in terms o f vertical cones and symbolically in terms o f social d e f e r e n c e . T h e peasants, so the argument goes, subscribed t o this elite ethic because the inegalitarian moral order, being cemented socially by vertical trust a n d reciprocity, allowed the rural f o l k s t o subsist. 8

A local social order structured in vertical cones dominated by landlord-gentry is a configuration shared by most views of rural China in traditional times. Disagreement is not so much over the existence of inequality and subordination but over the degree to which the peasants accepted and internalized elite values in a " d r o p - d o w n " fashion. The distinction between a Great Tradition and a Little Tradition stresses the degree to which peasant and elite values differed. Skinner is critical of the notion of a Little Tradition in China which is more than a local variation and he notes that non-peasants were part of the local culture-bearing units which presumably would be the locus of any Little Tradition.® O f greater importance for the present inquiry is the nature of the distinctions which the central government made between members of the local elite and the peasantry and among members of the local elite. Ming government rulings were aimed at patronizing some groups and restraining others. Ming social regulations appear to have had multiple purposes. In some cases the peasants were protected from abuse at the hands of the local elite. In other cases the intent was clearly to make the privileged position of the elite more secure. In still other instances the intent seems

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to have been to protect the people from government officials—the agents of the throne. THE MING

CODES

In English usage the term "code" can imply either a systematic statement of statutory law or something less formal, a system of principles or rules, that is, a moral code. When we consider the various sets of rules and regulations codified by the first Ming ruler, it is difficult, and perhaps not useful, to maintain a distinction between formal laws and less formal rulings and pronouncements from the throne. When I refer to codified norms, therefore, I have in mind a range of documents issued in the name of the ruler which were supposed to have binding force upon the emperor's subjects. These documents include such matters as criminal law, rules governing the imperial clan, tables of organization for the bureaucracy, warnings to officials and commoners about improper conduct, rules applying to the management of local affairs, and on the proper way to conduct rituals. A given document may emphasize one or another of these matters, but not to the exclusion of other aspects. The Huang Ming tsu-hsün, or Imperial Ming Ancestral Instruction, ranks high among texts revealing the founder's grand design.10 The text itself consists of a preface and thirteen (unnumbered) sections containing 102 (unnumbered) items. In the preface Chu Yüan-chang talks about the need to establish order and about the wisdom he has gained in pacifying the empire. He notes that the Ming Code was proclaimed so that the people might know the prohibitions. The Imperial Ming Ancestral Instruction was established as a clan law (chia-fa). He was aware, he said, of the proclivity of some shallow scholars to affirm the past and decry the present just as evil officials like to twist the text and bend the laws. His intention in publishing the Imperial Ming Ancestral Instruction was to transmit his orders forever. "All my progeny shall adhere to my orders and not [dare] to be clever and change my fixed laws. Not a single word may be changed."11 Thus the founder's intention to shape the behavior of future generations was abundantly clear. The section headings indicate how the emperor organized his concerns. They are: "First Article," "Observances," "Proper Sacrifice," "Precautions on Coming and Going," "Prudence in Affairs of State," "Ceremony," "Law," "Palace Regulations," "Eunuchs," "Rules of Office," "Military Guards," "Construction," and "Provisions." The text of the Imperial Ming Ancestral Instruction went through various changes in the Hung-wu period. In its earliest extant form it was referred to as the Huang Ming tsu-hsün lu. The earliest version was com-

SOCIAL O R D E R IN EARLY MING C H I N A

7

pleted in Hung-wu 6 (1373), but careful scholarship by Huang Changchien has shown that the surviving text by that title is a revised version of Hung-wu 14 (1381).12 This dating has been made possible by careful correlation of internal evidence with datable events known to have occurred after Hung-wu 6. The absence of an earlier version of the text is particularly regrettable in light of the fact that such drastic changes in the governmental organization were carried out around 1380. The Imperial Ming Ancestral Instruction in its final form was promulgated in the twenty-eighth year of Hung-wu (1395). It embodied alterations of the Huang Ming tsu-hsiin lu which reflect events and changes of attitude which had influenced the founder's views since 1380. An example is the "First Article" (Tsu-hsun shou chang) which replaced the earlier "Admonition" (Chen-chieh) section. The "First Article" contains items such as the prohibition against establishing a prime minister, reflecting the earlier abolition of that office. Likewise it omits language of the earlier version dealing with the relations between an emperor and his younger brothers, since the first heir to the Ming throne had already died and been replaced by the founder's grandson—not an elder brother to the princes but a nephew. Changes in sections dealing with the princes are numerous. These changes suggest that the princely establishments were quite powerful in the early years, that the princes were not cut off from the populace in their areas, and that officers of the fiefs actually administered local affairs. A second revealing document is the Ta Ming ling, or Great Ming Commandment.13 Issued in the first year of the Hung-wu reign (1368), the Commandment served as the first law code of the new dynasty. In his preface to the document, Chu Yuan-chang noted that through the ages the laws had gradually become more complex so that it was difficult for the people to know the law and avoid transgressions. The purpose of issuing the Commandment was to provide a clear and simple set of rules which everyone could follow. The emperor also made a distinction between ordinances (ling) and statutes (lii), both of which he considered devices for ruling the empire. Ordinances, he said, were to instruct before the fact whereas statutes were to regulate after the fact. This distinction is useful in clarifying the relationship of the Commandment (Ta

Ming ling) to the later Great Ming Code (Ta Ming lit).14 The Commandment, with 145 items, was the predecessor of the Great Ming Code, which numbered 460 items. Structurally they were similar in arrangement, the contents of the Commandment having been arranged in the order of the six ministries (Personnel, Revenue, Rites, War, Justice, and Public Works), an order which ultimately was also imposed upon the Great Ming Code. The nature of the contents, however, was markedly

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FARMER

different. The statements in the Commandment were normally in the form of positive injunctions. For example, the first item in the Revenue section reads: "Those households and persons inadvertently omitted [from the records] must proceed to the local official office to report in order to avoid guilt, and to be registered and assume duties."15 Strictly criminal matters are confined to the Justice section which contains seventy-one items. In the Great Ming Code, the general principles governing criminal prosecutions and punishments are moved to the Justice section and placed at the head of the document as an introductory section. All of the items which follow are couched as crimes against the state for which specific punishments will be applied. For example, the first item under the Revenue section of the Great Ming Code begins with a statement that in families which have not registered but owe tax and service obligations the head of the household shall be beaten one hundred blows with the heavy bamboo. The structures of the Commandment and the Great Ming Code may be compared in tabular form, although it should not be inferred that the content is the same or even very similar. It can be seen from the relative weights of the Revenue and Justice sections that the greatest thrust of the Commandment and the Great Ming Code was the regulation of the conduct of the people. The Personnel, Rites, War, and Works sections applied, for the most part, to government business and the behavior of officials. Much more specific works existed for the regulation of such matters as government organization and rites.16 A text which was aimed directly at regulating the lives of the people in the local village community was the Placard of People's Instructions (Chiao min pang-wen).11 Published in the last year of Chu Yuan-chang's reign (1398) and consisting of forty-one articles, this document sets out the provisions for supervision of local affairs by the elders of a village. The matters which were to be judged by the elders are clearly stated; only the most serious kinds of cases were to be reported to the officials for their action. Moreover, several provisions were made for the village elders to act as a check on county-level officials, the former having the power to report misconduct by the latter directly to the emperor. A listing of the items in the Placard of People's Instructions is given in Appendix II. Another document, or set of documents, which deserves mention in this context is the Grand Pronouncement, or Great Warning (Yii-chih takao), first issued in 1385 and later supplemented, and consisting of 204 items." Included in the scope of the Grand Pronouncement were warnings to civil and military officials and common people about a wide range of abuses. So strongly did the first emperor wish to encourage the study of this document that he ordered it to be studied in the schools and to be

Table 1. Structures of the Ming Commandment and Ming Code Ta Ming ling (145 items)*

I. Personnel (20)

II. Revenue (24)

III. Rites (17)

IV. War (11)

V. Justice (71)

VI. Works (2)

Ta Ming lit (460 items)t

I. Terms and General Principles 1. Terms and general principles (47) II. Personnel (Administrative Law) 2. Administrative regulations (15) 3. Standards of official behavior (18) III. Revenue (Civil Law) 4. Family and corvée service (15) 5. Landed property (11) 6. Marriage (18) 7. Government granaries and treasuries (24) 8. Taxes and tariffs (19) 9. Money lending (3) 10. Public markets (5) IV. Rites (Ritual Law) 11. State sacrifices (6) 12. Ceremonial regulations (20) V. War (Military Law) 13. Imperial palaces and guards (19) 14. Administration of armed forces (20) 15. Frontier guard posts (7) 16. Horses and cattle (11) 17. Postal services and transport (18) VI. Justice (Penal Law) 18. Violence and theft (28) 19. Homicide (20) 20. Affrays and blows (22) 21. Abusive language (8) 22. Accusations and suits (12) 23. Bribery and squeeze (11) 24. Deception and fraud (12) 25. Sexual violations (10) 26. Miscellaneous offenses (11) 27. Arrests and escapes (8) 28. Trials and imprisonment (29) VII. Works (Laws on Public Works) 29. Public construction (9) 30. River conservancy (4)

•Number of items for each section. TSubsection and number of items indicated. This translation is renumbered but generally follows that of Derk Bodde and Clarence Morris, Law in Imperial China (Cambridge, Massachusetts: Harvard University Press, 1967; Philadelphia: University of Pennsylvania Press, 1973), pp. 60-61.

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read publicly. He even gave rewards for students who could recite it from memory and stipulated that criminal punishments would be lowered one degree for those who could prove that they had a copy of it in their homes, and raised one degree for those who did not. 19 THE LOCAL

COMMUNITY

The impact the early Ming state had upon the life of the mass of the Chinese people was a function of its ability to penetrate the villages and induce the populace to make their behavior and their beliefs conform to the ideals advocated by the government. The modest administrative structure of the government, which reached only to the county level, was obviously not well suited to this purpose. There were, however, a number of structures, programs, and initiatives devised by the Ming founder which did aim at social units below the county level. The approach which the Ming founder used in his attempts to guide Chinese social practice followed the structure of the local society. Individuals were dealt with as members of groups or communities. The desired modes of behavior and belief and the modes of enforcement generally subordinated the individual's interests to those of a collectivity. Little concern was shown for the individual's subjective side—for thought patterns, intentions, conscience, or freedom of action—but a great stress was placed on groupings, particularly hierarchical relationships, which were to keep the individual's actions within proper bounds. The individual, it may be inferred, was assumed to have an identity defined primarily in terms of a nexus of social relations, the most important of which could be spelled out as specific obligations and responsibilities obtaining between subordinates and superiors. In an essay on urban social control, Sybille van der Sprenkel distinguishes two sorts of social control under the imperial system. 20 She characterizes both a territorial network of imperial authority extending downward from the county seat and an unofficial organization of customary or spontaneously established groups. Such a distinction raises the question of the nature of local social organization and the'degree to which it was independent of official initiative. There were at least five fundamental categories of activity which defined the local community and in terms of which the individual could be identified: trade, agricultural production, worship, kinship, and security. The village may be characterized in terms of each of these categories: as an element in the marketing system, a unit for tax collection, a community of worshippers with a shared shrine, a constellation of families and clans, and a grouping of houses or a walled enclosure. For four

SOCIAL O R D E R IN EARLY MING C H I N A

of these categories the codes contain considerable evidence demonstrating a governmental interest in imposing a particular structure upon the community. The outlines of these relations may be represented in tabular form (Table 2). Professor Skinner has plausibly demonstrated the importance of transport and the exchange of goods and services in shaping Chinese communities into systems of markets, but there is little reference to markets or trading centers in the documents under discussion.21 It may be that marketing was of little interest to the state and so received little explicit notice. Or perhaps marketing activity by its very nature is translocal and so is poorly suited to defining the lowest level social unit, the unit which was of the most interest to the state as a control device. Chu Yiian-chang does make some references to regulating measuring devices and controlling corrupt trading practices, but there is no sense in his writing that markets provide an important opportunity for social control. 22 If we consider the local community as a collection of agricultural producers, then the Ming founder's establishment in 1381 of the li-chia system constituted a reorganization of the village for the purpose of administering the collection of land taxes and the performance of labor service. The li was in essence an administrative village of 110 households administered by a village headman (li-chang) and subdivided into sections (chia) under section headmen (chia-chang)." The li included ten sections of ten households each with the wealthiest ten households providing headmen. Tax collection was perhaps the single most important concern of the imperial government in the rural areas. The genius of the Table 2. Communal Functions and Associated Structures Activity

Communal Unit

Government

Interest

Trade

Market/Part of marketing system

Regulation of trade/ Taxation

Farming

Cluster of farms

Land tax/Labor service

Worship

City god temple/ Legitimation/ Shrine of grain and Ideological control soil

Uniform religious hierarchy

Kinship

Clans/Families

Registration/Order

Rules governing marriage, inheritance, mourning

Security

Group of houses/ Walled enclosure

Collective responsibility/Defense

Elders

Structure

imposed

Li-chia organization/ Tkx captains

E D W A R D L. FARMER

li-chia system was that it required villagers to take responsibility for meeting their own tax and service obligations while at the same time elevating wealthier villagers to leadership positions which made them accountable to the government. Presumably this system, which was accompanied by a census of population and a mapping of all agricultural land, cut across natural patterns of settlement and imposed a new administrative classification upon each household. Local religious practice was not overlooked by the first Ming emperor in his quest for control. As part of his centralization of power, Chu Yuan-chang imposed his own organization on the religious practices of local communities.24 Every // was ordered to build a village altar (li-she) to worship the gods of soil and grain, one household being designated to take charge of the ceremonies. An altar was also to be established for the worship of restless spirits and ghosts. Participation in the sacrifices at the li-she altar reinforced community solidarity by requiring group pressure to bring about good conduct and by banning wrongdoers from the communal worship.25 These religious activities of the common people were at the lower end of a hierarchy of religious practice which culminated in the emperor's personal worship of heaven and earth. In the Ming founder's conception of the Way of Heaven (T'ien tao) the spiritual world was arranged in a hierarchy of deities which paralleled, but was superior to, the natural hierarchy in human society. The gods of walls and moats, the protectors of urban centers, were understood to be arranged in a pyramid with the god of the capital, Nanking, at its head. Civil officials at each level in the network of field administration were required to sacrifice regularly to the spirits who presided over their jurisdictions. 26 The link between governmental administration and worship of the spirits was made explicit in many ways. For example, in an order of 1382 directing that military officers no longer take part in local sacrifices, the emperor noted that such matters were properly the concern of civil officials since "The role of the civil officials is to serve the spirits and govern the people."27 In his study of the Ming founder's religious policies, Romeyn Taylor suggested that Chu Yuan-chang "by reformulating the popular religion as his state religion, and by standardizing and regulating it, and by having his civil officials preside over its local rites, violated the autonomous and parochial character of the religion and attempted to make it an instrument of personal despotism."28 The Ming government's interest in family and clan affairs is so well known as to require little elaboration. Two sections of the Great Ming Commandment are especially focused on family affairs.2® The household section (hu-ling) contains rulings on such matters as inheritance, the arrangement of marriages by senior generations, an injunction against

SOCIAL ORDER IN EARLY MING C H I N A

13

the splitting of family wealth while the parents or grandparents survive, the adoption of heirs, and the rewarding of chaste widows. The criminal section (hsing-ling) contains the technical rules of mourning which act as a grammar for the administration of criminal law by specifying degrees of relationship within the kinship structure. From the government's point of view the codification of these idealized family relationships, which were entirely orthodox and traditional in character, had the advantage of binding the individual into an ongoing group with the authority over its members' activities in such matters as marriage, residence, occupation, and ownership of property. While the individual's behavior was to be governed by the clan, the state could hold the clan heads responsible for the behavior of the group as a whole. From the individual's point of view the very meaning of human existence was defined in terms of membership in a continuing chain of kinship defined in terms of a male line of descent. One gained social maturity by marrying and having children, thus perpetuating the line. One gained a more permanent standing by joining one's ancestors in the clan temple, first as a participant in the sacrifices and later as a tablet to be worshipped by one's descendants. Sanction by the state of such a complex set of rules governing family and clan relationships must have had the effect of further popularizing those principles among the people and must also have increased the pressure for conformity to the rules by raising the threat of legal penalties for deviance. The effort to make the village into a political entity for security purposes is most clearly demonstrated in the Placard of People's Instructions, which is largely concerned with defining the workings of the system of elders (lao-jen). The people in each li were ordered to nominate three to ten elders above the age of fifty, the final determination to be made by the officials. 30 Thus the li, an administrative division for tax purposes, became a juridical unit. The duties of the elders were to act in concert with the li-chia leaders to settle local disputes and establish a positive moral influence over the community. While the county officials, who represented the central government, presumably had at least a veto power over the selection of village elders, the elder system was in no way a downward extension of the imperial bureaucracy. In fact, the Placard gives the greatest stress to the ways in which the elders were to be independent of the county officials. Only the most serious cases in the village were to be referred to the officials; most matters of conflict or crime were specified for settlement at the village level and the officials were ordered not to interfere. 31 Misbehavior or abuses by elders were to be handled by other elders who could arrest the offender and send him to the capital.32 In extreme circumstances of criminal activities by officials the elders

14

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FARMER

were empowered to arrest the officials and send them to the capital.33 The picture one gets from reading the Placard is that the village was to be given the maximum possible independence from the county-level civil bureaucracy. S O C I A L C A T E G O R I E S IN T H E C O D E S

Implicit in the codes under discussion is the notion that the members of society fall naturally into a number of clearly defined and, for the most part, mutually exclusive categories, and that for each of these categories it is possible to specify what constitutes proper behavior. The assumption that norms are known and can be clearly stated for each walk of life greatly simplifies moral calculation (for the individual) and judicial calculation (for the authorities). To a significant degree correctness and incorrectness (criminality and legality) of behavior is reducible to a matter of classification. If an individual's social status is known, his moral obligations may also be known. What is noteworthy about the blueprint for Chinese society as the Ming founder developed it is the degree to which he (or the throne, or the state) became the arbiter of both the categories into which people were placed and the rules which applied to people in those categories. In theory the state was in the position of legislating the form and content of social life for the Chinese population. In practice the impact of the state fell short of its theoretical potential since (1) for most of the population the state had an interest in legislating only a very restricted range of behavior which affected its security and well-being, (2) the categories and norms specified were usually stated in terms of traditional social practice and involved little social engineering of a type which might have required stressful modification of behavior, and (3) enforcement was often left to the action of groups outside the government, and was not always rigorously pursued. The stated categories into which the Ming population was divided were of two kinds. The principal categories, those used for population registration, taxation, and other such purposes, were hereditary. These categories classified the populace in terms of their importance to the dynasty and the state. Among them were the hereditary elite, the imperial relatives, and the titled nobility. The nonelite groups included the commoners (min), military families, artisans, and merchants. The second set of categories were those which defined people in terms of the roles they played in the state or in society. Such roles were not hereditary since the individual gained the position by meeting certain requirements or by being selected, and the positions generally could not be passed on to off-

SOCIAL O R D E R IN EARLY MING

CHINA

15

spring. This set included such categories as military commanders, civil officials, and eunuchs in the central government apparatus, and degree holders at the local level, yamen runners, elders, li-chia heads, scholars, priests, soldiers, and government artisans. 34 For the most part these nonhereditary categories were created by government action. Consequently, these groups tended to be controlled through explicit legislation to a greater extent than the hereditary groups, which were governed more by social custom. Civil officials, military personnel, and eunuchs, for example, were governed by regulations which specified such things as the way they were to be recruited, how they were to be paid, how they were to dress, where they should serve, what their titles should be, what their duties were, and how they were to be supervised. Even scholars, teachers, priests, and village leaders were subject to supervision by agents of the central government. The relationship of these categories to one another and of the selected roles to the hereditary strata from which their members were drawn can be shown in schematic form (see Figure 1). Some of the differences between the hereditary and administrative categories are revealed by the horizontal lines. On the left the hereditary elite is limited to the imperial family and a small number of hereditary

Fig. 1. Population categories and hereditary strata

Hereditary

Administrative (selection)

Imperial clan Princely lines Nobility of merit

Emperor (succession) Imperial princes (succession) Military commanders (short duration)

ELITE NON-ELITE Commoners

Civil officials Eunuchs CENTRAL LOCAL

Military households Artisan households

Degree holders Yamen runners Elders, Li-chia heads Scholars Priests Corvée workers (seasonal) Soldiers Artisans

i6

E D W A R D L. FARMER

title holders established in recognition for outstanding service in the dynastic founding. This "nobility of merit" (kung-ch'en), despite the fact that its members were often intermarried with the imperial clan, was heavily purged by the end of the Hung-wu reign. The horizontal line on the right distinguishes not between elite and nonelite, but primarily between participants in the central government and members of local systems. Here it is interesting to note that some of the members of the central apparatus, the civil officials and eunuchs, were from commoner backgrounds, yet they enjoyed special status because of their governmental connections. In these cases wealth, power, and prestige were by-products of administrative office. The emperor's attitude toward these groups was one of hostility and distrust. Specific injunctions, such as the prohibition on the office of prime minister and the rule that eunuchs should not be allowed to participate in administration, were aimed at preventing these groups from grasping state power. The eunuchs, of course, did occasionally gain control over the government in later years. The founder's concerns about the groups in the central government are reflected in the distribution of items in the Imperial Ming Ancestral Instruction. Of some 102 items, the affairs of imperial offspring are regulated by forty-seven items, future emperors by twenty-five, civil officials by twenty-three, military offices by seventeen, and eunuchs by eleven (see Appendix I). It is noteworthy that in both the Imperial Ming Ancestral Instruction and the Placard of People's Instructions punishments are most frequently specified for impropriety or malfeasance by government officials and village elders. There is little sense in these documents that officials were possessed of superior moral qualities or that they were expected naturally to act in an appropriate manner. The tone is quite the opposite. The documents suggest that the Ming founder must have assumed that his officials would tend constantly to wrong acts unless specifically restrained. Here are some examples. In the Imperial Ming Ancestral Instruction, item 26, the emperor invited direct reports to the throne from subordinates as low as artisans if they knew of evils taking place. Officials resisting the forwarding of such reports were themselves to be considered the same as the criminals. Article 34 has to do with the respect due imperial princes: Court officials deputed and sent to the residence of a prince or emissaries [of the court] who pass by shall have audience with the prince. Moreover, they will perform the four obeisances. Even though they be one of the three solitaries or a general they still must perform the four obeisances. The prince will sit to receive them. If an emissary's route passes a prince's fief and he purposely winds around to avoid paying audience to the prince he shall be executed.35

SOCIAL ORDER IN EARLY MING C H I N A

17

An item from the Placard of People's Instructions (9) suggests the same jaundiced view of village elders: The elders shall not use the hearing of cases as a pretext for intimidating the lichia, controlling the officials, or refusing to fulfill their share of corvée services. Offenders and their families shall be exiled to the frontiers.36

In contrast to the detailed codification of rules to regulate the actions of officials and elders, the provisions for the behavior of the masses of commoners took the form of generalized appeals to morality. The main themes were summarized in the Six Instructions (Liu yii), contained in item 19 of the Placard: (1) Perform filial duties to your parents, (2) Honor and respect your elders and superiors, (3) Maintain harmonious relationships with your neighbors, (4) Instruct and discipline your sons and grandsons, (5) Let each work peacefully for his own livelihood, and (6) Do not commit wrongful acts.37 According to the Placard of People's Instructions, these instructions were to be proclaimed loudly throughout the village by old or disabled persons, or by blind persons led by children. Villagers were liable for the support of these persons who were to announce their coming by ringing a bell with a wooden clapper. Many of these instructions are echoed in other items in the Placard—for example, item 33 on respect for parents and ancestors, which contains a family prayer, item 27 on a wine drinking ceremony to strengthen distinctions of rank in the village, or item 35, which calls for harmony among the villagers. Perhaps one reason for the normative quality of these injunctions to the common people in contrast to the coercive nature of the regulations governing the officials is the very remoteness of the people from imperial power. The emperor lacked a direct link to the people and so was obliged to exhort them, whereas the functionaries under his administrative control could be effectively manipulated by threats. The commoners were to be punished only for sins of commission, the officials for sins of omission.38

ELITE

CONTROL

The notion of a universe in which there is a prescribed mode of behavior for each category of person is not in itself adequate to preclude conflict and confusion. In addition to group norms the Ming founder utilized two other principles to govern the behavior of individuals within groups and the relations between groups. These principles are ranking and spatial separation. Within groups, conflict was to be avoided by requiring that deference be shown to those more senior in age or authority. Between groups, conflict could be avoided by requiring that members of

i8

E D W A R D L. FARMER

inferior groups show deference to members of superior groups. The principle of spatial separation made it possible to define discrete units within which particular hierarchies of deference and authority could operate. Some of the most interesting problems in the codes arose when ranking and spatial principles came into conflict. What is especially striking about the social hierarchy idealized in the Ming regulations is the extent to which it was a product of administrative fiat and not a description of a naturally existing social system. In the case of kinship, perhaps, one can argue that deference to age accorded with a natural hierarchy, a case being the authority of parents over children. The Ming rules, however, went beyond biological seniority when they stressed generational precedence.over chronological age. A similar problem existed in the village hierarchy. When assembled in the village pavilion to pass judgment, the elders were to outrank the // headmen who were to outrank the chia headmen. 39 If the li headman was older than an elder, their order was reversed. In the selection process, however, age was given only lip service. Item 4 of the Placard of People's Instructions makes clear the balancing of considerations involved: The elders shall settle litigations regardless of whether they have had court audiences or not. As long as they are over fifty years of age, have acted virtuously in the village, have experience and are respected by the people, they shall be appointed to settle the affairs and to distinguish between right and wrong. Those who, although old, are deficient in experience and are not able to distinguish right and wrong, shall also be ranked as elders, but shall not judge cases.40

Here we see the conflict between seniority and competence, with experience and popular respect serving as modifying factors. The reference to court audiences is an interesting indicator of the extent to which contact with the capital was a source of power and authority at the local level. In Figure 1, the left side distinguishes elite from nonelite in hereditary terms, and the right side distinguishes standing in an administrative hierarchy. Potentially there could be conflict between the kinship hierarchy within the hereditary group on the left and the status hierarchy in the governmental structure on the right. When such conflicts arose, recognition was given to the "natural" kinship relations, but it was the state system which predominated. The Imperial Ming Ancestral Instruction addresses at one point the situation in which a prince might outrank the emperor within the imperial clan. When such a prince visited the court, he was required to make obeisance to the emperor as a minister would to his ruler. Later, however,

SOCIAL O R D E R IN EARLY M I N G C H I N A

19

when the audience is over then the prince will be the honored elder and the son of heaven the junior relative. He will lead the prince to a suitable pavilion where the prince will sit on the east facing the west. The son of heaven in ordinary clothes will perform the ritual of a family member, carrying out four obeisances but not knocking the head. The prince will receive this [honor]. However, even though carrying out the ritual of family members the ruler-minister roles must still be respected.41

The elaborate sumptuary laws and ceremonial regulations which are scattered throughout the codes were intended to give substance to the ideal social order by manifesting differences in lifestyle and by compelling deferential behavior. Distinctions within the imperial establishment were stressed in the Ancestral Instruction: princes paying court on the emperor and celebrating his birthday,42 kinship terms and titles,43 and style of life.44 Some of the most detailed of sumptuary and ceremonial regulations stipulated appropriate distinctions among officials of various kinds. The Great Ming Commandment outlined distinctions of uniforms in item 47, dress and housing in item 51. The Li-i ting-shih (Fixed specifications for rites and ceremonies), issued in 1387, elaborated rules for deference by officials passing each other in the street, the directions in which various groups were to face at court, and the types of obeisance required in each interaction with superiors.45 The spatial character of the Ming control system is less overtly stated in the codes than is the ranking principle embodied in the foregoing examples. Nonetheless, spatial distinctions are of the highest importance in the system as a whole. The fundamental principle is one of centrality. As a social system the Ming state was rigorously centralized. By any standard the emperor, at the center of the system, enjoyed greater wealth, had more military power at his disposal, and stood higher in terms of ritual and ceremonial activities, than anyone else in the empire. Using centrality as an ordering principle, one can make an assessment of individual standing according to proximity to the emperor. The right side of Figure 1 suggests that for some purposes, such as assessment of political influence, centrality might be a useful indicator of relative standing. Grand secretaries and eunuchs are examples of groups that, by virtue of their access to the palace, enjoyed greater power in the Ming than their formal ranks merited. A number of items in the codes reflect a concern with controlling the spheres within which various categories of individuals could operate. The nobility of merit were kept within the capital by a hostage system, being sent out only briefly on campaigns while their families remained in Nanking. 46 The princes were dealt with by the reverse of this principle. They were dispersed to fiefs in outlying areas and denied the

E D W A R D L. FARMER

20

opportunity to interfere with affairs at court. The Imperial Ming Ancestral Instruction restricted their travel to the capital and banned them from state banquets. 47 From the emperor's point of view any persons acting at a distance with imperial sanction, officials or soldiers in the provinces, were always a threat to the local social order. Regulations in the Great Ming Commandment requiring avoidance of conflict of interest,4" mandating rotation of assignment, 4 ' and prohibiting plunder,50 were some of the many devices to control government servants. Other institutionalized checks on regional authorities included supervision by censors and the use of imperial princes to check regional military commanders. 51 The Placard of People's Instructions gives evidence of a desire to shield the local community from the actions of county-level officials and their agents. The Placard carefully specifies which affairs at the local level are to be handled by the elders and forbids the officials to intervene.52 The elders, for their part, were given explicit authorization to arrest criminal officials and send them to the capital.53 The emperor attempted to bolster the authority of the village leaders by allowing them to report directly to the capital.54 Two regulations suggest that travel in Ming China was restricted in the Hung-wu period. The item in the Placard, just cited, reads in part: Whenever, in the course of settling a litigation, there is something to report, the elders can come to the capital for this purpose. They do not require a pass. The check points through which they pass shall not stop them. Other persons are not allowed [to have such a privilege]. Those who falsely claim to be elders in order to go to the capital to discuss governmental matters shall be severely punished. . . ,5S

This passage mentions both passes and check points. Item 32 of the Great Ming Commandment required that hostels make a monthly submission of their registers to the warden's office. Names and numbers of guests and merchants were to be recorded along with an indication of the date on which they began their journey. CONCLUDING

REMARKS

This paper is an attempt to develop an approach to early Ming history which will integrate the study of Ming society (social behavior) with the study of political ideology (ideals, norms). The present effort is limited to a preliminary discussion of selected documents generated at the highest levels of the central government. It still remains to search for evidence of how these regulations were put into practice and what impact they may have had on Chinese society over time. Only with detailed studies of

SOCIAL O R D E R IN EARLY MING

CHINA

social practice at the local level can one answer the broader questions about the interaction of government and society in the fourteenth and fifteenth centuries. Nevertheless, a few preliminary remarks can be ventured just on the basis of the documents examined here. First of all, I am struck simultaneously by the nonspecific nature of the early Ming codes and by the comprehensiveness of the Ming founder's social blueprint. The latter point could be exhaustively documented with references to existing literature if further evidence were called for. The former point is apparent from the listings of contents of the codes in the appendices. The nonspecific nature of the Ming government's injunctions to its subjects reflects the traditional nature of its social categories derived from the six ministries, the extent to which the individual was viewed in terms of family membership, the rhetoric of government pervaded by figurative allusions to kinship, and the fact that the imperial clan was imbedded in the core of the state. A second point which strikes me on reading these codes is that one gets no sense of either a local gentry or a distinct local culture. The elites recognized at the local level are elders and li-chia heads, those whose positions were confirmed by government action. Religious specialists, scholars, and wealthy persons are mentioned in the texts but not accorded any special powers. The wealthier households were co-opted by being put in charge of the li-chia system, and the older members of the village were co-opted by the elder system, both devices which allowed the government to define their responsibilities and which placed them under legal obligation to the government. There is no sense of a preexisting educated class whom one would call gentry. To be sure, latitude in local affairs was allowed to village leaders in settling matters relating to marriage, property, crime, and conflict. The government demanded conformity to its standards in a narrow range of concerns—the most serious crimes, tax and labor service obligations, contact with officials, and thought. In the important area of kinship the government prescribed adherence to standards outlined in the Great Ming Commandment and elsewhere. In religious practice the Ming founder required sacrifices at a local altar of the soil linked to a national system and to local ghosts and spirits. The question of local religious cults was left open. Thirdly, while the codes do not suggest the recognition by the government of a strongly organized corporate village community, they do give the impression that the government was limiting its own sphere of action at a county or subcounty level above the village. Here the concern seems to be less the suppression of local initiative than the constraint of excesses by the government's own field administration. The local leadership pictured in the codes was charged with imposing elite values on the

22

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commoners; an even stronger emphasis was placed on checking the actions of officials and their minions. It is almost as if the emperor wished to create an effective village unit to counter the forces of his own bureaucracy. In this view the formation of a local government could be seen as parallel to the placement of the princes in the provinces, and the development of a national religious hierarchy as a move to balance the power of the government establishment. Fourthly, it might be hypothesized that there was a retreat of Ming state power at the local level by the end of the Hung-wu period. At the beginning of his reign the Ming founder made maximal claims to influence Chinese social practice at the local level, yet by the end of his reign he retreated somewhat from his earlier position. The Great Ming Commandment and the Placard of People's Instructions, which were issued at the beginning and end of the Hung-wu era, respectively, offer some evidence to support this contention. Items in the Commandment which concern such matters as settling family disputes,56 breaking engagements,57 rewarding chaste widows,58 and registering physicians and geomancers,59 are presumably addressed to officials for action; in the arrangements envisioned by the Placard such matters would be handled by li-chang and elders. Village schools (she-hsiieh) provide a more concrete indication in the realm of ideological control. Early in his reign (1375) the founder ordered that village schools be established throughout the empire.60 Students in the schools were to study and memorize the texts of the Grand Pronouncement and the Great Ming Code. In the Placard of People's Instructions, the community schools were abolished because officials and li and chia headmen were using the schooling requirement to harass the people, especially those who were short of manpower and could not afford to spare sons for school.61 Voluntary formation of schools was still to be allowed. These are minor points, to be sure, but they do suggest some drawing back from the assertive policy of the early years, and they suggest that the motive was a desire to check excesses by government agents.

APPENDIX

I

Contents of the Huang Ming tsu-hsun Section and No.

Short Description of Contents

Whose Behavior Affected

in V3

V -H l ) VIt-i a 4& > V c C0 o& 8, & « c W S J 3 Oi C (A O w o B O o s U 0 w a g

00

e .2 •C < pj 5

o

Preface I. First Article (17 items) 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.

Punishments, ban on branding, etc. Ban on prime ministership Crimes by imperial relatives Avoiding foreign wars Respect for dynastic founders Concern for the people Grain reserves Emperor's security Bodyguards and messengers Listening at night Sleeping and eating Employ good men Judicial decisions Rewards Princes in fiefs Keeping order at court Court control of princes

x x

x x x x x x x

x x

x x x x x

x x x x

II. Observances (1 item) 18. Morality in the palace

x

III. Proper Sacrifice (6 items) 19. 20. 21. 22. 23. 24.

Sincerity in sacrifice Heaven and earth Ancestral temple, national altar Stars, wind, etc. Lesser sacrifices Household sacrifices

x x x x x x

x

x

NOTE: Roman and Arabic numbers have been added. The original text has only the headings. The order of items is the same.

(continued)

23

APPENDIX I Section and No.

(continued)

Short Description of Contents

Whose Behavior Affected

M ÛÛ o c .22 'S "2 e ê 2 a o s

«5 •s 3 C a3

3 o I iT ik wif^tiki-M 7>L (On the period when the Huang Ming tsu-hsiin lu was published and on the system of princely enfeoffment in the early Ming). Chungyang yen-chiu yuan li-shih yii-yen yen-chiu-so chi-k 'an ^ - f r t f f k . f&A ~t 32(1961): 119-137. Huang Ming tsu-hsiin JL iiM (Imperial Ming ancestral instruction). In Ming ch'ao k'ai-kuo wen-hsien 4/1ffiH i^M (Documents from the Ming founding), vol. 3, pp. 1585-1768. Taipei: Hsiieh-sheng Shu-chii, 1966. Hung-wu li-chih j&^iSH'I (Hung-wu ceremonial regulations). In Huang Ming chihshu, vol. 3, pp. 1197-1352. Li-i ting-shih it-iH,^.^, (Fixed specifications of rites and ceremonies). In Huang Ming chih-shu, vol. 3, pp. 1363-1403. Lin, Tai-yung. "Ming T'ai-tsu and His Administration of Justice." Doctoral dissertation, University of Minnesota, 1979. . "The System of Direct Petition to the Throne in the Time of Ming Taizu." Ming Studies 9 (1979): 52-66. Ming hui-yao sfl (Handbook on Ming government). Typeset ed. 2 vols. Peking, 1956. Skinner, G. William, ed. The City in Late Imperial China. Stanford: Stanford University Press, 1977. . "Introduction: Urban and Rural in Chinese Society." The City in Late Imperial China, pp. 253-273. Ed. by G. William Skinner. Stanford: Stanford University Press, 1977. Spence, Jonathan. The Death of Woman Wang. New York: Viking Press, 1978. Ta Ming ling A ¥]fy-(Great Ming commandment). In Huang Ming chih-shu, vol. 1, pp. 7-117. Ta Ming lu (Great Ming code). In Huang Ming chih-shu, vol. 4. Taylor, Romeyn. "Yuan Origins of the Wei-so System." Chinese Government in Ming Times, pp. 23-40. Ed. by Charles O. Hucker. New York: Columbia University Press, 1969. . "Ming T'ai-tsu and the Nobility of Merit." Ming Studies 2 (1976): 57-69. . "Ming T'ai-tsu and the Gods of the Walls and Moats." Ming Studies 4(1977): 31-49. Thaxton, Ralph. "The World Turned Downside Up: Three Orders of Meaning in the Peasants' Traditional Political World." Modern China 3, no. 2 (1977): 185-228. van der Sprenkel, Sybille. "Urban Social Control." The City in Late Imperial China, pp. 609-632. Ed. by G. William Skinner. Stanford: Stanford University Press, 1977. (Grand pronouncement). In Huang Ming chih-shu, vol. 1, Yu-chih ta-kao -fip pp. 119-236.

Protection of Women's Civil Rights in Traditional Vietnam: A Comparison of the Code of the Lê Dynasty (1428-1788) with the Chinese Codes TA VAN TAI

INTRODUCTION

In his classic work on jurisprudence, the great English legal thinker Sir John Salmond noted that: custom is the embodiment of those principles which have commended themselves to the national conscience as principles of truth, justice, and public utility. The fact that any rule has already the sanction of custom, raises a presumption that it deserves to obtain the sanction of law also. . . . Speaking generally, it is well that courts of justice, in seeking for those rules of right which it is their duty to administer, should be content to accept those which have already in their favour the prestige and authority of long acceptance, rather than attempt the more dangerous task of fashioning a set of rules for themselves by the light of nature. The national conscience may well be accepted by the courts as an authoritative guide; and of this conscience national custom is the external and visible sign.' In the group of states surrounding China the fundamental importance of custom as a source of law has long played point and counterpoint to the influence of Chinese example. These states, in traditional times, created codes of laws which were modeled more or less closely on Chinese prototypes. The history of the development of their codes is, in substantial part, the history of the struggle between the imported model and the indigenous patterns of behavior, thought, and belief reflected in local custom. At times the Chinese pattern appears to overwhelm local custom, resulting in codes which are virtual copies of the Chinese models.

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But even when this was true local custom often prevailed in practice while it was in theory overruled. The situation is revealed with particular clarity in the history of Vietnamese law, where the traditional high legal status of women is at times embodied in the codes, and continues to be observed in practice even under codes modeled more closely on those of China. This native tradition is often not given the credit it deserves. When the modern movement for women's rights spread from Europe to Vietnam, the women who participated there looked for their inspiration to events abroad. In 1932 a well-known Vietnamese lawyer wrote of the feminist movement in Vietnam at that time that: Surely one sees that at the present time, leavened by dangerous Western thoughts, dishevelled little females are enlisting at random under the banner of feminism and proclaiming, at the instigation of their "Western sisters," their right to a free and full life. . . . These little fools do not know that this very doctrine of feminism, which they adduce and go so far abroad to look for, is a product of the national soil, capable of being exported; that the genuine feminism must be searched for, not elsewhere but in their own country, by returning to the admirable and reasonable traditions of their race.2

The national traditions referred to were exemplified by the Code of the Le Dynasty (1428-1788), which can best represent the genuinely Vietnamese traditional law and serve as a basis for comparison with the Chinese codes of the T'ang, Ming, and Ch'ing, and the Imperial Vietnamese Code of the Nguyen dynasty (1802-1945).3 Dynasties earlier than the Le did promulgate codes, but these were lost after having been brought to China by the commanding general of the Ming army that invaded Vietnam prior to the founding of the Le dynasty.4 The later Imperial Vietnamese Code (.Huang Yiieh lii li/Hoang Viet luat le, the Gia Long code of the Nguyen dynasty) was less a Vietnamese code than a faithful copy of almost all the statutes and substatutes of the Ch 'ing Code; even the title was chosen to imitate the Chinese code's title of Ta Ch'ing lii-li, abandoning the terms Hihh thil (Hsing shu) or Hihh luat (Hsing lii) which had been used in the titles of the codes of previous Vietnamese dynasties. So complete was the plagiarism that Western students of Ch'ing law now refer to Philastre's French translations of the Imperial Vietnamese (Nguyen) Code as a substitute for a translation of the Ch 'ing Code itself.5 The Nguyen Code was a copy of the Ch 'ing Code; the Le Code was only partly imitative of Chinese models. But did the Le Code protect the status of women to such an extent that one can talk about a feminist tradition in the old Vietnamese society? And can we use this particular area

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of Vietnamese traditional law to reject the generalization that the state in traditional East Asia was not interested in civil law regulation and protection of private interests?6 Traditional Vietnam was within the cultural realm of China, a society in which, from the Han period to the end of the imperial era in 1911, not only morality but also the law upheld the dominant male position and relegated women to a lesser status. Thus, even in the Le Code, in accordance with Confucian ethics the Vietnamese wife, like her Chinese counterpart, had in some respects a lower status than did her husband. Vietnamese law did not subject all inferior family members to the authority of the family head to the degree characteristic of Chinese law, but it did follow the Chinese codes in reserving for husbands a status superior to that of their wives. Within the family, the wife's lower status was evident in two areas. In criminal law, many offenses commited by the wife against the husband were punished with the same severity as offenses committed by children or grandchildren against parents or grandparents or by no ty (in Chinese, nupei, slaves or serfs) against masters. For the same offense, the penalty was more severe when committed by the wife against the husband or his relatives than when committed by the husband against the wife or her relatives. (For example, the wife would be punished severely for striking her husband but the husband who struck his wife without causing injury was not punished and would be punished only lightly if he caused injury.) Many actions were considered criminal only when committed by the wife against the husband or his relatives and not when committed by the husband against the wife or her relatives. (For example, during a spouse's detention for a crime punishable by death, only the wife, and not the husband, would be punished for participating in entertainment shows.) In the area of family law, the husband might unilaterally divorce or repudiate his wife for any one of the seven traditional grounds (barrenness, lasciviousness, refusal to serve and obey the parents-in-law, quarrelsomeness, thievery, jealousy, and incurable disease), but the wife had no such option. Simply to leave home would be a crime on her part. After her husband's death and during the mourning period of three years, the wife would have to wear a mourning garb all the time and refrain from all entertainments or remarriage—under the threat of sanction by penal law. Such obligations did not apply to a widower. Finally, in society, a wife's destiny was inexorably bound to her husband's. For example, the wife of a man guilty of rebellion (of having plotted to kill the emperor) or treason (of having followed the enemy) would be seized for the state. As these examples indicate, in the Chinese and Vietnamese codes, the wife did not enjoy equal treatment under law. And yet unlike the Chinese

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codes, the Lè Code criminal law provisions gave to Vietnamese women some special protections against criminal violations. The Lè dynasty was particularly mindful of the necessity of protecting women against even the servants of the powerful. The domestic no ty of princes and princesses who took advantage of their masters' power to marry common women by force would be subject to penal servitude, and their masters, to demotion or fine if they tolerated the wrongdoing.7 Minor orphan girls could not sell themselves without guarantors: the purchasers and the witnesses to the sale would be punished. Only orphans who had reached maturity and who lived alone in destitution would be authorized to sell themselves.8 This provision apparently was enacted to protect young women from being abducted or seduced and then sold. Also, the Lè Code provision on abortion reflects its drafters' concern to protect women from being forced to have abortions against their will.9 Under the Le Code, female offenders enjoyed certain privileges unknown in the Chinese and Nguyen codes. The Lè Code provided that when female offenders of high social standing had to appear in court, they might send representatives or be allowed to stand in court instead of sitting on the floor. Male offenders, on the other hand, had to appear in court in person no matter how high their position. 10 Even if convicted, female offenders would be exempt from certain kinds of penalty or would receive lighter penalties than men for the same offense. In the Lè Code, the penalty of beating with the heavy stick (from sixty to one hundred strokes) was not applied to women; only beating with the light stick would be administered to women, in ten, twenty, thirty, forty, and fifty strokes. In the Chinese and the Nguyen codes, although women might redeem penal servitude and exile, they were always liable for the application of the heavy stick penalty. The influence of the Lè Code on Vietnamese society was so enduring that the Nguyen Code, although as a rule punishing women as severely as men, stated that when the use of the heavy stick was specified for women, it should be replaced by the light stick. Such a provision was not made in the Ch'ing Code." In the Lè Code, punishments associated with the three degrees of penal servitude were different for men and women, and women did not have to endure their more burdensome forms. In the first degree, called male or female corvée laborers, whereas men were condemned to the public office menials, the women served as subordinate menials, garden-work menials, or silkworm-breeding menials. In the second degree, men became soldiers assigned to elephant stables while women became female slaves or serfs assigned to kitchens. In the third degree, men became paddy-farming soldiers while women became female paddy-husking

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slaves or serfs.12 Also, women were not required to wear the chains borne by men punished with exile.13 For many offenses in the Le Code a lighter penalty was imposed on women than on men. For example, a man who wore weird or sorcerous garments, bought a minor orphan girl who sold herself without a guarantor, or cohabited without bringing gifts to the woman's parents to celebrate the wedding, would be given the heavy stick penalty or would be subject to demotion and a reparation payment. A woman would only suffer the light stick penalty.14 Male children who fraudulently sold real property belonging to their parents while the latter were still alive were punished more severely than female children.15 For arson, men would be punished as if they had committed robbery, that is, with strangulation or decapitation, while women would be punished as if they had committed theft, that is, with exile only.16 For many offenses also listed in the T'ang, Ming, Ch'ing, and Nguyen codes, the Le Code punished women less severely than men while the other codes, for the same offenses, subjected them to the same penalties. For example, for fornication, the Le Code put men to death, but only exiled women, while the T'ang, Ming, Ch'ing, and Nguyen codes punished men and women with the same degree of severity.17 For theft, the Le Code provided for reduction of penalty for female offenders while the T'ang, Ming, Ch'ing, and Nguyen codes punished men and women equally.18 For trespassing at night, reduction of penalty for women was stipulated only by the Le Code.19 CIVIL

LAW

Special protection in criminal law is only one of the original features of the Le Code in its protection of women's rights; even more important were the Code's provisions on women's rights in civil matters. This legal protection of the private rights of women in the Le Code, no doubt rooted in Vietnamese culture, extended far beyond the scope of women's rights in traditional Chinese law. For the sake of clear presentation, private rights in civil matters may be classified into two categories: personal rights and property rights. PERSONAL

RIGHTS

Under certain circumstances the Le might give a woman the nullity of her contract. As noted above, the law, in order to protect the interests of a minor orphan girl who sold herself without the assistance of a guarantor against the greed of purchasers or other unscrupulous people such as

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scribes or witnesses, not only punished the purchaser but also invalidated the contract. The laws of the Le dynasty also expanded the protections women had against arbitrary divorce. Not only did they provide for three basic impediments—common to all Chinese and Vietnamese codes—to a husband's option to repudiate the wife, but they also protected the wife from repudiation if some other circumstances existed, such as the wife being in mourning for her parents or the husband for his.20 Furthermore, a 1662 decree of Emperor Le Huyen Ton promulgating forty-seven articles on moral education had one article which said that "Spouses must not leave each other because they are tired of being impoverished."21 The consequences of repudiation and divorce by mutual consent seem less humiliating for the wife in the Le Code than in the Chinese and Nguyen codes. They required, while the Le Code did not, that the wife be provided by the husband with a certificate stating the reasons for repudiation or divorce in order that she might eventually remarry.22 Even when a wife was repudiated for adultery or for taking flight from home, the Le Code did not allow the husband to marry her off or sell her to another person. This option, given to the husband in the Ming, Ch'ing, and Nguyen codes, deprived the wife of all dignity and reduced her to a salable object. 23 A woman's marital rights were also defensible in law. According to the 1662 decree just mentioned, a wife was entitled to "love and respect" from the husband and vice versa.24 Under the Le Code, if a husband neglected or abandoned his wife for another woman, he would be demoted if the wife filed a suit denouncing him.25 Thus the law recognized with justice that the personal right to have her husband's attention should not disappear with the decline of the wife's youth and grace and the appearance of a rival, and that the wife could litigate to enforce this right. The Le Code also expanded women's private rights, by granting to wives the right to ask for divorce on several grounds unknown to the other codes. First, according to article 308 of the Code, "A husband who neglects his principal wife and does not personally visit her for five months shall be deprived of his rights over his wife. (She shall be allowed to report the case to competent officials of her locale, as well as to village officials in order to have the facts publicly recognized.) If they have children in common, the above period shall be extended to one year. This provision shall not apply to persons who have to travel far away on a public mission. A husband who, after abandoning his wife, takes the liberty of arresting the man whom she remarries shall be demoted." Thus there was a curious negative prescription of a husband's rights

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over his wife. Unless traveling on a public mission, if he failed to visit her for five months (or one year in case they had children) she could sue him for divorce and remarry. And if he took revenge by arresting her new husband he would be punished. This right to file for divorce on the basis of neglect was unknown in the Chinese codes. A decree in the Ming, Ch'ing, and Nguyen codes" stated that "if a husband has disappeared or fled without returning for three years the wife shall be allowed to petition the officials for attestation and remarriage." But this decree dealt with another issue, disappearance or absence, rather than the neglect of a wife. Indeed, the commentary27 stated that the decree was applicable to a man who disappeared for having committed a mistake, or because of upheavals related to rebellion or war. If he simply went on a business trip, on a search for a relative, or for equivalent reasons, one could not say he had disappeared or fled, and the decree would not apply, whatever the number of years that had elapsed since his departure. On the other hand, with the exception of absence due to a public mission, a husband in the Le Code could not neglect his wife for other reasons, such as business trips, without incurring the risk of being sued for divorce. The Le Code used the terms sd the (in Chinese shu ch'i), which meant neglecting the wife, and ba't vang lai (in Chinese pu wang lai), which meant having no sexual relations. Thus, the grounds for a wife's divorce suit in the Le Code was clearly neglect, sexual or otherwise, grounds unknown to the other codes. Secondly, under Le law a wife might also divorce a husband who mistreated her parents. According to article 333 of the Le Code, " . . . In case a son-in-law uses abusive language against his wife's parents without reason, the fact may be reported to the authorities for dissolution of marriage." And in the Hong Dtic thien chirih thii, the other work which contains Le dynasty laws, a case is recorded in which a son-in-law was punished with eighty strokes of the heavy stick, the loss of his wife, and a reparation payment to his parents-in-law for lacking filial piety toward them.28 (The Ming, Ch'ing, and Nguyen codes punished the reviling of senior relatives, but, unlike the Le Code, did not provide for dissolution of marriage.)29 One of the important rights of a person is the right to sue to seek remedy for injustice suffered or to protect his or her interest. The Ming, Ch'ing, and Nguyen codes, in an article barring people in confinement or aged eighty or more, ten or less, or seriously disabled from bringing complaints before the authorities, also forbade women to do so, except for rebellion, great sedition, treason, impiety of children and grandchildren, or certain offenses (robbery, deceit, economic crime, murder, or injury)

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committed against themselves or persons living with them. Conversely, the Le Code's corresponding article on persons being barred from bringing suits did not mention women among those thus barred.30 E Q U A L P R O P E R T Y R I G H T S FOR WOMEN

In contrast to the Chinese and Nguyen codes, the Le Code gave daughters inheritance rights equal to those of sons. As a consequence, it also settled the issue of matrimonial property on the principle of equality between husband and wife in a way which was diametrically opposed to the incorporation of the wife's property into the husband's estate prescribed by the Chinese and Nguyen codes.31 I. Equal Inheritance Rights A woman in the Le Code had inheritance rights not only in the general estate of her parents but also in the special portion of the estate reserved for ancestor worship called "incense and fire" property (hildng hda). In addition, if she married and her husband died, she had certain rights over her husband's estate. A. Inheritance rights over the general estate. The Chinese codes and the Nguyen Code mentioned nothing about the daughter's succession rights. As a rule, in the Chinese family system, the daughters were excluded from the division of properties. They were to be married. In other words, they were to go into another family. Had they been allowed to bring properties with them, they would only have enriched the husband's family. If the father divided his estate during his lifetime, daughters who preferred to remain unmarried might by amicable arrangement be given a small portion, or one of the brothers might offer them accommodations. But they could not demand a part equal to those of their brothers.32 A decree in the Ming, Ch'ing, and Nguyen codes explicitly included only the sons and omitted the daugthers in the inheritance of the family estate.33 By contrast, the Code and other legal documents of the Le dynasty had specific articles explicitly stating that brothers and sisters would share equally in the succession of their parents' general estate. Moreover, the eldest son, except for his special role in keeping the will and other documents related to the estate and the ancestor worship property, would receive a part equal to those of his male or female siblings. Indeed, according to article 388 of the Le Code, when the father and the mother have died intestate and left landed property, the brothers and sisters who divide this property among themselves shall

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reserve one-twentieth of this property to constitute the hiiong ho'a [incense and fire] property which shall be entrusted to the eldest brother: the remainder of the property shall be divided among them. Those who are children of the secondary wives or the female serfs shall have smaller parts than those of the principal wife. In case the father and mother had left an oral will or testament the relevant regulations [on wills] shall apply. Heirs who violate this provision shall be deprived of their parts.

Paragraph 3 and paragraph 84 of the Hong DUc thien chirih thii confirm the rule of equal distribution of the general estate among all the male and female children.34 Paragraph 84 states: when parents die without having divided their estate among the children, the eldest son shall be allowed to keep the title deeds and the will; as for the real property he can only hold his portion which is equal to those of other children. He shall not unduly keep other portions. . . .

Thus, the principle of equality between male and female heirs was upheld. Under the Le dynasty, the parents' oral will or testament would be respected provided that the distribution of their estate among the male and female children was not groundlessly unjust. In case a child was victimized by an unjust distribution, he or she could file a complaint for repartition, unless he or she had been disowned by the parents on good grounds such as lack of filial piety. Hong DUc thien chirih thU, the legal document elaborating on this point of equal distribution of the inheritance, does not make a distinction between sons and daughters, treating them equally. Even more explicitly, section 269 of this document, dealing with the parents' right to disown a child who repeatedly misbehaved, clearly mentions "the partition of the estate among sons and daughters."35 As the natural corollary of the recognition of land ownership by daughters or generally by female members of a family, the Le Code explicitly singled them out for separate punishment (which was less severe than that imposed on males) in case they claimed ownership in violation of other people's ownership rights: for example, if they falsely claimed ownership of their parents' property and sold it surreptitiously36 or if they forcibly claimed ownership of land already passed to another person by a period of adverse possession or negative prescription.37 B. Succession to the ancestor worship property. In the Chinese as well as Vietnamese codes, the ancestor worship property was devolved in priority to male heirs and only in the last resort to female heirs. But while the Ming, Ch'ing, and Nguyen codes relegated the daughters to the third line position in the priority order, after not only the various sons but also

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adoptive sons, the Le Code assigned the daughters to the second line position, before adoptive sons or the brothers or sisters of the deceased, and right after the various sons or grandsons.38 Moreover, the Le Code had some special rules which constituted a derogation to the priority right of the male heirs to the ancestor worship property. When there were only daughters in the family they would be allowed to inherit the ancestor worship property. This was in contrast to the rule in the Ming, Ch'ing, and Nguyen codes which required the adoption of a male heir originating from the same clan as that of the deceased to carry out the worship of the latter, and which allowed the succession of the daughters to the worship property only if there was no such male relative in the deceased's clan.39 In addition, under the Le, even when there was a son or grandson, a female heir might be given priority right to the ancestor worship property under certain conditions. For example, because of the principle that a remarried widow became, upon joining her second husband, a stranger to her late husband's family, when she died the property dedicated to worshipping her would go to her daughter by the second husband and not to her son by the first husband. A maternal grandson, with a different family name from that of the deceased, yielded to an aunt in the inheritance of the worship property.40 C. The widow's succession to her husband's estate. Under the Le Code, when the husband of a childless marriage died, the wife not only took back her portion of the matrimonial estate but enjoyed usufruct of a major part of her late husband's portion, the smaller part being entrusted to the late husband's parents or paternal relatives as worship property. The Le Code was more lenient in its rules on inheritance by the widows of officials. It allowed the childless widow to inherit land awarded to her late husband by the state for having denounced clandestine occupation of land. There is no exactly analogous rule in the Chinese codes, but under the Ming, Ch'ing, and Nguyen codes the widows of officials received only emoluments attached to transmissible titles, and then only if there were no male heirs in the clans to inherit them. Among the male heirs, not only the couple's children but also the husband's younger brothers or nephews had to be included.41 Thus, in the Ming, Ch'ing, and Nguyen dynasties the benefits accorded to the surviving spouse went to a much narrower circle of women—the wives of officials who had transmissible titles. The wives of ordinary officials could not inherit these emoluments. Furthermore, even widows of officials having transmissible titles could inherit only if their lineage had been extinguished so that there were no male heirs even in the category of brothers or nephews.

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II. Matrimonial Estate The Chinese codes and the Nguyêh Code had no explicit rules on the property relations between spouses, except one decree which ruled that a remarrying widow had to leave all properties of her late husband's family, as well as the wedding gifts, to her husband's family. According to these codes a woman did not inherit from her own family, and in general did not bring into her husband's family estate assets of any importance. Her personality was absorbed by that of her husband; she did not possess any separate property and was not co-owner of the family estate with her husband during his lifetime. Therefore, according to some authors, at the death of the husband, the issue of settlement of the matrimonial property did not even arise42 although the widow might replace her husband in the role of family head so long as she did not remarry. On the other hand, a woman in the Lê Code was entitled to inherit property from her own family. Therefore, if these inherited properties had been absorbed into her husband's family estate, the latter would have benefitted from an "enrichment without good cause."43 Consequently, the Lê Code had a set of rules on the management of the matrimonial estate during the lifetime of the spouses and its settlement at the death of one of them. These rules sanctioned equal property rights for women. A. Settlement of the matrimonial estate at the husband's death. The Code and the related Lê dynasty legal document, Hong Dtlc thiên chihh thil, contain a number of provisions on the settlement of the matrimonial estate at the death of one spouse. Each of these provisions regulated one hypothetical case (some examples: a couple had no child and the husband died; the deceased husband had children from a previous marriage but none from the surviving spouse; a couple had a child but first one spouse and then the child died; a remarried widow had children but sold the property inherited by them. . . .). Also, to different degrees, they dealt with different types of properties such as movable property or chattels (phù vât, in Chinese fou wu), and real property (diêh sdn, in Chinese t'ien ch'an), which in turn was classified into real property originating from the husband's clan or wife's clan (phu ton diêh sdn or thê ton diêh sdn, in Chinese fu tsung t'ien ch'an or ch'i tsung t'ien ch'an) and real property newly acquired during marriage (tân tao diêh sdn, in Chinese hsin tsao t'ien ch'an). Read in combination these provisions can by systematized into a coherent régime of the matrimonial estate. According to these provisions on the surviving spouse's benefits, the husband and the wife had exactly the same rights. From the standpoint of the widow these rights

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varied depending on whether the marriage produced children or was childless. The complicated rules on the property rights of a childless widow in settlement of the matrimonial estate may be summarized in simplified language as follows. With regard to the taking of the assets, the widow would have full ownership right over all real property originating from her clan, over half of the real property jointly acquired during marriage, and over half of the movable property during marriage, and over half of the movable property that remained after servicing the various debts mentioned below. The widow would also have usufruct during her lifetime or until remarriage over certain portions of properties that belonged to her late husband (or his children, or parents, or paternal relatives). These usufruct rights covered one-third of the real property originating from her husband's clan if there was a child from the husband's previous marriage and no child in the current marriage; one-half of such property if there was no child at all and the husband's parents were not living; or twothirds of such property if there had been a child who had subsequently died and the husband's parents were dead. One-half of the property jointly acquired during marriage belonged to the husband. His childless widow had usufruct of one-third of this if he had a surviving child from a previous marriage or two-thirds if there was no surviving child. Half of the movable property acquired jointly also belonged to the husband. After death this property was first applied to servicing outstanding debts. The childless widow of a husband who had a surviving son from a previous marriage received usufruct of one-third of what remained after the paying of debts. In terms of the above assets,44 widows enjoyed the same rights as widowers. There was only one slight difference, due to custom. The usufruct of widows ceased upon their remarriage, while widowers' usufruct of their late wives' properties expired only with death. Thus, in a marriage without children, property originating from a spouse's clan never lost its original nature. Property originating from the surviving spouse's clan would always return to the survivor (in our discussion the widow), and property originating from the deceased's clan would be owned by the deceased's children (if any) from a previous marriage. If there was no child, the property would go to the parents (if living) or (if the parents were not living) to the paternal relatives for worship purposes. The portion over which the surviving spouse had usufruct would eventually return to the deceased spouse's clan. This meant that according to the Le Code, the woman always had her own property. There was no absorption of a wife's or her clan's property into her husband's estate, in contrast to the situation of women in the Chinese and Nguyen codes.

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That the wife had separate property was reflected in provisions of the Lê Code stipulating that it would be forfeited under some circumstances. According to article 401, if a woman committed adultery she would forfeit her property to her husband. Hong Dtic thiên chirih thii reports the case of an adulterous woman whose husband was indigent and busy with his official duty. She was given eighty strokes of the light stick and then strangled, and her property was turned over to the husband. 45 If the wife struck and caused a fracture to her husband or killed him, her property was also forfeited. According to article 481 of the Lê Code, "A principal wife who strikes her husband shall be exiled to an outlying region; if a fracture results, the penalty shall be exile to a distant region. Her property shall be forfeited to her husband. . . . In case the husband dies, the penalty shall be strangulation and the wife's property shall be forfeited to the husband's children or grandchildren or paternal relatives." Such a provision did not exist in the T'ang, Ming, Ch'ing, or Nguyen codes.46 With regard to payment for liabilities, equality in property rights for the Vietnamese widow was also evident in the way in which the joint matrimonial debts contracted during marriage had to be cleared. In terms of payment obligation, it did not matter whether the husband or wife originated the debts. Joint debts incurred during the lifetime of the spouses would first be paid with movable properties. Then, if these were insufficient, the debts would be divided into two parts, half to be paid with the husband's share in the estate, and half with the wife's share. (The creditors could not sue the deceased's parents or paternal relatives for this purpose.) Also, if there was riceland to service the debts, the creditors could pursue the surviving spouse for repayment: the wife, if the husband died, and the husband, if the wife died. In no case could they sue the deceased's parents, brothers, or cousins.47 Thus, debts contracted by the wife constituted a liability to the family estate in the same way as the debts incurred by the husband. The wife thus had full legal capacity to make valid acts. Thus, from both standpoints—the taking over of assets and the payment of liabilities in settling the matrimonial estate of a childless marriage—the Lê Code gave the Vietnamese wife equality in property rights vis-à-vis her husband, a situation unknown in the Chinese and the Nguyên codes. The legal situation was much simpler for widows with children. Under the Lê, in a marriage with offspring, there would be no settlement of the matrimonial estate when one spouse died. The administration of the family estate would remain in the hands of the surviving spouse, whether husband or wife, until death. This was true even if the surviving wife remarried. The power exercised over the family estate by a widow with children,

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even after remarriage, was an important difference between the Le Code and the Chinese and Nguyen codes. The latter codes deprived the remarrying widow of all property rights. The Le Code allowed her to administer the minor children's property (bequeathed by the late husband) even after remarriage. She could even sell such property, provided that good reasons for sale had been given to a representative of the late husband's paternal relatives and that the expenses necessitating the sale had been verified by the authorities. The Le Code states that: Whenever, after her husband's death and while her children are still minors, the remarried widow privately sells the real property belonging to these children, she shall receive fifty strokes of the light stick; the sale price shall be returned to the purchaser and the property to the children. The sale shall be authorized, however, if there is a good reason, therefore, which has been explained to the representative of the husband's paternal relatives, and if the expenses necessitating the sale have been verified by the authorities. 4 '

This article indicates that the widow, even after remarriage, preserved her administering powers over the property of her children by the previous marriage. A widow who remained unmarried would naturally have at least as much administrative power over the family estate as a widow who remarried. This situation was not provided for specifically in the Le Code, but can be deduced from the principle that "he who can do more can do less," and from another article of the Code which banned any attempt by the children to sell the parents' property during their lifetimes.49 The widow's administrative powers over the family estate were a counterpart of her financial obligations to pay the husband's debts, and to provide for the other members of the family such as children, the husband's parents, secondary wives, and nd ty (slaves or serfs). Such powers were considered so proper that they have remained customary in Vietnam even to the present time. Vietnamese custom permits the widow with children to have the right, in case of intestate death of her husband, to dispose of the properties in the matrimonial estate deemed to have become her children's permanent properties, without even asking permission from her late husband's family.50 Under certain circumstances widows might even deprive their children of inherited property by disowning them on grounds of their being worthless scoundrels. This power was mentioned in Hong Diic thien chinh thii: Whenever a young widow is unable to adhere to the moral duty of following her child after her husband's death and wishes to disown him on the pretext of his worthlessness, the law being against a widow living by herself, the yamen to

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which her complaint is sent shall have to refuse it in order to stop all fraudulent schemes. However, if the child is a well-known scoundrel who does not follow the moral teachings and his mother has reasons to fear she could become liable for him, she should be allowed to make, jointly with any of his uncles or the family head, a statement disowning him, in which statement she shall sign her family and personal name. If a widow, reaching old age without any plan for remarriage, decides, after much agony, to disown a child who has repeatedly committed wrongdoings, she shall be allowed to make a statement to that effect enumerating all grievances, and to deposit it at the local yamen for certification, in order to avoid all ulterior liability."

In short, the property rights of the widow in the Lê Code were most extensive.52 What about the property rights of the wife when both spouses were living? B. The management of the matrimonial estate during the lifetime of both spouses. The Lê Code had no explicit rule directly concerning the management of the matrimonial estate during the lifetime of both spouses. But we can deduce some general principles from the legal provisions already known and from other documentary evidence. Even at the death of one spouse, real property originating from his or her clan would not become the property of the surviving spouse. Therefore during the lifetime of both spouses, the husband, for example, could not sell real property originating from the wife's clan without her consent. As for real property newly acquired during marriage, any transaction regarding such property required the signatures of both spouses. In Legal Forms in Use under the National Dynasty [of the Lê] (Quôc triêù thvt khe), a document promulgated in the period 1522-1527," there are a number of sample forms concerning the sale, mortgage, and exchange of real property. The opening sentences always state: "I . . . of . . . prefecture, . . . district, . . . village, . . . hamlet, . . . official title . . . (or social status . . .), together with my principal wife (or secondary wife) named . . ." [emphasis added]. At the bottom there is always a place for the signatures or fingerprints of the parties, the witnesses, and the scribe. The sample forms for the sale or emancipation of serfs also require the wife's participation. Only the sample form on selling a chattel, a vessel in this case, does not include the wife's name. The sample form for a testament starts with the sentence: "In the . . . prefecture, . . . district, . . . village, . . . hamlet, we, the father, named . . . , official title . . . (or social status . . .), and the mother [emphasis added], named . . . , (official function, if any), feeling that

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our health has become deteriorated . . . do hereby establish this testament. . . ." The articles on the testament in the Code and other legal documents of the Lê refer constantly to both the father and the mother.54 The Lê Code did not explicitly specify the position of the secondary wives, but present-day Vietnamese custom, no doubt dating back to the Lê dynasty, recognizes their separate property.55 And in Lê dynasty sample forms on sale or mortgage of real property, they participated with the head of the household in the management of jointly acquired property. As a French scholar said of the matrimonial régime of the Lê: This is a profoundly egalitarian régime, based on equality between clans and equality between spouses, in personality and in property relationship: equal contribution; joint profit; solidarity; shared charges; joint debts; equal power of direction; equal partition; withdrawal of separate properties.56

By contrast, the Ming, Ch'ing, and Nguyên codes embodied a rigidly patriarchal family system and circumscribed narrowly the property rights of the married women. In these codes there are only two provisions related to the question of matrimonial estates. Because of the dearth of rules directly bearing on women's property rights, an understanding of the matrimonial régime must be derived from an analysis of the whole family system in these codes. One of the two directly pertinent provisions stated that during the parents' lifetime children could not divide the family estate and register in separate households, except when allowed to do so by the parents. 57 According to the other decree (or substatute), a childless widow who did not wish to remarry had to appoint a person to serve as worshipping heir in place of her deceased husband. If she remarried, the property of her husband's family and the wedding gifts would remain in the ownership of the husband's family.58 Under the Ming, Ch'ing, and Nguyên codes, during the lifetime of the husband the principal wife would be treated respectfully by the junior members of the family, who had to obey both father and mother, but she was an alieni juris and thus similar in her status to inferior family members with regard to the family head (gia trtidng, or in Chinese chiachang). She had no personal property and did not participate in the administration of the family estate. In a divorce by mutual consent, she could take only her clothes and trousseau. 59 In widowhood, she had powers over the family estate only if she remained a widow and thus took her husband's place as family head. She would have managerial powers over the family estate until the appointed worship heir reached the age to manage it, or, if she had children, up to the time when she consented to divide the estate among them. She might otherwise oppose such division of property.60 As under the Lê Code, these powers were not merely nor-

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mal usufruct. If necessary the widow was entitled to sell some property with the assistance of the mature sons or the clan head. The rationale for this special usufruct of the widow was her obligation to support the children, the secondary wives, and the husband's parents. But unlike the Lé Code, under the Chinese and Nguyéñ codes the widow who remarried would have to leave her late husband's household almost empty-handed.61 She was not entitled to withdraw any assets from the matrimonial estate and could not take even the trousseau unless authorized by her husband's family. Moreover, she had to get permission from her husband's family for remarriage.62 For secondary wives also, the Chinese and Nguyéñ codes did not recognize meaningful status or property rights. While the principal wife called her husband "husband," the secondary wives called him "family head" and were inferior to the principal wife. If they committed crimes against the husband, they would be punished more severely than the principal wife guilty of the same crime, and if their husband committed crimes against them, his punishment would be less severe than had he committed the same crime against the principal wife.63 Sons of secondary wives might inherit the family estate but these women had to relinquish all authority over their children to the principal wife. As for property rights, they had separate properties but could not take over the management of the husband's family estate even if the husband and the principal wife had died. If this happened, they were simply to be supported by their husband's family.64 According to some observers, the plight of women under the traditional Chinese codes in general, and the Ch'ing Code in particular, led to frequent suicide. A. H. Smith wrote in 1899: One of the weakest parts of the Chinese social fabric is the insecurity of the life and happiness of women. . . . Every year thousands upon thousands of Chinese wives commit suicide, tens of thousands of other persons are thereby involved in serious trouble. . . . All of this is the outcome of the Confucian theory that a wife has no rights which a husband is bound to respect. 65

The Nguyéñ Code, being a copy of the Ch 'ing Code and therefore paying scant attention to the interests of women, did not continue the Vietnamese tradition of upholding the women's interests that the Lé Code had pursued. H I S T O R I C A L I M P O R T A N C E OF THE

Lé

Code

The Lé Code, although adopting many articles from the T'ang Code and some from the Ming Code, was, in many sections and especially in the provisions on the status of women, a clear-cut effort to break away from

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intellectual vassalage to Chinese civilization. Much more original and more genuinely Vietnamese than the Nguyen Code, the Le Code was a strong reaction against the patriarchal family system considered a model by the traditional Chinese codes. Under it Vietnamese women enjoyed a much better status than did their Chinese sisters. Better protected by criminal law provisions than their Chinese counterparts, Vietnamese women under the Le were also entitled to personal rights and extensive property interests that their husbands as well as their in-laws had to respect. The rigid patriarchal family ideal in which the family head was pater familias was modified to protect the individual interests of the women in their role as daughters or wives. In this area of rights for women, the Le Code compared favorably even with Anglo-American law of the nineteenth century. In the Law of Baron and Femme (1816), Tapping Reeve described the legal position of wives and husbands under English common law and those statutes generally adopted by the American states: The husband, by marriage, acquires an absolute title to all the personal property of the wife, which she had in possession at the time of marriage. . . . These, by marriage, become his property . . . and such property can never again belong to his wife . . . unless it be given to her by his will; and in case of the death of the husband, this property does not return to the wife, but vests in his executor.66

The Le Code is of especial importance because its influence was so long-lasting. Nineteenth- and twentieth-century custom among the Vietnamese people continued to follow its prescriptions. Even when the French imposed their colonial rule on Indochina, their courts had to adopt from the Le Code some ideas which ran counter to the Nguyen Code then in force. Finally, later codification efforts in Vietnam incorporated the custom which was embodied in the Le Code. The people in modern Vietnam have remained faithful to the tradition embodied in the Le Code. As many French scholars have demonstrated, at the time of the French arrival in Vietnam in the last quarter of the nineteenth century, living traces of the Le Code's legal concepts and principles concerning women's rights existed in the customs of the population. Such legal concepts continued down to the 1950s. The Vietnamese people refused to apply a number of provisions in the Nguyen Code and continued to adhere to those in the Le Code. Camille Briffaut wrote: The Code of Gia Long is an anachronism and a mistake in legislation; it was never applied in its civil prescriptions by the Annamese people. . . . I would say that the greater part of the existing legal customs conform to the law of the Le, and still faithfully follow it.67

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Robert Lingat pointed out that in the 1950s people continued to use legal forms dating back to the Lé dynasty in which a distinction was made between "the part of the property inherited from parents or grandparents" and "the part of property newly acquired," a distinction important for the settlement of the matrimonial estate under the Lé but supposedly no longer so in the mid-twentieth century. He concluded that "The customary matrimonial patterns finally won out over the new effort at sinicization symbolized by the promulgation of the Gia Long code."68 Popular custom varied from the southern part of Vietnam (known under the French as Cochinchina) to the northern part of the country (known as Tonkin), but it generally conformed to the Lé Code tradition of requiring the wife's signature or consent in property disposal and permitted her, upon divorce or the death of her husband, to withdraw her separate property which had originated from her family. According to the customary practices in the southern part of Vietnam, the husband always asked for his wife's consent when disposing of her property, and people would not buy such property if not sold by both spouses; thus, the property originating from the wife's clan was still recognized by custom.69 Moreover, in legal forms (sale, mortgage, loan, gift), the wife's name always appeared next to the husband's. 70 Lasserre, an author whose Proposed Civil Code for the Vietnamese was partly incorporated in the Short Civil Code (Précis de législation civile) for Cochinchina in 1883, reported that the matrimonial régime in southern Vietnam gave even more status to the wife than the French community property régime in that the husband was not the master and lord as in French law, for he had to obtain his wife's consent in any act of importance such as loan, acquisition, or disposal of property." Custom in the northern part of Vietnam also sanctioned the Lé Code principles of equality in property rights and collaboration in property management between husband and wife. In 1927, a Consultative Commission on Customary Law conducted an inquiry and reported that during the lifetime of both spouses, the régime was one of community property in which both the husband and the wife signed on any sale of real property; that at the death of one spouse, the community property régime continued with the surviving spouse, whether wife or husband; and that in the countryside, the wife's parents used to give the couple, for ultimate disposition to the children, real property which would, however, revert back to the parents if the couple was childless or the wife died or was repudiated or divorced.12 The French court system in Indochina during the colonial period consisted of jurists trained in the Civil Code system. Therefore, they consid-

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ered the statutory law in force as the rrfOst important source of law. The French promulgated the 1883 Short Civil Code for Cochinchina. This Code, however, only had provisions on personal status (birth, death, marriage, domicile) and family relationship (filiation, adoption, minority) and had no stipulations on subjects such as inheritance, matrimonial estate, and contract. In Central and North Vietnam, the Civil Codes were promulgated only at a much later time, in the 1930s. In other words, the Nguyen Code was the code in force for much of the French colonial period. Moreover, in Cochinchina, for subjects not regulated by the 1883 Short Civil Code, the French courts still applied the Nguyen Code. But while they applied this Code as the statutory law in force in Cochinchina, they had to make concessions to the influence of customary law as embodied in the Le Code. On the question of inheritance, these courts were firm on one important point, the right of women to inherit properties (which was not recognized in the Nguyen Code).11 On the question of the matrimonial estate, there was what a French law professor in Hanoi called a "struggle of eighty years, within the French judicial system, between the Chinese conception of the family and the genuinely Vietnamese conception."74 During this "struggle," the courts sometimes recognized property acquired during marriage as the community property of the husband and wife in conformity with the principles of the Le Code; but most of the time they denied the existence of such community property on the basis of the Nguyen Code's principle that the husband's estate absorbed all property acquired during marriage.75 On the other issue, the courts changed position many times, sometimes denying and sometimes recognizing the wife's ownership right over the separate property she received through inheritance or donation. Moreover, even after the Second Chamber of the Saigon Court of Appeals had definitely opted for refusal to recognize separate property for the wife, the First Chamber of the same court continued to recognize such a right. Thus, the Le Code's influence on the courts concerning this issue of the wife's separate property was stronger and longer lasting than its impact on the issue of community property, although not undisputed. 76 The codification efforts in Vietnam since the 1930s have incorporated many features of the Le Code. In 1931, the Civil Code for North Vietnam (Tonkin) was promulgated. Its drafters reported that popular customs identified by a Consultative Committee on Customary Law77 had been taken into account and incorporated in the Code, especially those touching particularly distinctive Vietnamese institutions such as the family relationship, succession to the general estate, the hiidng hod (incense

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and fire property), the composition of the matrimonial estate, the role of the spouses in property relations, and the widow's legal status.78 The Civil Code for Central Vietnam (Annam), promulgated during the period from 1936 to 1939, reproduced most of the Civil Code for North Vietnam, with some revisions and improvements. These codes adopted, for the women's property rights, many features of customary law dating back to the Lê Code. According to one author, these codes constituted a break with the Chinese-inspired Gia Long Code and a return to the institutions of custom. They did not create any trouble but were welcomed by the population of North and Central Vietnam because they had "deep roots in the popular conscience."" However, they followed the French Civil Code's stipulation that the married wife did not have legal capacity and her husband was the administrator of the matrimonial estate during his lifetime. This legal incapacity was abolished by the 1959 Family Law of the Republic of Vietnam (South Vietnam) which upheld the community property and equality of powers between husband and wife. This equality continued to be recognized in South Vietnam by the succeeding statutes, the 1964 Family Law and also the Civil Code of 1972. As in the Lê Code, the latter two statutes also clearly defined the separate property of each spouse as distinguished from the community property acquired during marriage.80 In the Democratic Republic of Vietnam, the Government of Hanoi promulgated on December 29, 1959, the Law on Marriage and Family, which gives the woman full legal capacity and equality (in entering into contracts, in using and disposing of property) and sanctions the community property régime.81 This law is still in force in the unified Socialist Republic of Vietnam. For more than five centuries the Vietnamese customary commitment to granting equal property rights to women has withstood the influence of Chinese example, always in practice and at times in law as well. During the era when social custom was accorded the backing of the statutory legal system this trait caused the law to concern itself in an important fashion with civil law regulation and the protection of private interests in ways supposedly alien to Chinese-patterned East Asian legal systems. In defending women's rights the Vietnamese were early leaders in a struggle which has continued down to the present. In the introduction to a 1972 symposium on the status of women in today's world, Professor Ruth Bader Ginsburg of the Columbia Law School remarked that although the fundamental idea that men and women should be given the same rights, obligations, and work assignments in society has already been embraced in a

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number of countries . . . the gulf between principle and practice remains enormous. 82

No doubt the gulf will remain a serious problem, until and unless the idea of women's equal rights achieves the kind of customary social acceptance which forms such a striking feature of traditional and modern Vietnamese society. It is true not only that custom is a fundamental source of law, but also that law without the support of custom is a weak and fragile creature. APPENDIX

Widow's Ownership and Usufruct Rights The Le Code, article 375: "When one spouse of a childless couple dies intestate, and the distribution of real property to the surviving spouse and the reservation of a portion thereof for worshipping the deceased are not in conformity with the law, the persons responsible shall be punished with fifty strokes of the light stick and demoted one grade, and the representative of the deceased's paternal relatives shall lose his function as manager of worship property. "(The law provides: [When a husband dies,] the real property originating from the husband's clan shall be divided into two parts. One shall be entrusted to a representative of the deceased's paternal relatives for worship purposes. The other shall be given to the wife to be used for her support during her lifetime, shall not become her private property, and shall be returned to the husband's clan upon her death or remarriage. If the deceased's parents are living, they shall take back the totality of the clan property. In case a wife dies, her husband shall enjoy the same right, the only difference being that he shall not have to return the property after remarriage. "Real property acquired during marriage [in case the husband predeceases] shall be divided into two parts: one shall be allotted to the wife with full ownership; the other shall be allotted to the [deceased] husband. The latter part shall be in turn partitioned into three portions; one portion shall be devoted to worshipping the husband and maintaining his tomb and shall be owned by the husband's parents or, if they have died, managed by a representative of the husband's paternal relatives; two portions shall be entrusted to the wife for her support during her lifetime, shall not become her own property and, upon her death or remarriage, shall be added to the portion devoted to the maintenance of the husband's tomb. In case a wife dies, her husband shall enjoy the same right, the only difference being that he can keep the property even after remarriage.)"

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This article 375 did not mention property originating from the surviving wife's clan, but it was evident that it would remain her own property. This article 375 was an abbreviated version of a statute in Hong DUc thien chirih thxi, paragraph 258, entitled: "Decree on a husband or wife deceased without children," which enumerated movable properties (gold, silver, silk and materials of all kinds, grain, beds, mats, pottery, trays) and stipulated that they should serve to cover expenses for worshipping the deceased (including tomb maintenance) and to pay for the feasting debt (meals for guests on the occasion of funerals and anniversaries), with the remainder to be given to the surviving spouse. For the details in Hong DUc thien chirih thxi, paragraph 258, on clearing the joint debts of the spouses, see text accompanying note 47. At this point, in discussing the widow's ownership and usufruct rights in the matrimonial estate, we need to cite article 374 of the Le Code, which says: "When a husband who has two children with his former principal wife and none with his later one, or a wife who has children with her former husband but none with her later one, predeceases the later spouse intestate, if the distribution of real property between the children of the former wife or the children of the former husband on the one hand, and the later wife or the later husband on the other, does not conform to the law, the persons responsible shall be punished with fifty strokes of the light stick and demoted one grade. "(The law provides: When [the husband dies and] the former wife has one child but the later wife none, the real property originating from the husband's clan shall be divided into three parts: two shall go to the child of the former wife and one to the later wife. However, when the former wife has two or more children, the part going to the later wife shall be equal to that of one child. The part allocated to the later wife shall be used to support her during her lifetime, shall not become her own property, and shall be returned to the husband's child(ren) when she dies or remarries. When a wife dies, her later husband shall enjoy the same right, the only difference being that he shall not have to return the property after remarriage. "[In case the husband predeceases,] real property newly acquired during marriage with the former wife shall be divided into two parts: one shall be allotted to the former wife and shall be allocated to her children and one to the [deceased] husband, to be divided in the proportion stated above. "Real property newly acquired during marriage with the later wife shall be divided into two parts: one shall go to the [deceased] husband, to be divided in the proportion stated above, and one to the later wife with full ownership.

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"In case a wife dies, her [later] husband shall enjoy the same right. "However, if the parents of the deceased are still living, the case shall be decided differently.)" This article 374 does not mention the property originating from the surviving spouse's clan, but it is evident from the above principles that it would remain her own property. This article 374 was an abbreviated version of a statute incorporated in Hong Dtfc thien chirih thil, paragraph 259, which regulated both the dividing of real properties (article 374) and movable properties. According to HorigDtic thien chirih thil, 259, movable properties were to cover the expenses for worshipping the deceased and paying the feasting debt. The remainder was to be divided into two parts: the first half for the wife, and the second half for the late husband (subdivided among the wife, the children], and the deceased himself). If the portion of the deceased was not enough for worship, all the second half just mentioned would be applied to worship. On the other hand, if the portion attributed to the deceased was more than enough for worshipping him, the excess would be shared equally by the child(ren) and the wife. She, however, would have to return to the child(ren) upon remarriage whatever portion she enjoyed from the second half just mentioned. In short, the wife had ownership of over half of the movable properties and enjoyed usufruct of one-third of the other half. Article 376 of the Le Code regulated a situation which was slightly differently from that in article 375—a widower who had a child that died subsequent to the wife's death. The article stated: "When a spouse of a couple with a child dies, and subsequently the child dies also, if the distribution of real property to the surviving spouse and to the representative of the deceased's paternal relatives is not in conformity with the law, the persons responsible shall be punished with fifty strokes of the light stick, demoted one grade, and shall forfeit their parts in the estate. "(The law provides: [When the wife predeceases,] the wife's real property shall be divided into three parts: two shall go to the husband and one to a representative of the deceased's paternal relatives. If the deceased's parents are living, the property shall be divided into two parts, one going to the husband and the other to the deceased's parents. The husband's part shall be used for his support during his lifetime, shall not become his own property, and shall, upon the husband's death, be returned to the deceased's parents or paternal relatives. In case a husband predeceases, his wife shall enjoy the same right, but she shall return the property in case of remarriage.)" In the discussion, we hypothesize, for our purposes, that the husband predeceases and then state in a simplified manner the widow's right

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according to this article no. 376. This article did not mention real property acquired during marriage or real property originating from the surviving spouse's clan, but in all probability they would have been settled according to article 375.

NOTES

Works frequently cited have been identified by the following abbreviations: CLTC:

Quôc triêù chiêû lênh thiên chirih (The national dynasty's edicts and decrees promulgated for good government). HDTCT: Hong Diic thiên chirih thU (The book of good government of the Hong Difc reign). Lê Code: Quôc triêù hihh luât (Penal code of the national dynasty). 1. Sir John Salmond, Jurisprudence (London: Sweet and Maxwell, Ltd., 1924), pp. 208-209. 2. From Nguyên Manh Tifo'ng, "L'Individu dans la vieille cité annamite: Essai de synthèse sur le Code des Lê," (Thèse pour le Doctorat en Droit [Montpellier: Imprimerie de la Presse, 1932]), p. 106. 3. As part of the East Asian Legal Studies program at Harvard Law School, in three and a half years from 1975 to 1979, Drs. Nguyên Ngoc Huy, Trân Van Liêm, and this author translated and annotated the Penal Code of the National Dynasty (Quôc triêù hihh luât), popularly known as the Hong Dite Code. This is the first translation into English, accompanied by (a) annotations incorporating comparisons with China's T'ang, Ming, and Ch'ing codes and Vietnam's Nguyên Code, historical facts, cases, and related laws and decrees; (b) the usual appendices, glossary, and index; and (c) an Introduction putting the Code in its legalhistorical context and summarizing its original features. The Code had 722 articles. Hereafter, the Code will be referred to as "the Lê Code" and the article numbers will be the ones in our translation. The only other translation of the Lê Code into a Western language is Deloustal's translation into French entitled "La Justice dans l'ancien Annam, traduction et commentaire du Code des Lê," Bulletin de l'École Française d'Extrême-Orient (or B.E.F.E.O.) (Hanoi) 8 (1908), 9 (1909), 10(1910), 11 (1911), 12(1912), 13 (1913), 19(1919), 22 (1922). However, Deloustal's translation contains a number of errors as pointed out in the Introduction to our translation. Also, his version of the Code does not contain article 219. Therefore, from that article on, the ordinal number of the articles in his translation are one integer less than those in ours. Our translation and annotation of the Lê Code, it is hoped, will be published soon. The T'ang Code referred to in this study is T'ang lu shu-i (The T'ang code and commentary), compiled by Ch'ang-sun Wu-chi (Taipei: Commercial Press, 1973). Hereafter cited as the T'ang Code. Reference to the Ming Code is to Ming lu chi chieh fu li (The Ming code with commentaries and supplementary regulations) (Peking: Hsiu T'ing Fa-lii Kuan, 1908). Hereafter cited as the Ming Code. References to the Ch'ing Code are to the translation by Sir George Thomas Staunton, Ta Tsing Leu Lee, Being the Fundamental Laws and a Selection of Supplementary Statutes from the Penal Code of China (London: Cadell and Davies, 1810). Hereafter cited as the Ch'ing Code. Reference to the Nguyên Code

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is to the translation by P. L. F. Philastre, Le Code annamite, 2 vols. (Paris: E. Leroux, 1909). Hereafter cited as Philastre, Le Code annamite, or as the Nguyêfi Code. 4. Even before the 1000-year period of Chinese domination (111 B.C.-939 A.D.), Vietnam had some kind of indigenous law code as noted by General Ma Yiian in a memorial to the Han Emperor. The Ly dynasty (1010-1225) codified its Hinh thtf (in Chinese Hsing shu) in 1042; the Trân dynasty (1225-1400) issued its Quôc triêii thông chê'fKuo ch 'ao t'ung chih) in 1230 and its Hinh luât thU (Hsing lu shu) in 1341. All these documents are no longer extant. According to Lê Quy Dôn (1726-1784), all Vietnamese books were confiscated by General Chang Fu during the Ming occupation of Vietnam and brought to the Chinese capital. See E. Gaspardone, "Bibliographie annamite," Bulletin de l'École Française d'Extrême-Orient 34 (1934): 7-10. 5. The Nguyêfi Code preserved the 397 main articles, 30 supplemental articles on analogy, and most of the substatutes of the Ch'ing Code, dropping only 39 articles of the Chinese code. The Nguyêfi Code added one article and a few decrees of its own. 6. Professors Bodde and Morris stressed that "matters of a civil nature were either ignored entirely [by traditional Chinese law] or were given only limited treatment within its penal format. . . ." (Derk Bodde and Clarence Morris, Law in Imperial China [Cambridge, Massachusetts: Harvard University Press, 1967], p. 4). Professor William C. Jones, after studying the Ch'ing Code, came to the same conclusion: "The essential elements of our [civil] law have no legal significance whatever in China" ("Studying the Ch'ing Code—The Ta Ch'ing lii-li," American Journal of Comparative Law 22 [1974]: 356-357). In China civil law matters might come to trial courts not infrequently. See the case study on two districts on Taiwan in David C. Bauxbaum, "Some Aspects of Civil Procedure and Practice at the Trial Level in Tanshui and Hsinchu from 1789 to 1895," Journal of Asian Studies 30 (1971): 255ff. Still no one could deny the overwhelmingly criminal orientation of the codes. Down to Ch'ing times substantive rules on contracts (especially commercial transactions), property, and inheritance were mainly customary practices. See Bauxbaum, ibid., pp. 262, 267; Jacques Gernet, "La Vente en Chine d'après les contrats de Touen-houang (IX e -X e siècles)," T'oung Pao 45 (1957): 295-391, especially pp. 297-298, 307, 310, 336; George Jamieson, Chinese Family and Commercial Law (Shanghai: Kelly and Walsh, 1921), especially pp. 1, 3, 12, 26; and Sybille van der Sprenkel, Legal Institutions in Manchu China (London: Athlone Press, 1962), chapters 7 and 8, especially pp. 103-111. 7. The Lê Code 336. 8. The Lê Code 313. 9. The Lê Code 424. 10. The Lê Code 709. 11. ". . . i f [women] are condemned to the light stick, they must undergo this penalty; if they are condemned to the heavy stick, from sixty to one hundred strokes, the heavy stick should be replaced by the light stick penalty" (Philastre, vol. 1, p. 71). Decree I following article 1: "Concerning female offenders punishable with the light or heavy stick who do not fall into cases where redemption of penalty is permissible, if their penalty is the light stick up to fifty strokes, this penalty shall be applied; but if they are punishable by the heavy stick, from sixty to one hundred

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Men

Women

Male corvée laborers (dich dinh)

Female corvée laborers (dich phu)

Public office menials (thudc dinh)

Subordinate menials (thtiphu)

Army menials (quàn dinh)

Garden-work menials (vièti phu)

Village menials (xä dinh)

Silkworm-breeding menials (tang that phu)

63

Heavy-work menials (khao dinh) Soldiers assigned to elephant stables (tüdng pMóhg binh) Paddy-farming soldiers (chi/ng dien binh)

Female slaves or serfs assigned to kitchens (xuy that ty) Female paddy-husking slaves or serfs (thung that ty)

strokes, the heavy stick penalty shall be replaced by the light stick" (Philastre, vol. 1, p. 111). 12. In the Le Code, the no ty (slaves or serfs) were entitled to have property (arts. 387, 407) and the sons of a ty and her master had inheritance rights in the master's estate (art. 388). Nor could their master kill them with impunity. Therefore, no ty, whether belonging to the state, like the criminals in the table above, or privately owned, had a better status than slaves in the Western world. We are reluctant to use the term slaves to translate no or ty. Moreover, they were also different from bondservants (diert conhan) who worked with remuneration for a period to pay off their debts, or the domestic servants (gia dich). We leave it up to the readers to make their choice between the two terms "slaves" or "serfs." 13. The Le Code 1. 14. The LeCode 640, 313, and 314. 15. The Le Code 378. 16. The LeCode 617. 17. On adultery: the Le Code 401; the Tang Code XXVI.22, Vol. Ill, p. 38; the Ming Code XXV. 1, 1 a-b; the Ch 'ing Code 366 and the Nguyen Code 332. On incest: the Le Code 406; the T'ang Code XXVI.24-25, Vol. IV, p. 39; the Ming Code XXV.3, 6a-b; the Ch 'ing Code 368 and the Nguyen Code 334. 18. The Le Code 429; the T'ang Code XIX. 13, Vol. Ill, p. 64; the Ming Code XVIII. 16, 34a; the Ch'ing Code 269 and the Nguyen Code 238. Also the Le Code 441; the Ming Code XVIII.19, 42b-43b; the Ch'ing Code 272 and the Nguyen Code 421. 19. The Le Code 450; the T'ang Code XVIII.9, Vol. Ill, p. 57; the Ming Code XVIII.24, 70a-b; the Ch 'ing Code 277 and the Nguyen Code 246. 20. This is derived from another legal document called Hong Dtfc thien chirih thii (The book of good government of the Hong Diic reign), trans, by N. S. Giac (Saigon: Nam Ha Printing House, 1959) (hereafter cited as HDTCT), paragraph 106 (promulgated in 1494): "Whoever is in mourning for his parents but repudiates his wife shall be condemned for lack of filial piety." Also paragraph 107 (1494): "A wife who is in mourning for her parents could not be repudiated in a fit of anger, although she may be guilty of reckless sexual behavior or shouting in a high voice. Whoever violates this ban shall be condemned for breaking the mat-

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rimonial bond and be given eighty strokes of the heavy stick with a one-degree reduction in penalty. In extreme cases, repudiation shall be permitted." The three basic impediments to wife repudiation in all Chinese and Vietnamese codes were: The wife had mourned for the husband's parents; the couple had become rich after marriage; or the wife's parents were alive when she married but she now had no relative to return to if repudiated. 21. From Quôc triêù chiêti lênh thiên chiñh (The dynasty's edicts and decrees promulgated for good government), trans, by N. S. Giac (Saigon: Saigon Law School, 1961) (hereafter abbreviated as CLTQ, pp. 278-299 (article 4). 22. Robert Lingat, Les Régimes matrimoniaux du Sud-Est de l'Asie: Essai de droit comparé indochinois, vol. 1 (Hanoi: École Française d'Extrême-Orient, 1952), p. 20. Hereafter cited as Lingat, Les Régimes matrimoniaux. 23. When a wife committed adultery, the Le Code 401 punished her by exile, but the Ming Code XXV. 1, 1 a-b, the Ch 'ing Code 336, and the Nguyen Code 332 permitted the husband to keep her or else to marry her off or sell her to another person (provided the latter was not her accomplice in adultery). When a wife took flight from home, the Lê Code 321 condemned her to penal servitude as a slave or serf assigned to kitchens and then returned her to the husband; the Ming Code VI. 17, 37b, the Ch 'ing Code 116, and the Nguyéñ Code 108 allowed her husband to sell her. 24. Same decree noted in (21), article 4: "Spouses must love and respect each other. . . ." 25. The Lê Code 309. 26. Decree II following the Nguyéñ Code 108 and Hsüeh Yün-sheng, TU li ts'un i (Doubtful thoughts on perusing the substatutes) (Taipei: Chinese Materials and Research Aids Service Center, 1970), vol. II, p. 312. 27. In the Nguyéñ Code 108. 28. HDTCT, par. 294. 29. The Ming Code XXI.5, p. 4a-b; the Ch'ing Code 328; and the Nguyéñ Code 291. 30. The Ming Code XXII.8, 37b; the Ch'ing Code 339; and the Nguyéñ Code 308. The corresponding article in the Lé Code was 507. 31. The T'ang Code VI.8, Vol. II, p. 42-43; the Ming Code 1.40, 90a-b; the Ch 'ing Code 38; and the Nguyéñ Code 37. 32. P. Boulais, Manuel du code chinois (Shanghai: Variétés sinologiques series, 1924), no. 417; also cited in Lingat, Les Régimes matrimoniaux, vol. 1, p. 17. It should be noted that in some periods, according to customary law unmarried daughters in China might receive a half share. 33. The first decree following the Nguyéñ Code 83 and appearing on Tu li ts'un i, vol. 2, p. 259: "For sons of the principal or secondary wives, except for the extendible privileges [inheritable title and privileges] which should go first of all to the principal son or principal grandsons, in the partition of family property one should not inquire whether they were born of the principal wife, the secondary wives or the ty (pei). Only the number of sons shall be taken into account in the equal distribution." 34. Par. 3 was identical to art. 388, except for two small differences: some characters in the handwritten copy of HDTCT are missing, and there is an explicit reference in the paragraph to the respect to be paid to the parents' oral will or testament. 35. On the unjust distribution of property by the parents, subject to possible

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repartition, HDTCT, pars. 85 and 90 (statutes promulgated probably in 1471) and par. 102 (promulgated in 1461) state, respectively: [85:] Whenever the father and mother, because of their dislike for any one of their children or grandchildren, have distributed unequitably their real property and given some more than the others, and later a complaint is filed about the matter, the situation may lead to the establishment of a new will and new title deeds. [90:] Whenever the father and mother have distributed unjustly their real property, ponds, money, and chattels, if a child receiving a smaller portion addresses a complaint to the authorities, the latter shall act upon it without having to respect the preexisting distribution. [102:] Whenever the father and mother have established a will and title deeds, and have given big portions to some children and small ones to others, a new equal distribution may be made provided that unanimity is reached among them. If the eldest son refuses to proceed to this new partition, forcing the disadvantaged children to file a complaint, he shall be punished. According to HDTCT, par. 269 (promulgated in 1474 as a "Decree on Disowning Children Who Violate the Law"): Those children and grandchildren who violate the law, who indulge in drinking, lovemaking, gambling, cockfighting, hunting, chess-playing, sexual intercourse, and vagrancy on public roads, or who revile their parents, grandparents, or relatives shall be considered as belonging in the category of offspring who ruin families. The parents of such a child shall endeavor to educate him (her) day and night. If he (she) still refuses to follow the moral teachings, fails to correct his (her) mistakes, and continues to disobey his or her parents' orders, the latter shall enumerate all the grievances against him (her) in a statement for disowning him (her) as a stranger. This statement shall be deposited for certification at the local yamen and their native village. If later on, the child violates the law and is prosecuted, the parents shall not be held liable for his (her) acts. When in the weakness of old age, the parents make a will to partition their estate among their sons and daughters [emphasis added], the disowned child shall not be entitled to any part thereof. If the partition of the estate, not determined by the parents, is later implemented by a distribution agreement among brothers, the latter shall conform to the parents' wishes in the settlement of the estate. Even if the disowned child returns home to mourn for the parents, this is merely a formal paying of homage to the parents. The fact that he (she) has been disowned bars him (her) from making any claim against relatives. If, revolting against the parents' wishes, he (she) files a suit at the local yamen, the latter shall not act upon the claim, in order to suppress any dispute and give a severe lesson to those guilty of lack of filial piety and discord. 36. The Le Code 378. 37. The Le Code 387 states: Men aged sixteen or older and women aged twenty or older who forcibly claim the ownership of land which has been titled or inhabited by their paternal relatives or by outsiders once the prescription period has passed (the prescription period [within which they can claim their land] is thirty years for relatives

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and twenty years for outsiders) shall be given eighty strokes of the heavy stick and shall forfeit their property. This provision shall not apply in case they have just returned after a period of war or dispersion of population. It should be noted that, according to this article, women were better protected than men against the negative prescription of their ownership right as the prescription period started to operate only when women were twenty years old, while it started for men at the age of sixteen. 38. According to the Ming, Ch'ing, and Nguyen codes (the Ming Code IV.4, 99; Staunton 78; Philastre 76; Decree II following Philastre 83 and the corresponding substatutes of the Ch'ing and Ming codes recorded in TU li ts'un i, p. 260), the worship property would go firstly to the principal son or another son of the principal wife, or if there was no such son, to the eldest son of a secondary wife; secondly to an adoptive son originating from the same clan as the deceased's, and thirdly if there were none of the above male heirs in the same clan, the property would go to the daughters. The Le Code and the related legal document Hong Diic thien chirih thii had a series of articles on the ancestor worship property called the "incense and fire" (hiiong hda) property, which in combination indicated that the hilong ho'a property would be devolved firstly to the principal son (eldest son of the principal wife), or if he was unfit or disabled or dead, to the principal grandson, or to a younger son of the principal wife, or a virtuous son of a secondary wife, or a paternal grandson, in that order; secondly to the eldest daughter, if none of the above male heirs existed; and thirdly to a son adopted from the same clan for worship purposes and/or the paternal relatives, defined as brothers and sisters of the deceased, in case there was no child or grandchild or they were scattered far from home. The sons', grandsons', and eldest daughter's right to inherit the ancestor worship property in the above-described order of priority was derived from the Le Code 389, 391, 392, 393, 395, 396, 398. The right of the adoptive son and/or the paternal relatives, defined as brothers or sisters of the deceased, to inherit the ancestor worship property was derived from Hong Diic thien chirih i/it/pars. 256 and 270, as well as the Le Code 375 and 394. 39. According to the Le Code 395 and 397, if a family had only one daughter she, or the eldest among a number of daughters or grandaughters, would inherit the worship property, in priority over an adoptive heir or a paternal relative (brother or sister) who, according to the above provisions, would be entitled to the property only if there was no natural child. For the other codes, see Decree II following the Nguyen Code 83, and the corresponding substatutes of the Ch'ing and Ming codes, recorded in Tit li ts'un i, p. 260. 40. These principles are derived from three provisions in HDTCT. Paragraph 320: If a woman with a son by her first and late husband and a daughter by her second husband dies from old age or illness, her hiiong hda shall be entrusted to the management and custody of the second husband's daughter. The son of the first husband cannot make any claim on this property, since after remarriage the woman becomes a stranger to her first husband's clan members who would not have to mourn for her. Whoever violates this provision shall be

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prosecuted for lack of filial piety and for discord and shall lose his or her part in the inheritance. Paragraph 126: A woman had a son by her first husband who died, and if she had a son by her second husband who also died, then at her death, the portion of property belonging to her because it originated from her clan or because it was her share in the property acquired during marriage, shall be established by will as the hiióng hda property and entrusted to the son of her second husband in order to carry out her worship. If a woman with a son by her first husband, and a daughter by her second husband, is survived by the second husband, the hiióng hda property shall be entrusted to the daughter of the second husband (as worship heir) and not the son of the first husband, thus adhering to the principle that a married woman must follow her husband. [At the death of the second husband], the portion of the estate that goes to the mother shall be divided into two parts: one for the first husband's son, one for the second husband's daughter. The hiióng hda property mentioned above shall revert to the first husband's son who will assume the management and custody thereof. He shall build a temple to carry out the cult. On the anniversary of [the mother's] death and on the new year day, he shall come to this temple to worship. The altar tablet [of the mother] shall be placed with that of the second husband and not with that of the first husband. The same principle shall apply to the tombs. Whoever forcibly makes a claim of property against this provision shall lose his or her part in the inheritance. Paragraph 127: Nguyeñ Giáp gave birth to three daughters: the eldest Nguyéñ thi At, the younger Nguyeñ thi Biñh, the youngest Nguyéñ thi Dinh. Nguyéñ Giáp died. It had been expressly stipulated that without the eldest son, the eldest daughter would assume the responsibility for the hiióng hda. Moreover, while there were four secondary clans, there was only one principal clan. Thus no member of the secondary clans might claim [the hiióng hda\. Consequently a hiióng hda was established and entrusted to the custody and management of the eldest daughter Nguyéñ thi At. Then Thi Át gave birth to a son Tráñ Máu; Thi Birih, to a daughter, Daó thi Ti; and Thi Dinh, to a son, Pham Canh. Upon Thi Át's death, her son Mau, being a maternal grandson with the family name of Tráñ, could not assume the management and custody of a hiióng hda of the clan of his maternal side. The hiióng hda had to be entrusted to Thi Birth who, although female, belonged to the same clan [as the grandfather]. When Thj Birih died, the hiióng hda went to Thi Dinh. When Thi Dinh died, it reverted to Tráñ Máu and at Tráñ Máu's death, it went to Pham Canh. This order illustrated the distance or closeness of the relation of each relative and prevented all contestation. The law is that beyond five generations, no mourning garb is required and no relation exists anymore. 41. The Le Code 25; the Ming Code II.4 (Vol. Ill, 5b); the Ch'ing Code 47; and the Nguyéñ Code 46. 42. Lingat, Les Régimes matrimoniaux, vol. 1, p. 21. 43. Camille Briffaut, "De la liquidation de l'association conjúgale dans le

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droit de l'Empire des Lê," Penant, recueil général de jurisprudence, de doctrine et de législation coloniales et maritimes (1922), 2nd part, p. 7. 44. The widow's ownership and usufruct rights mentioned were derived from a series of articles in the Lê Code (374, 375, 376) and provisions in Hong Dite thiên chirih thti (258, 259), which reproduced in longer form the articles (375 and 374) of the Code. The Lê legislators did not explicitly use the term "usufruct," but they grasped this legal notion in addition to the notion of ownership when they stated that the surviving spouse would not be able to transform the real estate originating from her husband's clan into her private property, but could only enjoy the use of it during her lifetime. For the details of these regulations see the Appendix. 45. Par. 291 of HDTCT. Its par. 285 also reported that another adulterous woman was given fifty strokes of the light stick and her property turned over to her husband. 46. The corresponding articles in the codes of the T'ang (XXII. 10, Vol. Ill, 98-99), the Ming (XX.14, 29a-b), the Ch'ing (315), and the Nguyên (284) on the wife striking her husband did not provide for the wife's forfeiture of the property to her husband. Obviously women in these codes did not have their own property. 47. HDTCT, par. 258. 48. The Lê Code 377. 49. The Lê Code 378. 50. If the husband left a will giving ownership of the properties to the children, however, the widow would have to respect such ownership rights and to secure the participation of the children in the sale. 51. HDTCT, par. 268. 52. Thus far, we have discussed the widow's property rights, the woman's rights at the death of her husband. For the settlement of the matrimonial estate in cases of repudiation, we find no explicit rule except article 401 already mentioned, which dictated that an adulterous wife had to forfeit her property to her husband. For settlement of the matrimonial estate in case of divorce of a childless couple, probably the rule in the Lê Code 375 would apply. But we find no rule for the case of divorce with children. 53. Photocopy of document A1947 from École Française d'Extrême-Orient. The model forms in this document used the Thông Nguyên reign title (15221527). 54. The Lê Code 388 and 390. See also HDTCT, pars. 85, 90, and 102 in note (35). 55. Lingat, Les Régimes matrimoniaux, vol. 1, p. 104. 56. Camille Briffaut, Droit civil sino-annamite (Hanoi: Imprimerie d'Extrême-Orient, 1921), pp. 231-232: "C'est un régime profondement égalitaire, basé sur le principe de l'égalité des clans et de l'égalité des époux, en personnes et en biens: apports égaux; fruits communes; solidarité; charges communes; dettes communes; volontés directives égales; partage égal; retrait des propres." 57. The Ming Code IV. 13, 25b; the Ch 'ing Code 87; and the Nguyên Code 82. 58. Decree II following the Nguyên Code 76; an equivalent decree also existed in the Ch'ing and Ming codes. 59. Lingat, Les Régimes matrimoniaux, vol. l , p . 21. 60. Lingat, Les Régimes matrimoniaux, vol. 1, pp. 22 and 59. 61. Lingat, Les Régimes matrimoniaux, vol. 1, p. 22. Probably because

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widows who decided to remarry were deprived of independent means of support, the law forbade parents-in-law to force widows into remarriage. 62. Lingat, Les Régimes matrimoniaux, vol. 1, p. 22. 63. The Ming Code XX. 14, 29a; the Ch'ing Code 315; and the Nguyêfi Code 284. 64. Lingat, Les Régimes matrimoniaux, pp. 24-25. 65. A. H. Smith, Village Life in China (New York: Revell Co., 1899), p. 218.

66. Tapping Reeve, The Law of Baron and Femme, Harvard Collection on Legal Status of Women (New Haven: Oliver Steele, 1816), chapter 1. The English women of the time were legally incapable of independently possessing and disposing of property, and furthermore, were subject to their husbands with no option for divorce (England's three great relations in private life were: masterservant, husband-wife, parent-child). 67. Camille Briffaut, "La Vieille loi annamite à travers la jurisprudence," Penant, recueil général de jurisprudence, de doctrine et de législation coloniales et maritimes (1922), 2nd part, p. 28. 68. Lingat, Les Régimes matrimoniaux, vol. 1, p. 92. 69. Jean-Baptiste E. Luro, Cours d'administration annamite (Saigon: Collège des Stagiaires, 1875), p. 51. 70. Ibid., pp. 487ff. 71. Firmin Lasserre, Projet de Code Civil à l'usage des annamites (Saigon: Grillant & Martinon[?], 1884), p. 235. 72. Comité Consultatif de Jurisprudence's 1930 report entitled Recueil des avis du Comité Consultatif de Jurisprudence Annamite sur les Coutumes des Annamites du Tonkin en Matière de Droit de Famille, de Succession et de Biens Cultuels, quoted in Lingat, Les Régimes matrimoniaux, pp. 97-105. 73. On the French Courts' recognition of the women's inheritance rights, see Lingat, Les Régimes matrimoniaux, vol. 1, p. 39. 74. Lingat, Les Régimes matrimoniaux, pp. 40-41. 75. Lingat (Les Régimes matrimoniaux, vol. 1, pp. 41-45) summarized the changing position of the French courts in Cochinchina as follows: Prior to 1883: Recognition of the community property. 1893 : Denial of the community property in the name of the Nguyen Code. 1908: Discovery of the Lê Code by Deloustal's translation thereof. Return to the old position of recognition of the community property. 1913: The Court of Appeals of Indochina refused to recognize the community property, on the ground that the Lê Code had only a historical value. Same reasoning in the October 25, 1929, decision of the Saigon Court of Appeals: the Lê Code had only a historical interest; in the matrimonial régime of the customs in Cochinchina, the wife never had a part in the husband's property or the property acquired during marriage. From then on, the Courts did not recognize the wife's right over the property acquired during marriage. 76. Lingat (Les Régimes matrimoniaux, pp. 45-53) summarized the stronger and more long-lasting influence of the Lê Code on this issue of the wife's separate property as follows: 1891: Rejection of the wife's separate property. 1910 on: Under the influence of the Lê Code, newly discovered, the Courts began to hesitate in their opinion. Beginning in 1919, the Saigon Court of

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Appeals was in favor of the wife's separate property. Its March 24, 1921, decision stated: Whereas, customs have long recognized the right of the married Vietnamese woman to own separate property in case such property comes from donation or inheritance; Whereas, such a rule was sanctioned in the Lê Code, much more liberal and in tune with the Vietnamese mentality than the Gia Long [Nguyêii] Code, which was only a copy of the ancient and inhuman [s/c] Manchu Code. (Considérant que depuis longtemps déjà la coutume a reconnu à la femme mariée annamite le pouvoir de posséder des biens propres dans le cas particulièrement où ils lui échoient par donation ou heritage; que cette règle était admise par le Code des Lê, beaucoup plus libérale et plus en rapport avec la mentalité annamite que le Code Gia Long, qui n'est que la reproduction de l'antique et inhumain Code Mandchou.) But the October 25, 1929, decision by the same court again rejected the wife's separate property. Similarly, the July 17, 1938, decision stated: "The wife's contributions are incorporated into the husband's estate. . . . This custom conforms to the prescriptions in the Gia Long Code. . . . This Code sanctions the complete subordination of the wife and the absorption of her estate into that of the husband. . . ." ("Les apports de la femme tombent dans le patrimoine du mari . . . Cette coutume est conforme aux prescriptions du Code Gia Long. Ce Code a consacré la subordination complète de l'épouse et l'absorption de son patrimoine dans celui du mari. . . .") Thereafter, many decisions by the Second Chamber of the Saigon Court of Appeals were decided along the same lines. But the First Chamber of the same court remained faithful to the Lê Code tradition. According to Lingat, the logical and just corollary of the right of women (even married) to inherit should be their ownership right over the property they brought into the matrimonial estate through inheritance. 77. See note 72. 78. Trinh Dinh Tiêu, La femme mariée en droit Vietnamien (Toulouse: Imprimerie Soubiron, 1958), p. 7. 79. Robert Lingat, Régimes matrimoniaux du Sud-Est de l'Asie, vol. 2 (Saigon: EFEO, 1955), p. 19. See pp. 172-185 in this treatise for the articles of these codes dealing with the spouses' community property and the widow's rights. Other studies on the women's status are Trinh Dinh Tiêu, La Femme mariée en droit vietnamien, cited in the preceding note, and Nguyen Phu Difc, La Veuve en droit vietnamien (Saigon: Ministry of National Education, 1964). 80. The Family Law, no. 1/59, dated January 2, 1959, reprinted in Vu Van Mâû, Viêt Nam dân luât liidc khdo (Short study on Vietnamese civil law) (Saigon: Ministry of National Education, 1959), tome I, pp. 40-41, provided that the community property consisted of all the separate contributions of the spouses on the date of marriage and during marriage through inheritance or donation, as well as the properties acquired during marriage (art. 48); that both spouses jointly administered and disposed of property (arts. 49, 50); and that the community property had to pay for all debts incurred by the husband and the wife before and during marriage (art. 54). The Law on Marriage, Filiation, and Community Property, no. 15/64, dated July 23, 1964 (reprinted in Nguyên Quang Quynh, Dân luât [Civil Law] (Saigon:

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Liia' Thieng Printing House, 1972), p. 535) provided that the community property consisted of all movable properties and all real property acquired during marriage, while each spouse's separate property consisted of real property acquired by that spouse before marriage or during marriage through inheritance or donation (arts. 54, 55); that both spouses should participate in the disposal of properties (art. 57); and that the community property had to pay for all debts incurred by the husband or the wife (art. 61). T h e Civil Code of D e c e m b e r 20, 1972, Cong bao Viet-Nam

cong hoa (Official

gazette of the Republic of Vietnam) (dated February 28, 1973), pp. 760/13-15, defined the community property and each spouse's separate property and regulated the powers of the spouses and the payment of their debts in the same manner as the 1964 Law. 81. See George Ginsburgs, "The Role of Law in the Emancipation of Women in the Democratic Republic of Vietnam," American Journal of Comparative Law (Fall 1975), no. 4, 613ff. 82. " T h e Status of Women," American

Journal of Comparative

Law 20, n o . 4

(Fall 1972): 586.

BIBLIOGRAPHY

Bodde, Derk, and Morris, Clarence. Law in Imperial China. Cambridge: Harvard University Press, 1967. Boulais, G. Manuel du code chinois. Shanghai, 1924. Reprint. Taipei: Ch'eng-wen Publishing Co., 1966. Briffaut, Camille. "De la liquidation de l'association conjugale dans le droit de l ' E m p i r e des L ê . " Penant, receuil général de jurisprudence,

de doctrine et de

législation coloniales et maritimes, 2nd part, p. 7. Paris: Penant, 1922. . Droit civil sino-annamite. Hanoi: Imprimerie d'Extrême-Orient, 1921. . "La Vieille loi annamite à travers la jurisprudence," 2nd part, p. 27. Paris: Penant, 1922. Công bào Viêt-Nam công hòa (Official gazette of the Republic of Vietnam) (Saigon), February 28, 1973. Bai Viêt sfrky toàn thir (The complete book of the historical records of Dai Viêt). Translated from Chinese into Vietnamese by Cao Huy Giu. 4 vols. Hanoi: Nhà Xuät Bàn Khoa Hoc Xä Hôi (Social Sciences Publishing House), 1967, 1968 (Abbreviation: 7T). Dire, Nguyln Phü. La Veuve en droit vietnamienne. Saigon: Ministry of National Education, 1964. Ginsburgs, George. "The Role of Law in the Emancipation of Women in the Democratic Republic of Vietnam." American Journal of Comparative Law, no. 4 (Fall 1975): 613ff. Hong Dire thiên chinh thir /Att 4 - ( T h e

b o o k of g o o d g o v e r n m e n t of the

Hong Dire reign). Translated into Vietnamese by Nguyën Sì Giâc. Saigon: Nam Hà Printing House, 1959 (Abbreviation: HBTCT). Jamieson, George. Chinese Family and Commercial Law. Shanghai: Kelly and Walsh, 1921. M ä u , Vü Van. Co luât Viêt Nam lircrc khào (Survey of traditional Vietnamese law).

Saigon: Saigon Law School, 1970.

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. Dân luât Viêt Nam lirçrc khâo (Short study of Vietnamese civil law). Saigon: Ministry of National Education, 1959. Tome I. Ming lü chi chieh fu Ii "fl (The Ming code with commentaries and supplementary regulations). Peking: Hsiu t'ing fa lü kuan, 1908. Lingat, Robert. Les Régimes matrimoniaux du Sud-Est de l'Asie: Essai du droit comparé indochinois. Hanoi: École Française d'Extrême-Orient, 1952 (vol. 1); Saigon: EFEO, 1955 (vol. 2). Philastre, P. L. F. Le Code annamite. Paris: E. Leroux, 1909. Quôc triêu chiêu lênh thiên chinh S Jfà ÎS 4^4-Ä. (The dynasty's edicts and decrees promulgated for good government). Translated into Vietnamese by Nguyën ST Giâc. Saigon: Saigon Law School, 1961. Quoc trieu hinh luât IS $1 if'i # (The penal code of the national dynasty). Translated into English and annotated by Nguyën Ngoc Huy, Trän Van Liêm, and Ta Van Tài. École Française d'Extrême-Orient. Photocopy of documents A341 and A1995. (Referred to as the Lê Code.) Quôc trieu thir khe (Legal forms in use under the national dynasty). Photocopy of document A1947, École Française d'Extrême-Orient. Quynh, Nguyën Quang. Dân luât (Civil law). Saigon: Liîra Thiêng Printing House, 1972. Smith, Arthur H. Village Life in China. New York: Revell Co., 1899. Staunton, Sir George Thomas. Ta Tsing Leu Lee, Being the Fundamental Laws and a Selection of Supplementary Statutes from the Penal Code of China. London: Cadell & Davies, 1810. T'ang lü shu-i M (The T'ang code explained). Compiled by Ch'ang-sun Wuchi. Taipei: Commercial Press, 1973. Tapping, Reeve. The Law of Baron and Femme. New Haven: Oliver Steele, 1816. Thiên Nam dir ha tap f^fa (Collection of the leisures of the South of Heaven). Photocopy of document A334, École Française d'Extrême-Orient (Abbreviation: DHT). Tiëu, Trinh Dinh. La Femme mariée en droit vietnamien. Toulouse: Imprimerie Soubiron, 1958. Tu Ii ts'un i ft (Doubtful thoughts on perusing the substatutes). Compiled by Hsüeh Yün-sheng. Reprint. Taipei, 1970. Tircrng, Nguyën Manh. L'Individu dans la vieille cité annamite: Essai de synthèse sur le Code des Lê. Montpellier: Imprimerie de la Presse, 1932. van der Sprenkel, Sybille. Legal Institutions in Manchu China. London: Athlone Press, 1962.

The Legal System of Japan at the End of the Kamakura Period from the Litigants' Point of View CARL STEENSTRUP

INTRODUCTION

A modern government is an organization of great staying power. Through force, threats of force, or routinized co-option of potential rivals, it is able to remain afloat for an indefinite period, no matter how much its ideas and actions antagonize large and otherwise influential segments of the population. Such a government possesses an enormous preponderance of strength vis-à-vis any group of the people as regards firepower, power to incarcerate, confiscate, and tax, and power to inflame and mislead people's minds by means of the media. Virtually only dissension within its own ranks can bring it down. So great is a government's stability that it is not considered wondrous, but quite normal, that a body of men called lawyers can make a living out of merchandising predictions about the actions of the government's executive and judicial agencies. We know that most legal systems grew up under quite different, much more unstable conditions, but only in certain polities like medieval England and medieval Japan did trial documents and legal manuals survive in quantities which enable us to follow in detail how folkways settled into custom and custom into law, and how the power to dispense the priceless commodity of predictable law enforcement eventually strengthened the nascent state. The common point of departure of most types of government under premodern conditions of production was their precarious position. They could easily be toppled by competitors for power unless they found

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devices to distract the energies of potential rivals. Observations of the few surviving polities of the premodern order, as well as historical evidence from defunct ones, show the reasons for this state of affairs. First of all, tribal loyalties and the absence of an elective system tend to make incorporation of other elites into the existing power structure difficult. Secondly, there are no means to mobilize the masses against the opposition, and in any case the masses are too busy keeping body and soul together. Thirdly, communications are so slow that the opposition may assemble an army in the periphery before the center knows about it, and when the "ins" and the "outs" finally do clash, military technology is not developed enough to give the "ins" an uncontestable edge over the "outs." A premodern government somehow must keep actually or potentially competing elites busy with diversions which absorb the energies and resources they would otherwise use to launch themselves into power. The choice of diversions may have a profound effect on the shape and character of the legal system that emerges in the state. War is one such diversion. Another is competition for courtly favors and ranks or for monopolies of trade and piracy overseas. These two means are well known from European history. Chinese rulers kept their system stable by diverting the energies and much of the economic surplus of the landowning class into fierce competition for the academic degrees which were made prerequisites for entry into the power-holding class. Rulers of seventh and eighth-century Japan attracted members of the landowning class into the mock state-socialist system they established by offering titles, ranks, and the right to obtain tax-exempt private land holdings through opening up wasteland for cultivation. During the next three centuries—down to about 1150—bureaucratic families who were able to take advantage of such rights monopolized central as well as local power. Their success—which was largely achieved by legal and peaceful means—was due to their ability to incorporate other elites. In Kyoto, they recruited talented men of low rank to serve in their estate bureaus as well as in the lower, working levels of the government offices. Headships of these offices were held by the bureaucratic families and provided the court and office ranks which gave them the monopoly of holding tax-exempt private land. Households of emperors and ex-emperors successfully participated in these ingenious—but mostly quite legal—schemes, as did the great temples and the ladies of the court. The system collapsed in the twelfth century because the ruling families failed to give social recognition and security of tenure to the "intermediate elite" in the countryside. Some members of this group came from the bureaucratic families of the center, had served as tax collectors, and opted to stay; others were descendants of pre-seventh-century landown-

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ing families who had commended their lands to the bureaucratic families but remained in possession; others again were men who had been sent out as estate officials and had bought land with their gains. 1 Together, these men—particularly in areas far from Kyoto—formed an entrenched, indispensable managerial class, partly literate and always accustomed to wielding arms, since it belonged to their lifestyle to hunt down robbers and to wage feuds among themselves. MINAMOTO

AND

HOJO

RULE

In 1180 a rising of this class—a managerial revolution in the strictest sense—took place under the leadership of Minamoto no Yoritomo. Its success led to the establishment of a warrior government or bakufu in Kamakura which made the Kyoto government subservient, but allowed it to continue. This Kyoto/Kamakura dyarchy continued until 1333 when it was toppled by an imperial counter-coup. The political structure in Kamakura was pluralistic. In 1203 the in-laws of the Minamoto, the Hojo, ousted the Minamoto from power and for the next 130 years ruled through puppet shoguns. There existed continuous rivalry between the hereditary housemen of the Minamoto (the gokenin) and the hereditary housemen of the Hojo (the mi-uchi).2 On the land, a slow multiple revolution was going on: from corporate ownership headed by civil nobles to individual ownership headed by military men; from tillage by slaves to tillage by free or semifree peasants; and from a barter to a money economy. 3 The Hojo were remarkably ingenious at staying on top of this unstable system. 4 Their ultimate failure in 1333 was due to the fact that both gokenin and the Kyoto court resented the concentration of power in Hojo hands and the concomitant trends towards Hojo absolutism. These trends had begun in the last decades of the thirteenth century under the strain of defense against the Mongols but were allowed to continue after peace had returned. One reason why the Hojo, against heavy odds, hung on to power for so long was their ability to build a system of arbitration courts in which the landowning elites busily litigated for rights over land, thus both strengthening the Hojo and exhausting their own energies. Securely entrenched regimes do no such thing. They regard litigation as a nuisance and attempt to perfect the bureaucratic order rather than the judicial system. Part of this attempt is codification of the law, reducing the judge to a viva vox legis. But, ordinarily, strong governments in uncontested control of events do not even want a separation of courts from the civil bureaucracy. If they perfect any part of the law machinery per se, it will, predictably, be that which administers the criminal law.

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Conversely, a government which has to reconcile strong internal oppositon tends to lavish its attention on the courts of civil law, and to fortify them with guarantees of probity,5 in order that it may appear, through its courts, as the arbitrator of claims and the guarantor of rights. Out of the interstices of improved procedure will grow material protection of right. There will be a rapid development of remedies to protect rights of all kinds. On the other hand, enforcement of civil judgments and the prosecution of offenders will tend to lag behind in efficiency. This results partly from the government's lack of resources and partly from deliberate policy. Such a government benefits when persons and institutions ask for letters of protection and for the king's gracious enforcement of judgments. It suffers when it must try to force the strengthening of police powers down the throats of recalcitrant, locally entrenched nobility. Much local variation in enforcement procedure will therefore remain. Nor will a government of this kind readily codify the law. Adherence to custom will in general alienate fewer local magnates than new laws requiring investigation of what is going on locally. Legislation will be minimal, piecemeal, and repetitive—because enforcement is minimal. Furthermore, the distinction between concrete decisions and new abstract rules will be deliberately blurred. A decision can be changed without much loss of face, while a new statute cannot, and the more comprehensive the statute, the worse the risk of upsetting the boat and triggering a rebellion by those whose customary positions are changed for the worse. For similar reasons, the ideology of the ruling group is not made part of enforceable law. Prime examples of such regimes are the limited monarchies of medieval Scandinavia and Britain. In Asia, with the possible exception of the Rajput states in India, there is only one example, namely, the Hojo regime in Japan. It was, to put it paradoxically, illegitimate and wobbly enough to make its courts the mainstays of its regime.6 The trend did not last. In the last decades of Hojo rule there were tendencies toward absolutism and the streamlining of the government apparatus, 7 thus anticipating the reforms of the first shoguns of the Ashikaga dynasty. These efforts alienated some of the supporters of the Hojo regime and made them temporarily follow the banner of the imperial counterrevolution of 1333 which brought the Hojo rule to an abrupt and bloody end. JURISDICTIONS

Since Japanese society under the Hojo was pluralistic,8 sources show the legal system from many angles besides that of the lawmakers and the law enforcers themselves. We are even able to find out what the legal system

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—the rules, the procedure, the courts—looked like from the point of view of the users, that is, the litigants. The reason is that about 1320 an unknown expert on imperial and warrior government law wrote a short textbook called the Sata mirensho9 ("A book for those unskilled in legal matters"), designed for those many warriors who found themselves entangled in litigation or local law enforcement. The mirensho author's main interest was the organization of the organs of conflict resolution of the warrior government in Kamakura, the Bakufu, and its branch offices in the military headquarters dominating the capital, the Rokuhara, with its two Bakufu commissioners or Kyoto tandai (commissioners)10 and of the frontier defense headquarters in Kyushu, the post of the Chinzei tandai (commissioners)." For these authorities he provided definitions of terms and summaries of procedure, and he explained how to write the standard documents required of litigants. For the imperial authorities in Kyoto—which still functioned12 and used the codified imperial law as modified by imperial civil service customary law and by necessary adaptations to the law of the Bakufu— he provided only explanations of terms. Together the Bakufu and the imperial courts concerned themselves with only a tiny fraction of all the law enforcement in Japan. When peasants litigated, for example, over water rights, land tenure, or repartition of taxes and dues, or when they committed crimes, they were, in civil cases, judged by the representative of the "absentee owners" (patrons, honke, or proprietors, ryoke)," and in ordinary criminal cases by the steward (jito) instituted by Kamakura.14 Capital cases were prosecuted by the constable of the province (shugo), who was likewise a Kamakura appointee, but judgment was given by the Bakufu courts in Kamakura or Rokuhara, who divided Bakufu jurisdiction between them, Kamakura always having the last word. The judgments of the representatives of patrons (honke) or proprietors (rydke) in civil cases could be appealed to the honke or ryoke themselves. Appeal of a steward's decision could be made to Kamakura, but Kamakura's courts would handle the case only if the appellant carried a letter from the steward to the effect that the latter endorsed the appeal. This rule was part of the general principle that only stewards and gokenin (hereditary housemen of the Minamoto) could freely bring suit in Bakufu courts; all others needed a letter of endorsement from their lords. However, if the steward refused to issue such a letter, aggrieved locals often succeeded in joining their complaints over his misdemeanors to impeachments made in Kamakura by honke or ryoke.15 During the latter half of the thirteenth century and the first decades of the fourteenth century, honke and rydke, under pressure by stewards, divided their estates with the stewards (shitaji-

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chubun),16 or made the steward sole tax enforcement agent on the estate while they contented themselves with a role as passive capitalists (jitouke). Under these conditions farmers increasingly became the subjects of one lord having undivided powers (ichien-chigyo),17 including civil as well as criminal (kendan) jurisdiction. This polarization between lords and peasants was one of the causes underlying the agrarian risings during the reign of the successor of the Hojo, the Ashikaga. We would like to know much more about the whole range of local jurisdiction—on temple and shrine lands, on private estates or shoen, and within groups of artisans, merchants, and priests18 as well as among villagers themselves where semi-independent villages or mura had been established. But materials—particularly from temple archives—are not yet available in print in sufficient numbers, whereas Bakufu judgments have been printed. Furthermore, neither the mirensho nor the Bakufu and imperial statutes seem particularly concerned about these matters. Everybody who had interest in land agreed that the locally powerful upper classes were to handle local jurisdiction. About the shares of power people could, and did, disagree. But not about the principle of devolution of public competences to the kenmon or powerful families. Already in Kamakura times, some of these established their own provincial hegemonies with their own codes." With these provisos in mind, let us concentrate on what the mirensho tells us about what went on in the most innovative courts of the period—innovative because the kenmon expected fair treatment, and because the Hojo were dependent on their support—namely, the Bakufu courts in Kamakura and in the Rokuhara20 branch office of the Bakufu, which controlled Bakufu operations in western Japan. The mirensho is in many ways a remarkable document. It is well organized, almost like a modern textbook, proceeding in orderly fashion, dividing and subdividng its materials, and defining its terms before using them. It keeps a certain distance from its themes, takes nothing for granted, and defines even the highest officials of the state in functional terms, apparently having no doubt that they are all "organs" of the state.21 There is no trace of ideological fervor. No pejoratives are used about the national enemy, the Mongols,22 and only the barest minimum of honorifics are employed in talking about the highest functionaries of the state, including the emperor, the shogun, and so forth. The author does not even exalt his own profession, that of the law. He explains that the best judge uses his legal knowledge to bring about a settlement among the parties, while the second best uses it to make shrewd decisions.23 Finally, there is no trace of the cant so widespread in manuals of constitutional law in our own time, in which dead institutions and ideals

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are solemnly analyzed as if the ruling class still believed in them. Thus, the fact that the high-ranking vassals of the Bakufu are now tozama or "outsider lords," whereas low-ranking servants of the Hojo have risen to become "insiders" or mi-uchi, is neatly recorded without any attempt at camouflage. 24 The reasons for this objectivity and coolness are not difficult to find. First of all, there was a long tradition of pragmatic jurisprudence in Japan. Law had been recognized from the seventh century onwards— that is, from the time that conscious modernization of institutions using mainland models began—as the prime instrument of social engineering. The aim at the beginning was, as is well known, to match and if possible excel the institutions of the T'ang. Therefore, from that early time, law had had a prominent place in the curricula of the public and private schools in which the sons of the court nobility were trained for public office. 25 Law, to the Chinese and the ancient Greeks, was the handmaiden of autochthonous culture. To the Japanese, as to the Romans, law was the tool with which to emulate and excel more ancient civilizations. But as the bureaucrat class tried to beat the ingenuity of the land-monopoly law of the state, law became useful knowledge also to many who were not concerned with the relative strengths of Japan, Korea, and China, but rather with getting ahead and getting rich. Whether one wanted the right of a private holding, the right to enlarge it, or—the ultimate boon— exemption from the taxman and the right to tax, police, and fine one's peasants, legal knowledge was essential. Thus, understanding of the codes spread from the capital bureaucracy to their managers in the provinces. Learned commentaries on the T'ang-inspired codes (ritsu-ryo) with their novellae (kyaku-shiki) continued to be written during the twelfth and thirteenth centuries.26 Some of these commentaries treated the changes wrought in the ritsu-ryo system by the emergence of extralegal offices within the imperial government, by the growth of private estates (shOen) with tax and jurisdiction immunities, and by the so-called rise of the warriors. When the warriors finally established their own government, they hired legally trained personnel from Kyoto to man their secretariats. Some hereditary law scholars—the Oe, the Nakahara, the Miyoshi, and others—made their way to the very highest ranks in the Kamakura government. The sketchy codes of the warriors—such as the celebrated Joei Code of 1232—did not abolish the T'ang-inspired imperial law for the new ruling class of warriors. Warrior custom was largely based on imperial law.27 Exceptions were so few that they were spelled out as such in the Joei Code.

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The imperial law remained in force for all other strata of the population, especially in the form of shoen-ho,2' which was all the law relevant to that vast majority of the Japanese who worked on the estates as tillers or functionaries. 29 Nor did imperial legislation cease. It went on all through the Middle Ages and could be enforced, as far as the emperor's actual power extended, that is, in the vicinity of Kyoto and in the surroundng Kinai provinces, where civil and ecclesiastical landowners often retained a considerable independence from the Bakufu and followed the instructions of the Court. 30 In many cases, particularly in the latter part of the thirteenth century, Court and Bakufu issued parallel legislation,31 each for its respective subjects. In Western Europe there was a hiatus in the development of jurisprudence between the collapse of the Roman order in the late fifth century and the rediscovery of Roman law by Italian scholars in the twelfth. There was no such hiatus in Japan. "Classical" and "folk" law developed together and enriched each other in the process, as they did in medieval Europe from the twelfth century onward. Chinese law was not in premodern times exposed to a similar "challenge of dyarchy." T H E B A K U F U J U D I C I A R Y A N D H O W IT REAL PROPERTY

HANDLED

CASES

In Bakufu courts there was another rather paradoxical reason for the jurisprudential sophistication we find displayed in court records and in the mirensho. Except for a handful of hereditary bureaucrats who belonged to the HyojOshu (the Bakufu's Council of State and also its Supreme Court), judges had to learn the practical side of the law on the bench. As juniors they sat in the hikitsuke, that is, permanent trial courts of gokenin, divided into several chambers, each presided over by a senior judge who also sat on the HydjdshO or Supreme Court, and if they showed ability, they might themselves become chamber chairmen and members of the Hydjoshu. Bakufu courts started under Yoritomo from scratch and under great stress and confusion. 32 To survive in the job, judges had to develop the law of evidence, principles of contradiction, caveats against falsification of documents and perjury, and remedies against wrong decisions. The concepts and the system could be learned from the existing ritsu-ryo commentaries and from law scholars in Bakufu service. The techniques of case handling of Bakufu judges developed under the pressure of experience. Something similar happened in medieval Europe when courts—as they had to—enforced local customary and statutory law but conceptualized and streamlined it under the influence of Roman law and its successor, canon law. Finally, Bakufu case handling was adversarial to a supreme degree.33

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Not only material facts, but also such things as Bakufu decrees and local customs were part of the evidence which the parties had to demonstrate before the court. Until the stage of confrontation of the parties in the courtroom, the court sat back and let the parties argue out their grievances in writing. The adversary system shows in the very term used for decision, seibai or "victory by defeat."34 A Bakufu compilation of decisions would be called a shikimoku, or list, of seibai. The decision-making process was called sata—a word possibly related to sato or human settlement, sate or "having said so much," and sachi or "(good) fate, luck." Like the terms "law" and "Gesetz," the Japanese term sata implies something which is being settled or is due to be settled. And like its Indo-European counterparts, the Japanese term is not in the least magical or metaphysical. Even the curious etymology of the term sata which the mirensho author finds in the characters with which the term is written—"pebble-sifting," that is sifting truth from falsehood—is dry and rationalistic. After some introductory matter, which explains the terminology used for plaintiff and defendant, for the three rounds of contradictory pleadings which precede their confrontation before the tribunal, and for the enclosures which must accompany the pleadings, the mirensho defines the most important type of cases35 handled by Bakufu courts as follows: [14]

Cases about landed income (shomusata)li are suits concerning titles of ownership of paddy land, dry fields and other property; the hikitsuke in Kamakura and in Rokuhara have the competence to try them. 38 To start such a case, the initial pleading and its enclosures are first examined for technicalities. The papers are given to the Distribution Office. Its distributing judge (,kubari-bugyo)39 checks and acknowledges them, makes a note of the identity of the suit in his case records, signs his40 name on the initial pleading, and then turns over the documents to that one of the five chambers of the trial court (hikitsuke) whose turn it is to take on a new case. The secretary of that chamber receives the documents. In the session of the court it is decided by lot which of the judges (bugyd)" is to report on the case. As soon as he has been appointed, he writes a summons to the defendant. This act is called "the beginning of the trial procedure" [that is, the possessor may not sell or mortgage the land which the action concerns].42 A senior clerk of the trial court keeps a detailed record of the court's proceedings.

The parties then proceeded to exchange pleadings and counterpleadings, laggards being prompted by the court, as were those who did not answer exhaustively and to the point. 43 The court, however, took no steps to investigate the truth of the matter —that was the task of the parties. The exchange of documents was timeconsuming, probably in the hope that the parties would cool off and

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come to an agreement. Given the very limited means available to compel parties in far-off places to speed up their answers, and the Hojo government's reluctance to irritate powerful feudatories, the Bakufu's persistent drive to make the parties settle their quarrel in some form of wayo or agreement was natural. For the same reason, great care was taken to prevent the parties from maintaining after the trial that their claims had not been answered or that their supporting documents had not been read by the other party, or by the court. Says the mirensho: [21] When the three rounds of written pleadings44 are over, the original pleadings are returned to the Judges' Office. The parties are summoned to this office; the pleadings are pasted together edge to edge,45 and the seams are imprinted with seals on the reverse side. As for who should put his seal above and who below, if a principal litigates against another principal's proxy, the former should seal above; if the proxies of two principals litigate, they take turns to seal above; if a Kyoto noble's or a temple's manager and a jito's [that is, a Bakufu-appointed steward's] manager litigate, the same rule is to be followed. After this sealing, the sealed originals are taken to the Judges' Office and kept there. After judgment has been delivered, these papers are called "documents of adjudged cases" and are placed in the court archives.

After the written pleadings, and the fixation of their substance, it was time for the parties to confront one another directly in court. 46 If they were not present in Kamakura or Rokuhara, summonses or meshibumi*1 were sent to them. Minamoto housemen (gokenin) had the privilege of being summoned by letters addressed to them directly,48 while any others were summoned by letters addressed to messengers, whom the court made responsible for the parties' appearance before the court. Summonses were sent three times; a litigant who did not appear after the third summons might lose his case, if he was a plaintiff, or be judged according to the plaintiffs plea, if he was a defendant. 49 However, the Bakufu's weakness as an enforcing agency is apparent. Often four or more summonses were sent without apparent effect, and without the court using the sanctions with which the law provided. The slowness of contemporary communications shows in the mirensho rule on deadlines for appearance: 4[18] If somebody living as far as Mino or Owari [in mid-Honshu; beyond them began the jurisdiction of Rokuhara] is served a summons to appear in Kamakura, he has thirty days from receipt within which to appear; if a person [from within the Rokuhara circuit, that is, within west and south Honshu, while Shikoku and Kyushu came under the Kyushu defence headquarters (Chinzei tandai)] is served a summons to

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appear at Rokuhara, he has twenty days; if the court's messenger summons him to traverse his own province [to come to court], he has ten days. If he does not comply with these deadlines, he is guilty of contempt of court (ihai)5" [and may possibly be judged according to what his opponent says]. (However, allowance for the distance of the provinces must be made [gloss]). When the parties finally were ready for trial—and present—the rules to ensure fairness were even more meticulous 51 than those applied during the written pleadings. According to the mirensho: [22] First, copies of the pleadings and of supporting enclosures are forwarded to the chairman of the trial court (hikitsuke) chamber which tries the case; the entire chamber should study them diligently. Then, a preliminary hearing is held before the reporting judge, and only then is a [full] hearing held before the chamber in question. [23] If, after confrontation has taken place, the parties agree that they have more to tell the court, another hearing is held. [24] When the trial court chamber chairman and the fellow judges have all assembled in the courtroom, the reporting judge summons the parties to appear. They are then confronted and questioned. Then they must leave the courtroom, and the judges deliberate together, compiling a list of rights and wrongs found in the parties' statements. This act sums up" the trial court proceedings. [25] The reporting judge drafts a summary of the "rights and wrongs [according to the preceding article]," and asks the chamber to consider it; this session is called "the adoption or rejection session of the trial court."53 The issues of the dispute having thus been boiled down to manageable proportions, including the points of law since these were not clearly distinguished from points of fact, the next step was deliberation in the Supreme Court cum Council of State, the Hyojoshu.54 There were two such organs, one in Kamakura for cases from eastern Japan and one in Rokuhara near Kyoto for cases from western Japan. The former was able to overrule the latter.55 The leading members of the Kamakura Supreme Court were the shogunal prime minister, the shikken, and his deputy, the rensho.'6 Both posts were monopolized by Hojo. In the Rokuhara Supreme Court, the two Bakufu commissioners (Kyoto tandai), also Hojo men, presided. Next, on each of these courts sat the chairmen of the trial court chambers, normally five in each place. They were Hojo or Hojo housemen (mi-uchi). Finally, there might be one or two members of the families of hereditary legal scholars, such as the Nikaido, or even representatives of old landed families whose members

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were not retainers of the Hôjô, the gOzoku. They had, however, disappeared from the roster at the time when the mirensho was written. By 1320 the Hôjô and their mi-uchi housemen ruled rather autocratically. Political decisions were—as we shall see later—no longer made after open debate in the HyOjOshû of Kamakura, but behind closed doors in the Cabinet or yoriai, that is, private meeting of the Hôjô leaders and their closest retainers. But the Kamakura HyOjOshû remained the Supreme Court of the Bakufu. The shogun about 1320 was no counterpoise to Hôjô absolutism. He was an imperial prince chosen by the Hôjô, and was not permitted to sign documents or take part in policy meetings. The mirensho clearly treats the shoguns as nothing more than an institution: [38] The shogunal House (shôgun-ke) are the princes fkimi) who have successively been rulers of the Kantô [eastern Japan, under the direct control of the Kamakura régime]57 since Minamoto no Yoritomo. The mirensho does not give us a definition of the positions at the top of the Hôjô hierarchy, the tokusd, or clan president, and the prime minister (shikken) of the shogun. But a gloss explains that the shikken is the shogun's deputy for administrative affairs (seimu no go-daikan).5> That the systematic aspect of indirect rule was grasped is clear from the employment of this term. Concerning the handling of a case in the Supreme Court (HyOjOshû), the mirensho has the following to say: [26] First, the order in which each member is to declare his opinion is determined by drawing lots. Next, the secretary59 of the trial court chamber which investigated the case, together with the supervising judge, proceed to the Supreme Court, carrying the documents of the case. They address themselves to its members, and the aforementioned secretary of the chamber, and only he, recites the summary of "rights and wrongs" as adopted by the trial court. This stage is called "the reading of the summary." Thereafter, each Supreme Court member declares his opinion in the order determined by lot. If the Supreme Court disagrees with the judgment reached by the trial court, the Supreme Court sends the case back to the trial court [chamber] whence it came, and that chamber will have to retry it; but if the Supreme Court agrees with it, the trial court's judgment stands. [27] When the Supreme Court had concluded its deliberations, "True" or "False" is written at the top of the "rights and wrongs" summary adopted by the trial court. This procedure is called "writing the heading." The Supreme Court appoints one of its members to write this. This act terminates the Supreme Court proceedings.60

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[28] The clerk of the Supreme Court will now draw up a summary of the Supreme Court's findings and lay this summary before the trial court [chamber which tried the case]. (This session is called "adoption or rejection session concerning the final judgment" [gloss].) After the chamber has approved the draft, either the chairman or the court scribe writes out the final decision. On this, the tandai (in Kamakura, this refers to the prime minister (shikken) and the latter's deputy (rensho), and, in Kyoto, to the two Bakufu commissioners in Rokuhara (gloss)) place their seals, and the chairman of the trial court chamber puts his personal seal on the reverse side. He then calls the winning party to the trial courtroom, and hands him the decision without delay." Whether these bodies, if they could not agree, made majority decisions or went on debating until some decision was reached is still a moot point. 62 While it is probable that courts of priests in estates owned by temples used majority decisions, it is improbable that Bakufu warriors and bureaucrats did so. Bowing to consensus is the village tradition in Japan, while counting one head as one vote goes against the grain of a rank-conscious society in which two persons are never equal. The basically Indian Buddhist tradition of the sangha was different in this respect. The ultimate aim of the land litigation system was to make the parties thrash out their differences in order to prevent them from feuding or raising riots against the Bakufu. 63 There was therefore liberal provision for appeal. 64 Appeal could be sought within three years of the judgment. Says the mirensho: [29] After such judgment has been delivered, if a party feels that there is a discrepancy ("discrepancy" means difference [between what was established in court and the court's decision] (gloss)) and explains this in detail to the chairmen of the board of the trial court chambers (tOningata) and they think that he is right, then there will be a retrial in the trial court chamber which first heard the case (this is called the fukukan (gloss)). But if the chairmen think that he does not have a case, the decision stands.6® The retrial result would then if it were different from what the Supreme Court had once decided, have to be brought before that body again for deliberation and confirmation. The term for the procedure, "fukukan,"66 means literally "re-hearing." It aimed at wrong decisions, rather than procedural mistakes. If the request for fukukan was turned down, the loser could appeal to a Committee of Appeals (ossogata).61 Says the mirensho: [30]

. . . [He must prepare] a detailed application, and present it to the chairman of the Committee of Appeals. If the committee thinks that the appellant is right, it will hold a closed session (naidan)6' and see whether there were any "basic matters" miscarried in the appellant's case. ("Basic mat-

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ters" means important points (gloss).) If so, the commitee calls for the summaries of the case; the committee compares these with the appellant's application, and if it finds that an obvious error was committed in his trial, it issues an order for a retrial; the retrial takes place in the normal manner of trial court proceedings.69

Commentators think that in such a case the retrial took place in a chamber different from that which tried the case in the first instance. Possibly the Committee of Appeals and not the chairmen of the trial court chambers also took command of the judges (bugyo) of the trial court who handled the retrial; otherwise, professional pride and stubbornness would probably have led the judges to the same result as before. It is not proved that the chamber chairmen had a bugyo staff of their own.70 Complaints of procedural mishandling of the case were made in the procedure known as direct appeal or teichu.11 Such complaints were heard by the trial court if the complaint was lodged against one of its judges: for example, for refusing to take action on receiving a plaintiffs plea, or for being swayed by a letter of support from some powerful person on behalf of the opponent. If one suspected the trial court, one could complain to the Supreme Court. In Kyoto there was a special official with the responsibility of inquiring into such complaints. If it was found that the petitioner had made willful misrepresentations, he would face serious punishment. He might lose one-third of his land, or even be sent—if he had no land—into banishment. 72 Such complaints were, therefore, rare. Last-ditch appeals for cases in which both parties were dissatisfied were probably even rarer. The mirensho says: [34]

If both parties together submit that the trial court and the Supreme Court, the Committee of Appeals, and the officials in charge of "direct appeal" have all overlooked something, 73 then this is called a "petition (for redress"; this institution is not found in the Rokuhara [circuit] (gloss)).

Since the Rokuhara authorities did not handle such complaints, they went directly before the Bakufu, that is, the shikken and rensho. Finally, the so-called secret appeals, or naiso, were quite political and hardly part of a legal procedure. They were forwarded, directly or through an official, under secrecy, to the shogunal prime minister (shikken) and his rensho or deputy in Kamakura, or to the Bakufu commissioners (tandai) in Kyoto. LAND

LAW

Land was not only the overwhelmingly important means of production. Land holdings also determined jurisdictions, and the strength of a land-

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holder's privileges determined to what extent he was immune from tax gatherers or from bailiffs of the shugo or provincial constable, in case they wanted to chase criminals on his lands. If someone was a Bakufuappointed steward (jito), the type of land confirmation he possessed determined whether he could appropriate every type of income to which he could adduce some customary claim (honpo-jito).li His right to become a Bakufu houseman (gokenin) depended inter alia on what kind of land grant his ancestors held, and his right to sell and mortgage land depended—at least in some periods—on whether this was private land confirmed by the Bakufu or land granted directly by the Bakufu. 75 These matters could be very murky if they dated back to the anarchic period at the beginning of the Bakufu. Land law was what the French call "droit administratis" law which provided the skeleton and sinews of the state body. The legislators accordingly took great pains in its clarification and enforcement. It is therefore hardly surprising that the mirensho contains some very explicit definitions of the persons, the properties, and the actions in land law, as follows: [66]

Bakufu land confirmation (ando)''6 is an edict (kudashibumi) which gives a person the right to possess and draw income from (chigyO) such paddy, dry, or other land as his parents owned or held (shoryó) and conveyed to him. Nowadays the seals of the shogunal prime minister and his deputy (shikken and rensho) are stamped on the margin of the conveyance instrument; this is called "margin confirmation." 77

In traditional Bakufu law, ando (land confirmation) put the burden of proof on everyone who later claimed the land, but did not prove ownership.78 By the time that the mirensho was written, however, the Bakufu had tried to limit land litigation by making such confirmation a proof of ownership.79 For this reason the preliminary checking was severe. And at the same time we get a glimpse of how legally regulated life in medieval Japan was. As in modern Europe, the really important parts of the law were administrative law. Says the mirensho: [37]

The decision lies with Kamakura, and three judges have been appointed for this task. 80 If a man believes he has a right to be confirmed in his holdings, he makes application to them. First, they investigate all the enclosures (gusho)—original Bakufu grants, series of successive deeds, genealogical tables proving a hereditary title to land, and so forth. All these documents should be submitted to the aforementioned office. If the claim is considered reasonable, official letters (hosho) are sent to the constable (shugo) of the province [where the land is] or to the claimant's relatives, asking whether he is in actual possession of the land or not (this is called a "ques-

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tionnaire hosho" (gloss)). If no one objects, or the answers received . . . tally with what the claimant says, then he receives his confirmation. (Nowadays, this is done in the following way: the shikken and the rensho place their seals in the margin of the deed and it is called "margin confirmation" (gloss).) But if somebody raises objections, then the matter must be transferred to the trial court chamber whose turn it is to try the case, and the chamber will decide the rights and wrongs of the matter. Further, the Monchujo [a court which handled disputes arising from contract and money matters] is the competent authority for confirming land acquired by purchase." Land was the basis of influence in society. But Bakufu-appointed steward (jitO) posts were reserved for those who held or were appointed to hold land of the Bakufu as gokenin.*2 The prerequisites for being considered a gokenin are spelled out in the mirensho as follows: [46] A gokenin is a man whose ancestors held since time immemorial ownership of land because they cleared it and have received a Bakufu edict (kudashibumi) confirming them as land-holding warriors. ("Ownership because of land clearance" simply means "original private holding": it is also called honryo (gloss).)83 One could be a warrior (samurai) without being a gokenin. Such a person was legally defined as follows: [47] A non-gokenin (hi-gokenin) is a man who has samurai status but holds no land in return for vassal duties to the Bakufu.' 4 In short, he might have land confirmation (ando) but not the fundamental Bakufu edict (kudashibumi) as gokenin. During the Mongol wars, many impecunious men of modest rank had obtained Bakufu employment as a reward for military prowess. 85 But around 1320 the Bakufu was dominated by Hojo housemen (mi-uchi), who wished to keep the gokenin class narrowly defined. The mirensho said so very bluntly: [48] Birth status (hon-chitsu) is the name which the ancestors of a Bakufuappointed steward (jitO) or of a gokenin bore during their lifetimes. Anyone—even a man who has in recent years been given an ando [land confirmation], or has regularly paid dues in grain or labor to the Kamakura or Rokuhara offices—who is found on investigation of birth status to have no original shogunal kudashibumi, is classed as a hi-gokenin.'6 Thus, he would be classed as an ordinary samurai. As such, he would have certain privileges87—particularly in the criminal law—but he would not be eligible for jito posts. Mi-uchi (Hojo housemen) were sometimes recruited from among warriors who had talent but not the birth status

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(hon-chitsu) required to be gokenin. And shugo might be men of any rank whom the Kamakura government saw fit to appoint. The narrow conditions for being classed as gokenin were further narrowed down for jito: [43]

Jito are those who have succeeded each other in the service of the shogunal house (shogun-ke) since the time of Yoritomo and have received benefices (go-on) from the shoguns."

In addition to these "originally appointed" jito, or honpo-jito, there were jito appointed after the Jokyu War of 1221—in which the Bakufu vanquished the Kyoto Court and confiscated lands from its adherents— to administer such confiscated lands. While honpo-jito could extract from the lands they administered whatever was sanctioned by custom, shinpo-jito could only take carefully specified perquisites. Says the mirensho: [44]

Shinpo-jitd are those who received grants of confiscated lands, and so forth, at the time of the Jokyu War. (Their shares of landed income are spelled out in detail in Bakufu documents (gloss).)

Of course, jito tried to take more than their dues. The mirensho says: [45]

"Cumulated perquisites" means that a man is already a honpo-jitO and has full rights over and benefits from some land, and then in addition he takes the shares allowed a shinpo-jitO. This is pluralism, and will be punished."

The prescribed loyalty of gokenin was to the Bakufu as such. Many may have had deep feelings for the Minamoto, whom the Hojo had ousted in 1203. The Hojo therefore used their own housemen (mi-uchi)—who could be, but generally were not, of gokenin stock—in many important posts in their house administration, and, increasingly during the last decades of the Kamakura regime, also in Bakufu posts. Under the strong leadership of Adachi Yasumori (1231-1285)'° the gokenin had striven to reassert their hegemony over Bakufu affairs, but had been defeated in a short but bloody civil war in 1285." Since that time the mi-uchi had been firmly in control. When the mirensho was written, the power over the land had turned a full circle: from dominance by civil nobles to dominance by local warriors. Since these warriors were increasingly impoverished by compulsory military service and inheritance divisions, during the last decades of Kamakura rule they were crowded out by a new, rather informal service aristocracy, the mi-uchi." The situation is graphically described by the mirensho: [49]

Outsider gentlemen (tozama) are jito and gokenin who serve the shogunal house (shogun-ke)."

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Insider gentlemen (mi-uchigata) are the vassals of the Lord of Sagami [that is, the head of the Hojo clan]. 94

The Hojo leaders and the top mi-uchi met in a secret Cabinet, the yoriai: [33]

The important men (mune no hitobito) of the HySjSshu They discuss policy in secret (naidan)."

ESTATE OFFICIALS, COMMONERS, A N D SERVILE

form the yoriai.

GROUPS

Having considered the upper levels of this society, let us look at the commoners and those below them. Under the jito and the civil estate patrons (honke) or proprietors (ryOke) there was an intermediate class of "middle management" who administered the estates—the term used was kannOor "promotion of agriculture." These functionaries were remunerated out of the surplus of the estates but did no farming themselves. Documents of the time often refer to these men, who were literate, numerous, and socially mobile. The mirensho lists them as follows: [54]

Headmen (myOshu),97 bailiffs (shokan), managers (gesu)?* collectors (kumon),99 surveyors (tadokoro), and sheriffs (sOtsuibushi).100 (The lastnamed have the police and magistrate rights and duties of jurisdiction in the area and are also called Police Commissioners (kebiishi) (gloss).) These and other estate officials are managed by the jito or the rydke who employed them ("manages" implies hiring and dismissal (gloss).) 101 However, anyone holding an individual Bakufu benefice is not bound by private orders issued by jito or ryOke, except in matters concerning the dues and rents that he owes them. 102

The peasants' dues and rents were divided between proprietors and jito. A subordinate of a jito or of a proprietor—though he might hold a Bakufu kudashibumi—was in duty bound to levy the dues and rents as agreed between jito and proprietor. Otherwise, there would invariably be a lawsuit in a Bakufu court between jito and proprietor. I think that is the reason behind the exception concerning dues and rents. Dismissal by proprietors of Bakufu-appointed administrators had been a bone of contention during most of the thirteenth century. By the time the mirensho was written, the Bakufu had won. If the proprietor wanted the administrator sacked, he had to appeal to the Bakufu if the administrator was a jito, and to the jito if the administrator was a jito subordinate. In many cases the trouble could not arise because the land had, with the Bakufu's blessing or even prompting, been divided between

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jitO and proprietor. Each would have full ownership of his part of the estate (ichien-chigyo) and the full competence to hire and fire (shinshi) in that part. Middle management could not freely bring suit in Bakufu courts. The mirensho states: [56]

Only jitO and gokenin can bring cases before Bakufu courts as they please (jikiso). Headmen (myOshu), bailiffs (shOkan), and those below them can sue only when they obtain letters of recommendation from the local 103 jitO

Ordinary people without management positions, of course, needed letters of recommendation.104 The definition of this majority, squeezed in between the article on middle management and that on letters of recommendation, laconically states: [55]

Nondescript people (kO-otsuninJ'05 are peasants (hyakusho) civilians (bonge).'"6

and other

This group had no privileges, particularly not in tax and criminal law. There were also other classes such as Buddhist and Shinto clerics (we know from other sources that their status approached that of samurai)101 and imperially privileged artisans, who were the court's retainers (kugonin)lM and came under imperial courts. There were merchants, too, formally bonge like the poorest peddlers but possessed of economic power, which the Bakufu had tried in vain to curb109 by a series of debt-repudiating decrees or tokuseidesigned to benefit the warrior class. At the bottom of society were the zOnin or half-free, and nuhi, slaves. Nuhi and zOninu 1 crop up in the list of chattels treated under zatsumusata. CHATTELS,

CONTRACTS, AND

DEBTS

Zatsumusata is the second great division of legal cases which concerned rights derived from land law and its repercussions on what we might term administrative law and status law. Zatsumusata concerned chattels, contracts, and debts. The mirensho enumerates zatsumusata as follows: [15]

Zatsumusata are suits concerning money loans with interest (risen),"2 grain loans with interest (suiko),"3 bills of exchange payable in money (kaesen)'" or in grain (kawashimai), mortgage in the guise of sale for a limited period (nenki), things borrowed with interest (sho-oimono), things borrowed without interest (sho-karimono),'" deposited objects (sho-azukarimono), deeds of sale (hóken), sale of paddy or dry fields in perpetuity (kokyaku-denpata)"* [except matters concerning title, for these were shomusata], slaves (nuhi), semi-free workers (zonin), and abduction of servants (kdin)."1 Suits of these and similar kinds are called zatsumusata. In

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the Kantò where the Bakufu is in direct control" 8 the Monchujo"' tries zatsumusata cases; the Monchujo also takes care of "Distribution" functions [that is, makes sure that parties cannot know which chamber will handle a specific suit]. Within Kamakura, however, such cases come under the Mandokoro120 [the shogun's secretariat], as do all cases concerning the [16] administration of corvée and taxes due the shogun. As for zatsumusata cases in the Rokuhara tandai jurisdiction [western Japan], the body of five chambers of Rokuhara hikitsuke [trial court] judges appoint a fellow judge who is to report on each case, and divide cases from the various provinces among themselves equitably. In the process of case distribution, the chairman of the chamber whose turn it is to hear a case signs the initial pleading, and immediately dispatches the documents of the case to the assigned judge. . . . m On the whole, procedure in zatsumusata cases was thus less elaborately equipped with statutory guarantees for just and equitable decisions. 122 In practice, however, a procedure very similar to that of shomusata cases was followed. 123 CRIMINAL

CASES

Finally, we come to Bakufu handling of what we would call criminal cases, or kendansata. As will be recalled, the majority of criminal cases were handled by the jitO. Criminal cases could, however, be heard by Bakufu courts. There might be a complaint over a jito's verdict, or someone, such as a gokenin, who had the necessary status to do so, might bring suit directly in the Bakufu's court. Provincial constables (shugo) who had tracked down criminals for serious offenses might bring them to Kamakura or Rokuhara for trial. 124 Finally, the accused might be a gokenin, in which case the Bakufu courts were his venue. 125 The mirensho explains: Kendansata are suits concerning rebellion (muhon), night attacks,126 robbery with violence,127 secret theft, 128 brigandry in the mountains, piracy, homicide, wounding with a sharp weapon,129 arson,' 30 battery and assault by beating or kicking, robbery with threat of violence, and daylight robbery (but violence committed while hunting down a robber comes under shomusata procedure (gloss)). Further, footpadding131 (robbing people on the road (gloss)), or creating a panic and then stealing the valuables which people may drop when running away, or seizing and raping women, or harvesting another's paddy or dry field132—trials for such and similar133 activities are called kendansata. In the Kantó, the Samuraidokoro, the Bakufu office for vassals and war,134 has the competence to try such cases. In the Kyoto area, such cases come under the special criminal judges of the Bakufu (kendan tdnin). As for the process of case distribution, the Samuraidokoro or the kendan tdnin [as the case may be]

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sign the initial plea from the plaintiff and immediately send the case to the judge appointed to try the case. As for the other procedures, they are like those in the hikitsuke courts.135

The last sentence is noteworthy. It implies that in the Bakufu court, criminal cases were adjudged on the basis of the adversaries' marshalling of evidence, and not on confession. Concomitantly, torture was not used, nor ordeal—for example, having the accused and/or the accuser plunge their hands into a pot of boiling water and examining the wounds. Torture was authorized by the provisions on criminal procedure in the ritsu-ryo, and the boiling-water ordeal belonged to even older strata of the national law.136 Torture as well as ordeal were, however, practiced in the estates (where, as we have seen, much imperial and even older law survived as shoen-ho), particularly in those administered by temples and shrines. In temple and shrine estates, another institution reminiscent of canon law was introduced, namely, prosecution by the estate authority on the basis of widespread—though anonymous—rumor. 137 Otherwise, in Bakufu law a criminal case required that the accuser state his identity in court, make a complaint, and argue his case there, facing the accused and his counter-pleading. The only exception from the principle requiring the presence of a plaintiff in Bakufu criminal and civil cases was the so-called taihonsankajo.13S This was a group of crimes considered so serious that the shugo could prosecute them ex officio, and while prosecuting demand the extradition of accused persons even from estates which had obtained immunity from entry by the central authorities (funyu).139 From 1199 such crimes were desertion from military duty, rebellion, and homicide. In 1232, night attacks and robbery in certain types of places, such as in the mountains or at sea, were added to the list.140 E N F O R C E M E N T OF THE L A W

Surveying the entire field of Bakufu law, one may ask whether it was, by our standard, a legal system at all. The most important condition for calling a norm system a legal system is predictability of enforcement. On the low level, in the estates, enforcement was predictable. The estates were, if anything, over-administered. Likewise, there is little doubt that law enforcement in Kamakura and its adjoining provinces141 was reasonably effective by premodern standards. In Kyoto the Bakufu tandai considerably improved law enforcement 142 by taking over the functions of the corrupt and understaffed imperial police, the kebiishi. Even in outly-

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ing areas like Kyushu, reasonably good police order reigned in Kamakura times, not least because of the martial law measures143 introduced in response to the Mongol peril. AkutO or marauding bands could certainly terrorize peasants and civil proprietors; but no akutO activity was strong enough to threaten the Bakufu militarily, and when it fell in 1333 it was because of an imperial putsch in addition to treason within its own ranks, rather than because of anarchy. The Bakufu's most important problem was how to uphold the peace between the powerful families or kenmon. One device of the Bakufu was to clothe its political decisions in the trappings of legal judgments, making adverse decisions more palatable than they would have been if made in the form of statute law. The Bakufu much preferred the kenmon families to brawl in its courts than to feud among themselves. We shall now turn to the devices used by the Bakufu to induce the kenmon to play the power game according to the rules of the Bakufu. The Non-finality of Litigation First, litigation could go on and on, thus permitting continual adjustment to the actual power relationship between the parties. The principle ne bis in idem—which means that once the deadline for appeal has expired, or the ultimate appeal allowed by the system has taken place, the parties cannot, even if they agree to resume their quarrel, bother the court again with the same matter—was not generally applied.144 Most Hyojoshu judgments were, by and by, obeyed. But the power of the central government was weak, and law enforcement was uneasily divided between shugo, who were hampered in every move by estate immunity (funyu) and jitO, who mostly appear in the documents as expansive local bullies.145 It might therefore often make more sense for a weak plaintiff, for example, an absentee civil aristocrat who had obtained a favorable but practically unenforceable judgment over a strong, locally entrenched, encroaching jitO, to accept relitigation rather than to demand that the earlier decision be upheld.146 The material law gave the possessor, or holder of chigyo147—even illegal chigyo—important advantages. The outcome of relitigation might therefore be more consonant with the real relationship of power between the parties. This institutionalized adjustment to changing facts was the secret of the Hojo family's long rule; but the re-hashing of the same old gravamina overburdened Bakufu courts, and in periods of relative strength the Hojo therefore endeavored to enforce, at least partially, the ne bis in idem principle so natural to us. One such device was the fueki-ho or immutable law. Says the mirensho:

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95

Fueki-hol" means that whether a certain Bakufu decision was right or wrong can no longer be reconsidered by Bakufu authorities. Judgments made by the three generations [of famous Hojo shikken], Yasutoki, Tokiyori, and Tokimune [that is, up to 1264], and by their predecessors, are immutable.

Statutes granting immutability had started a century before the mirensho and had been gradually extended. There may even have been attempts to make decisions from the reigns of later shogunal prime ministers immutable. The matter is not of great importance, for when the mirensho was written another institution, the tanin-wayo149—a final, enforceable agreement made by parties who were strangers to each other, and registered by the court—had become the practical means to adjust the rules of law to the realities of power. What mattered to the Bakufu was not that the tanin-wayo was just, but that it was clear.150 Once signed, renegotiation was possible. But efforts at relitigation—even when the facts had changed—were ex officio refused by Bakufu courts. The Bakufu favored tanin-wayo. If, for instance, a civil proprietor, exasperated at the harassment by the jitd, unilaterally declared that he would cede, say, half the land to the jitd,151 making each of them sole owners (ichien-chigyo) on either side of a demarcation line, the Bakufu would register the partition as the final arrangement, even though the jitO might have preferred to struggle on to grab more. Here we have a clear example of new material law—in this case, a very "Western" watertight contract regulation— emerging from the interstices of procedure. Fact and Law Secondly, there was no clear demarcation between fact and law in the adversary pleading by the parties. If the parties chose to ignore—or were truly ignorant of—the existence of some Bakufu regulation (other than a registered enforceable agreement, tanin-wayo) that bore on the land or income they wrangled about, the Bakufu court would adjudge the case according to the parties' pleadings. The principle jura novit curia—the court is supposed to know all the law bearing on the case—was not recognized.152 Viewed from the angle of contemporary realities, this was by no means unreasonable. Few of the judges had, as we saw, formal legal training. Moreover, since documentary evidence was the most important evidence it was reasonable that the parties themselves dig up all documents bearing on the case and lay them before the court. A distinction might have been created, say, along the following lines: "It is up to the parties to lay before the court individual decisions by the Bakufu such as

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land grants (kudashibumi) or land confirmations (ando-jo). The court will, ex officio, apply all generally valid rules." However, such a distinction would have required not only the development of clear differentiation between statutes and decisions—to the detriment of the Bakufu's administrative flexibility—but also the organization of a statute publication system beyond the possibilities of the communications technology of the era.153 Finally, the implementation of jura novit curia would have placed considerable strain on the Bakufu's archives. The documents of cases resolved by the Bakufu (kotogire monjo) were deposited in the Bakufu archives in Kamakura and Rokuhara. It would have been much more difficult to make sure—and to guarantee to the public—that copies of all letters from courts and other authorities were retrievable. Merely keeping track of wayo was enough of a strain on the Bakufu's limited bureaucracy. Only from the sixteenth century did all chancelleries in Europe routinely copy and index all edicts and judicial decrees emanating from them, the Papal and the English chancelleries having been the pioneers in this important development. Kings at this time began staying in their capitals all the year round instead of incessantly traveling from crown mansion to crown mansion to consume their income in situ. Kings became sedentary inter alia because their office staff, traveling with them, could not lug their archives and so could not avoid issuing contradictory letters. The Japanese imperial government had overcome this stage in the sixth century when it erected a capital containing permanent abodes for the emperor and his staff of officials and a grain tax transport system to supply them. But the problem of administrative continuity remained a grave one for the Bakufu, which was, from beginning to end, a minimally staffed, 154 geographically off-center, technically rather unspecialized, junta sort of government.155 The erection of a separate building to house the government was such an event that it was celebrated with great festivals and with lengthy entries in the Bakufu chronicle, the Azuma kagami. Salaries of Bakufu officials, even the highest, came from the lands they held, and they therefore spent much time away from Kamakura. Given all this, the principle that those who wanted anything from the Bakufu had to present before it all the evidence, including copies of the Bakufu's own edicts, was therefore economically sound. But it militated against a Bakufu legal system squarely based on the consistent application of its own statutes, decisions, and precedents.156 If, for example, one of the parties produced a Bakufu edict (kudashibumi) from Yoritomo's time, he had a great chance of winning his case, even before the principle of fueki-ho was made part of statute law. However, if he was ignorant of its existence, it was highly probable that the court was also. On the other hand, it is under such conditions that the practical

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side of jurisprudence—the law of evidence, the art of detecting fraudulent documents, the refinements of adversary litigation—prospers." 7 This happened in Kamakura Japan, and in a few places in early medieval Western Europe, but not in the realms which had taken greater strides in bureaucratic technology, such as Sung and Yuan China, or the empire of Byzantium.

Dori Thirdly, there was an element of unpredictability built into the very core of the Bakufu system of norms. It was called dori, or "reason." The parties appealed to it in their pleadings to the courts. The judge based decisions on it, when the parties or their own experience had not supplied them with stronger arguments, such as rules or clear precedents. And Bakufu legislators used it, when they felt that a deviation from imperial law was necessary for the new ruling class of warriors.158 Used in legal contests, dori did not mean "the eschatological pattern of history" as it meant to contemporary Buddhist thinkers. Nor did it mean "equity" in its common law sense. That "equity" consisted of remedies invented by the canon law-trained chancellor in order to overcome the reluctance of common law judges to extend protection to new kinds of rights. In short, "equity" required a configuration of conflicting professional interests unique to early medieval England and without parallel in Japan. Historically, dori as a legal concept was a collective term for the provincial warriors' aspirations. They had been increasingly angry with the efforts of the civil nobility of the late Heian period to use their hegemony over the legislative apparatus to extract more income from the land without giving any credit or security of tenure to the warriors who managed and secured these lands. This was the fundamental resentment which Yoritomo utilized in his 1180 rebellion. Once securely entrenched in power, the Hojo leaders, eager to improve their tainted image by the politics of bumin or paternalism,159 began to realize the value of those Confucian principles which the government of civil nobles had always honored verbally but for centuries flouted in practice. In 1232 the shogunal prime minister Yasutoki prescribed an oath for the Hyojoshu members in their judicial function, an oath which possibly even from the beginning was designed as an appendix to the JOei Code. In this oath dori was defined negatively. The judge who is not swayed by friendship or animosity toward the parties, or by fear of impressing unfavorably other members of the bench, particularly the powerful landed families (kenmon), but forms his opinion squarely on the facts of the case and speaks his mind is said to be motivated by dori.160 Concepts very like Western natural law—ethical ideas built into the

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physical universe, binding upon gods, men, and beasts, and sanctioned by calamities—were known, since they formed part of the Confucian world view. The term most often used for them was tendo.16' But tendO was not synonymous with dori. Dori was clearly understood as manmade and relative. About 1256 Yasutoki's brother, the commissioner (tandai) and later shogunal deputy prime minister (rensho) Shigetoki, wrote a series of maxims for his sons who were also Bakufu leaders in which he reminded them that strict adherence to dori might lead to material injustice (higagoto), and that, on the other hand, acting contrary to dori might on occasion serve the cause of justice.162 Thus, the meaning of the concept had shifted from "being upright" to "following the consensus prevailing among the warrior community." This is the reason why dori—while mitigating the rigors of imperial law and injecting an element of pragmatism into the minds of judges—can be said to have hampered the growth of legal thinking. It was very easy for the judge, particularly when his choice of solutions was limited by the fact and law presented by the parties, to search his own mind for certainties. If he found them he could make them part of his judgment, on the ground that they were not just his own ideas but part of dori, understood as the consensus of the ruling class. But whenever ddri was quoted, a clear precedent or a clear interpretation of a statute could not emerge, for dori decisions were inextricably bound to all the facts and imponderabilia of the individual case. This was beneficial to the perpetuation of Hojo rule, but detrimental to the growth of jurisprudence.

CONCLUSION

The study of Japanese medieval law—in particular land law—helps us to understand the history of the country. In a salutary manner, it diverts our gaze from dynastic changes, battles, and panache to the force that moves history, namely, the struggle for control of the means of production. Within this study, inquiry into Kamakura law is particularly fruitful. For Kamakura society was not only unique among Asian societies; it also was strikingly similar to our own. It was largely a nonideological society. Thus it differed from societies dominated by Confucianism, Hinduism, Islam, and Christianity. The Bakufu did not support any orthodoxy.163 It was a pluralistic society. Many groups, elites and nonelites, strove with each other for power. It was a rights-conscious society, or, rather, the central power was weak enough to permit competing groups to speak up and call their claims for more of the cake "rights." Finally, it was a society whose rulers had learned—to some extent—how to cope with contradictions and change. Three means were employed. First, there was vertical

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segmenting of the law machinery, making for great predictability at the bottom and less predictability at the top, while carefully guarding the rhetoric of predictability even at this level. This induced power elites to argue in court rather than to feud or rebel. Second, there was the cultivation of the ability to let sleeping dogs lie. Before the debacle of 1333, court and warriors fought only once, in 1221, and the outbreak in 1333 became a catastrophe for the Bakufu only because some of its own kenmon, notably the Ashikaga, turned against it. Not even the last, rather dictatorial Hojo rulers tried to impose one law on the whole country. Third, the Hojo perfected indirect rule into a fine art, using the courts to defuse grave political issues piecemeal. The Sata mirensho may be the first law book in the world which shows how to do just that.

NOTES

Works frequently cited have been identified by the following abbreviations: CHSS: Sato Shin'ichi and others, Chusei hdsei shiryO shu (Collection of sources on the history of the medieval legal system). FUD: Ishii Ryòsuke, Chusei buke fuddsan soshOhd no kenkyu (Studies in the law of real property litigation among the medieval warriors). GAI: Ishii Ryòsuke, Nihort hOseishi gaisetsu (Outlines of the history of Japanese law). GS: Go-seibai shikimoku (Compilation of Bakufu decisions, or Jòei Code). MIR: Sata mirensho ("A book for those unskilled in legal matters"). SAI: Seno Sei'ichiro, Kamakura bakufu saikyojó shu (Collection of judgments by the Kamakura Bakufu). SOS: Satò Shin'ichi, Kamakura bakufu soshoseido no kenkyu (Studies in the litigation system under the Kamakura Bakufu). TSU: "Tsuika-ho" (Supplementary statutes), in Sato Shin'ichi and others, CHSS. 1. Ishii Ryósuke, Nihon hOseishi gaisetsu (Outlines of the history of Japanese law), 3rd ed., rev. (Tokyo: Sóbunsha, 1976), pp. 253-254. Hereafter cited as GAI and followed by page number. 2. "Tsuika-hó" (Supplementary statutes), statute no. 561, in Sato Shin'ichi and Ikeuchi Yoshisuke, Chusei hdsei shiryo shu (Collection of sources on the history of the medieval legal system) (Tokyo: Iwanami, 1955), vol. 1, Kamakura bakufu hd (The law of the Kamakura Bakufu). Hereafter, "Tsuika-hó" are cited as TSU and followed by statute number. Chusei hdsei shiryO shu is cited as CHSS and followed by volume number and page number. See also Sato Shin'ichi, Kamakura bakufu soshOseido no kenkyu (Studies in the litigation system under the Kamakura Bakufu) (Tokyo: Meguro Shoten, 1946), pp. 95-96, 104-105. Hereafter cited as SOS and followed by page number. 3. See GAI, pp. 215-216 and Seno Sei'ichiro, Kamakura bakufu saikyojO shu (Collection of judgments by the Kamakura Bakufu), 2 vols. (Tokyo: Yoshikawa Kòbunkan, 1969), 1/173; 2/Chinzei/129, 190. Hereafter cited as SAI; the first

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figure is the volume number, and figures after a slash refer to the number of the judgment. All cases in vol. 1 are Kanto cases ("1/ . . ."); in vol. 2 ("2/ . . .") Chinzei means a Kyushu Branch Office. Otherwise, references in vol. 2 refer to Rokuhara Branch Office cases. 4. SAI\, p. 436. 5. TSU72, 140-141, 205, 217, 266, 350, 453, 551, 554, 557, 635. See also article 30 of Go-seibai shikimoku (Compilation of Bakufu decisions, or Joei Code), in CHSS 1, pp. 3-55. Hereafter cited as GS and followed by article number. See further Ishii Ryosuke, ChUsei buke fudosan soshoho no kenkyu (Studies in the law of real property litigation among the medieval warriors) (Tokyo: Kóbundò, 1938), pp. 32, 307. Hereafter cited as FUD and followed by page number. See also SOS, p. 46. 6. FUD, p. 628. 7. See, for example, TSU 699, which tries to curb immoderate litigation, and TSU 72, which tries to stop piracy through having ships registered. For the authoritarian changes between 1284 and 1300, see SOS, pp. 84-86. 8. This fact is reflected in the existence of three systems of law operative together: kuge-ho, honjo-ho, and buke-hd (GAI, pp. 203-206) and in the upholding of a highly diversified system of law enforcement (GAI, pp. 289-294). 9. See the Sata mirensho, in CHSS 2, Muromachi bakufu ho (The law of the Muromachi Bakufu), pp. 355-376. Hereafter, the Sata mirensho is cited as MIR and followed by page number. In Monumenta Nipponica 35 (1980): 403-435, I published a transcription and a translation of it, but space allowed no commentary. In the present article, I try to explain, based on the text, what went on in the courts. In order that the Monumenta Nipponica text and the present exposé may be used together, the following format has been employed: A figure within brackets [ ] where a mirensho quotation begins refers to the article number in the Monumenta Nipponica translation; in such quotations, words enclosed within parentheses ( ) are terms found in the original text; "(gloss)" indicates an explanatory comment inserted by a medieval user, while words within brackets are explanations and references inserted by me. 10. TSU68, 69, 84, 89; SAI 1/12. 11. TSU483, 631, 700. For the defense organization laws against Mongol invasions, see TSU465-475, 600-601, 634. 12. TSU42, 65; SAI2/Chinzei/25. Imperial courts were necessary for the simple reason that shden authorities could only handle persons resident in the shOen, and Bakufu courts rejected suits against those who were not subjected to its shinshi or power to hire and fire (FUD, p. 15, note 24; TSU87). 13. GAI, pp. 251-253. For a brief but lucid explanation of honke and ryOke, see John Whitney Hall, Government and Local Power in Japan, 500 to 1700 (Princeton, New Jersey: Princeton University Press, 1966), pp. 111-112. 14. TSU 58; GAI, p. 277. The right to levy fines and to confiscate criminals' holdings was regarded as an important perquisite which could be shared between honke/ryoke and jito (TSU 14; SAI 1/72). For cooperation in law enforcement between them, see TSU 407, 409-410. Prisons were under shugo administration at least from 1284 (TSU 537-539). Tkx enforcement, too, was the jitd's province (£4/2/74). 15. SAI 1/16,122. Class actions were possible (FUD, p. 84, 233). 16. TSU637; SAI\/\\6. 17. TSU536; FUD, p. 263.

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18. As in medieval Europe, many religious institutions maintained their own armies (TSU70,102,113, 200-202,280; SAI1/129, 130). 19. Thus, there were two kinds of buke-ho: the Bakufu's and the kaho or laws of the military kenmort. See GAI, pp. 209-211, and Sato Shin'ichi and others, CHSS 3, part 1, Buke kaho (The house laws of the warriors), no. 1 ("Utsunomiya Code") and no. 2 ("Munakata Code"). 20. TSU310-316; SOS, pp. 197-256; GAI, pp. 273-275. 21. CHSS 2, Muromachi bakufu ho, pp. 360-361. 22. CHSS 2, p. 369. 23. CHSS 2, p. 374. 24. CHSS 2, p. 362. 25. GAI, p. 218. Jurists (myobO hakase) ranked with historians, sutra experts, magicians, doctors, and Confucianists. 26. GAI, pp. 207-208. 27. The Confucian and Buddhist influence on both was strong (GAI, pp. 213215). 28. Shoen-ho mostly consisted of customs, some of which belonged to the area's folk law, while others had filtered down from the imperial codes. The honjo-ho was the "droit administratis of the shoen; more of it was written down, and it differed less from shoen to shoert than the shden-hO did. See GAI, pp. 204, 208,233-238. 29. TSU648; SAI 1/38, 77,117, 234, 264. 30. See SAI 1/32, 244; imperial local administration, too, was less defunct in Kamakura's heyday than often imagined. 31. See, e.g., the Bakufu's shin-shikimoku (TSU 491-528) of 1284. 32. See the informative article by Jeffrey P. Mass, "The Origins of Kamakura Justice," Journal of Japanese Studies 3 (1977): 299-322. 33. TSU 168, 211; FUD, pp. 99-102, 110, 280, 344, 353-355, 362-364, 619. If the parties did not marshall clear evidence, the court would not adjudge the point in question (SAI 1/129, 166, 262; 2/Chinzei/tt, 137). Parties pleaded without counsel. The Bakufu, however, tolerated various forms of representing experts (FUD, pp. 19-23, 386-390). The types of evidence admitted were (1) documents, (2) witnesses, as summoned by the parties, and when truth refused to stand clear to the judges, (3) oaths (FUD, pp. 296-313; TSU93). 34. A more neutral term was saikyo, or judgment. See SAI 1/106, p. 130; FUD, p. 225. 35. When the mirensho was written, the original system of determining forum, viz. by the parties' status, had been discarded in favor of the criterion "type of case." For this development, see SOS, pp. 35-42, 56, 59, 63, 93, 125, 146-158. For a list of typical shomu rights, see SAI 1/111. 36. FUD, p. 6; SOS, p. 61. Text in MIR, p. 356. History and commentary in SOS, pp. 62-104. 37. TSU354, 546-550, 576. 38. FUD, pp. 51, 57-60, 75-78. 39. He belonged to the Monchujo (SOS p. 124). 40. SOS, pp. 88-89 discusses the scope of this provision. 41. TSU215, 547; FUD, p. 79, note 121. 42. FUD, pp. 89-90. 43. FUD, p. 128. 44. FUD, pp. 445-450. Text in MIR, p. 358. The court could even permit the

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parties an extra round, fukumon (TSU 332; FUD, p. 199). For a temporary effort to prohibit this delay, see TSU 484. It was the parties' responsibility to convey their pleadings to the adversary (FUD, p. 123) and to keep their lords and the court informed (FUD, pp. 126,133). 45. FUD, pp. 143,192. 46. FUD, p. 139 ff. The court could decide that the case was sufficiently clear to be decided without confrontation (GS 49). 47. TSU 30, 223-224, 303, 575, 688; SAI1/129, 2/Chinzei/\53. See also GS 14, 35; FUD, pp. 30,141-149. 48. FUD, pp. 152-156. A lord could be responsible for his man's appearance in court, and was therefore informed of meshibumi (FUD, pp.161-162, 440, 453-466). 49. The sanction rules for noncompliance were repeatedly changed (FUD, pp. 167-174,181-184). 50. TSU 232; FUD, p. 81, notes 122-123; FUD, pp. 164-167, 176. Text in MIR, p. 357. 51. FUD, pp. 191-195,208. 52. In 1284, TSU 550 ordered the trial courts (hikitsuke)—who had until then been allowed to propose several options to the HyojOshu—to prepare from now on only one set of conclusions, thus making the hikitsuke more responsible organs (SOS, pp. 70-72). 53. FUD, pp. 208-210; text in MIR, p. 358. 54. For the relationship between hikitsuke (est. 1249) and HyOjoshu (est. 1225), see FUD, pp. 206, 216; SOS, pp. 67, 91. For the pro-gokenin reforms of 1284, see SOS, pp. 69-74, and for the pro-mi-uchi backlash of the following decade, see SOS, pp. 76-82. After a short period of abolition, hikitsuke were reestablished in 1295. 55. Kamakura could also order Rokuhara to investigate {SAI 1/170). Rokuhara would suspend judgment if a related case was pending in Kamakura (SAI 2/ 6). During the Kamakura period, a growing caseload necessitated grants of more independent power to the Rokuhara HyOjOshu. But the Kamakura HyOjOshu never surrendered its rights to direct the case-handling of the Rokuhara HyOjOshU, to inspect the documents of pending cases, and to revise its judgments, on appeal or sua sponte. Thus, the Kamakura HyOjOshu remained the "Supremest Supreme Court." See SOS, pp. 240-249; GAI, p. 274. 56. FUD, pp. 212-213; GAI, pp. 268-269. 57. Text in MIR, p. 360. 58. MIR, p. 361. 59. TSU 694. 60. FUD, pp. 215-217. 61. FUD, pp. 219, 222-223. Text in MIR, p. 359. 62. Professor Ishii Ryosuke (FUD, p. 214) thinks majority decisions were made; Professor Sato Shin'ichi (SOS, p. 67) agrees with this view. The problem —first pointed out by Dr. James Kanda in a Harvard lecture—is that the statutes and judges' oaths of the period have a word for consensus decision, kenpo, but none for vote-taking. 63. Suits between brothers and between spouses were admitted, but not suits against parents (TSU 143), or against one's lord (TSU 265). See also FUD, pp. 69-74. But in this respect, a jitO was not a hyakusho's lord. Their relationship

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was basically economic, not "feudal," and a hyakushô could therefore litigate against a jitO, as in SAI 2/9. See also SOS, p. 55, and GAI, p. 239. 64. FUD, pp. 52, 237, 282-295. 65. Text in MIR, p. 359. 66. FUD, p. 282. 67. SOS, pp. 166-172. 68. For evidence that this naidan was actually a meeting of the yoriai or Cabinet, see FUD, p. 286, note 463. In Muromachi times, naidan came to mean hikitsuke. See Nihon rekishi daijiten s.v. "NaidanshU." Cf. note 95. 69. On this form of appeal (osso), see TSU All, 658, 661, 671, 678; FUD, pp. 283-284; GS 6. The osso approval decision was not adversary {FUD, p. 289, note 472). Text in MIR, p. 359. 70. See discussion in SOS, pp. 170-172. 71. TSU355, 636; FUD, pp. 290-293. Text in MIR, p. 360. 72. GS 31. 73. FUD, pp. 294-295. Text in MIR, p. 360. On naiso, see MIR, p. 360. 74. TSU9,19, 29, 40, 77-79, 148, 261,295. 75. TSU 139, 183,433. 76. TSU9%, 613. 77. Text in MIR, p. 363. 78. TSU567; FUD, p. 246, note 398. 79. TSU1X2. 80. On these ando-bugyò, see also TSU 555. 81. Text in MIR, p. 360. Cf. text at note 119. 82. On the bakufu's endeavors to strengthen its gokenin vis-à-vis the honke/ ryòke, see TSU210, 264,458. 83. Text in MIR, p. 361. 84. MIR, p. 361. See also GAI, p. 219. 85. TSU463,609,639. 86. FUD, p. 322; SOS p. 119. Text in MIR, p. 361. 87. TSU 186, 260; FUD, p. 346; GS 13,15. 88. Text in MIR, p. 361. 89. Texts in MIR, p. 361. See also TSU94 and GAI, pp. 247-248. 90. SOS, p. 95. 91. See TSU 644. 92. SOS, pp. 104-121, esp. pp. 117-119. 93. To their service belonged duty to pay the Kantò kuji tax (SOS, p. 119). 94. SOS, pp. 105, 108-116. Text in MIR, p. 362. 95. Text in MIR, p. 360. Cf. note 68. 96. The most famous kannd law was the statute on tax incentives for doublecropping of 1264 (TSU 420). The law of 1263 (TSU 418) prohibiting hunting with fire and fishing with poison may be the first environmental protection law on record in any country. Litigation was suspended during the peak seasons of agriculture (FUD, p. 150). 97. TSU562; GAI, p. 243. 98. SAI 1/99, 136. 99. SAI 1/59. 100. SAI 1/66. 101. I.e., the authority who had appointed could also dismiss.

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102. Text in MIR, p. 362. 103. Text in MIR, p. 362. 104. FUD, pp. 10, 25-27, 64-65, 68 with note 104; GS6; SOS, p. 43. 105. TSU 168, 238, 275; SAI 1/13 and 1/20; SAI 2/Chinzei/13; GAI, p. 220. A more generic term for peasants was domin (TSU 182, 187, 288). Agricultural laborers were called genin (TSU207, 209). 106. TSU383; MIR, p. 362. 107. On monks and the criminal law, see, e.g., GS 34, 40. 108. On the status of shöen-bound and the growing number of shöen-free artisans, see Nagahara Keiji, Nihon no chüseishakai (The society of medieval Japan) (Tokyo: Iwanami, 1972), pp. 198-205. 109. TSU 116, 120, 139,145, 150, 183,305,476,529,556,598. 110. TSU 660-675. See also Ishii Susumu and others, eds., Chüsei seiji shakai shisö (Tokyo: Iwanami, 1972), part 1, Nihon shisö taikei (Conspectus of Japanese thought), vol. 21, p. 122n679. 111. Prodded by the Kyoto government, the Bakufu tried energetically to stamp out debt slavery and sale of humans, but both tended to crop up again during famines. See TSU 15, 110-112, 114-115, 142, 156, 178, 181, 287, 299, 309, 393; and GAI, p. 221. On recovery of runaway slaves, see TSU215,291. 112. raí/559,660,663,680. 113. TSU 17, 55,180,306, 395. 114. TSU667, 673. 115. TSU668-669. 116. TSU 590. 117. TSU286, 393, 709. 118. SOS, pp. 45n3, 122. 119. raí/163-167, 352, 560; SOS, p. 126. Cf. text at note 81. 120. SOS, pp. 37-39,125-127; GAI, p. 267. 121. Text in MIR, p. 356; for explanation of zatsumusaka's scope, see GAI, p. 316. 122. SOS, p. 66. 123. SOS, pp. 121-129. 124. TSU 117. 125. SOS, p. 148. 126. TSU 705. 127. TSU22. 128. TSU284, 706. 129. TSU 704. 130. TSU 285, 708. 131. raí/714. 132. SOS, p. 84; TSU 713, of 1310. SAI 2/48 of 1309 still treats the offense under the civil law procedure. So, the mirensho is probably later than 1309. 133. Such as forgery (GS 15). See also SAI 1/262. 134. SOS, pp. 37-39,130-133, 150,154-155; GAI, p. 267. 135. Text in MIR, p. 357. Commentary in SOS, pp. 129-165, esp. p. 156; GAI, pp. 296-297. The distinction of these three kinds of sata (shomu, zatsumu, kendan) was probably first developed in the shöen-hö (FUD, p. 5). The Bakufu probably only adopted it after 1249 (SOS, p. 52). On the sorting out of criminal matters from civil cases, see FUD, p. 55. On the absence of torture in Bakufu criminal procedure, see GAI, p. 293.

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136. For milder forms of judicia Dei in use in Bakufu civil law, see TSU 73, 157, and FUD, pp. 302-305. For the harsher procedures in Muromachi times, see FUD, pp. 631; GAI, pp. 215. 137. F. Jouon des Longrais, Âge de Kamakura: Sources d'archives (Tokyo and Paris: Maison Franco-Japonaise, 1950), pp. 395-396. 138. GS 3; TSU 31, 368, 532; SAI 1/106, 212; SOS, pp. 134-136; GAI, pp. 276-277. 139. See the discussion on the scope of funyu in SOS, pp. 138-139, 145-147, and in Jeffrey P. Mass, Warrior Government in Early Medieval Japan: A Study of the Kamakura Bakufu, Shugo, and JitO (New Haven and London: Yale University Press, 1974), pp. 213-220. 140. GS3; GAI, p. 235. 141. GAI, p. 286; TSU 122-129, 149, 171, 187-200, 245-249, 272. On Bakufu efforts to suppress akutô, see TSU320,460, 533, 591. 142. TSU63, 85; GAI, p. 287. 143. TSU 558, 594, 596. For shugo investigation of criminal matters brought to light during civil cases, see SAI 2/Chinzei/13, p. 123. When the civil court considered the case to be a clear one, it could directly adjudge criminal aspects, too (SAI 2/Chinzei/3l, 36). On the functions of the Chinzei tandai and how competences were divided between that office and the shugo, see SOS, p. 257 ff. 144. In cases where the court told the parties to abide by an earlier decision— such as SAI 1/20, 106, 301—it is not clear whether one of the parties pleaded for this solution, or the court said so ex officio. Obviously unjustified claims were thrown out as ranso. See, e.g., SAI 1/118, 124, 167, 279; SAI 2/Chinzei/109, 218. But these cases were, as far as I have been able to find out, not efforts to relitigate, but simply "vexatious suits." See GS 31, 36; FUD, pp. 231, 349, 355359, 362-364; SOS, p. 187. 145. TSU 18; GAI, pp. 246-247. 146. The question of relitigation vs. appeal is a dubious one (FUD, p. 238, note 387). Relitigation while the appeal time limit of three years had not yet expired was not possible, but after that time there was only fueki-hô or taninwayo to prevent it. See Ishii Shirò, "Zenkindai Nihon no hô to kokusei ni kan suru oboegaki" (A memo on the law and the state system of premodern Japan), Hôgaku Kyôkai zasshi, vol. 88, fascicles 5-6 (1971): 585-623, esp. p. 596—1 owe this reference to Dr. James Kanda's Harvard lectures in 1975/76. 147. FUD, p. 42; GAI, pp. 302-305. 148. TSU 321-322, 325, 446, 619; FUD, pp. 239-241; SOS, pp. 178-184; text in MIR, pp. 364. 149. FUD, pp. 247-253, 264, 268-277, 334; GAI, p. 324; TSU 147, 434, 444, 451, 461, 530, 620. Examples in S / l / a r e plentiful; e.g., SAI 1/58, 125, 183, 197, 205-206, 253, 275, 309-310, 320-321; SAI2/17, 35-37, 53, 68, 74, 77; Chinzei/ 98, 108, 159, 171-172, 196, 198-200, 209-210. There were more wayo cases during the latter than during the former half of the Bakufu (SOS, pp. 84-86). Conversely, litigation concerning jitO misdemeanor was more common in the first than in the latter half. The scope of a wayo could be tried by Bakufu courts (SAI 2/54). On watakushi-wayo (nonenforceable private agreements), see MIR, p. 373; FUD, pp. 270, 334-335; SOS, pp. 268-270. 150. SAI 1/132; FUD, pp. 275, 355. 151. FUD, p. 257. 152. Even cases where obviously applicable statutes are quoted by the court are

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rare. See, for one, SA12/6 (quoting, in a general manner, the recently promulgated GS). 153. SOS, pp. 136, 163. 154. SOS, p. 51. The number of court bugyd was only about 30. 155. When the shogun visited Kyoto, the Bakufu courts went into recess (FUD, p. 204), although he did not sit in the HydjOshu (FUD, p. 292). After the middle of the fifteenth century, Muromachi procedure was different: the shogun often participated in Bakufu supreme court decisions—and the number of arbitrary decisions grew (FUD, pp. 626,632). 156. The court often argued from precedents (senrei). See, e.g., SAI1/30, 51, 88, 164, 276, 293; SAI 2/3-6; SAI 2/Chinzei/13, 90, 91, 152. But it did not tell exactly what that senrei was about, and whether a party had pointed to it or not. I have found but one example quoting an individual precedent (SAI 1/106). 157. Like early common-law courts, the Bakufu courts combined considerable latitude in action with extreme verbal formalism in its decisions; see SAI 2, p. 318. For the development of the rules of evidence, see FUD, pp. 324-333, 341344. 158. TSU253, 549; SAIl/ll; FUD, p. 318; GAI, pp. 209, 213. 159. TSU 182, 221, 258, 288-289, 293, 323, 389, 398-402, 424-427, 531, 579; £ 4 / 2 / 9 ; SAI 2/Chinzei/13. 160. Text in CHSS \ ,Kamakura bakufu ho, pp. 29-31; English translation by Carl Steenstrup in Monumenta Nipponica 35 (1980): 434-435. For dOri as a philosophical concept, see Kawai Masaharu, Chusei bukeshakai no kenkyu (Studies of the warrior society of the medieval age) (Tokyo: Yoshikawa Kobunkan, 1973), pp. 87-95. 161. Kawai Masaharu, Chusei, pp. 151-154. 162. Kakehi Yasuhiko, Chusei buke kakun no kenkyu (Studies of the clan regulations of the medieval warriors) (Tokyo: Kazama Shobo, 1967), "Shiryo-hen," p. 83; English translation by Carl Steenstrup in Monumenta Nipponica 32 (1977): 11. 163. The many Buddhist-inspired statutes (TSU 173-174, 251, 271, 326-327, 340, 344, 347-348, 432, 481, 624-627) ordering maigre days or prohibiting hunting, slaughtering, or caging animals were occasional bouts of piety in order to placate Buddhas and gods in case of pestilence or famine, rather than consistent efforts to inculcate Buddist morality. The Bakufu tolerated diversity of beliefs, except when sects turned subversive or militant. See TSU 90, 386; SAI 1/149. If the Bakufu had an ideology, it was a secular one of conservative austerity; for sumptuary laws, see TSU356-367, 377, 563-565, 621-623.

A S U R V E Y OF S O M E T O O L S F O R R E S E A R C H I N T O KAMAKURA

LAW

A handy entry for Western readers is Jeffrey P. Mass, The Kamakura Bakufu: A Study in Documents (Stanford: Stanford University Press, 1976). Other Western works in the field (notably by F. Joüon des Longrais, Kan'ichi Asakawa, John W. Hall, Johannes Barth, Minoru Shinoda, Kyotsu Hon, Jeffrey P. Mass, Cornelius Kiley, and James Kanda) are listed in a review of The Kamakura Bakufu in Monumenta Nipponica 32 (1977): 392-395. Further, there are Jeffrey P. Mass, "The Origins of Kamakura Justice," in the Journal of Japanese Studies

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3 (1977): 299-322, and a review of Mass' Kamakura Bakufu by James Kanda in the Harvard Journal of Asiatic Studies 37 (1977): 437-443. Bakufu statute law, the Go-seibai shikimoku fip^flt @ or J5ei $ /jc Code of 1232, and its supplementary statutes or tsuika-ho can be found in Sato Shin'ichi YiH-jit —, Ikeuchi Yoshisuke ¡ft iff, and Momose Kesao Chusei hdsei shiryd vol. 1: Kamakura bakufu ho i f c ^ S $ > £ ; vol. 2: Muromachi bakufu ho >£; vol. 3, part 1: Buke kaho % ^ >£ (Tokyo: Iwanami, 1955). The law manual Sata mirensho is found in vol. 2, pp. 355376. A selection of Kamakura Bakufu statutes, including the Jdei Code and many important tsuika-ho, have been annotated and translated into modern Japanese, in the Chusei seiji shakai shiso ty tt ® iS, part 1, edited by Ishii Susumu # j® and others, (vol. 21 in the Nihon shiso taikei 0 ^ S *S ~k (Tokyo: Iwanami, 1972). The extant judicial decisions of the Kamakura Bakufu have been assembled by Seno Sei'ichiro M ?f — gp in the Kamakura bakufu saikyojo shu i u ^ ^ H n 2 vols. (Tokyo: Yoshikawa Kdbunkan, 1969). The Bakufu's role as arbitrator between temples and other civil proprietors (honke/ryoke) on the one hand and jitd/gokenin on the other has been analyzed by Seno Sei'ichiro in "Kamakura bakufu saikyojo no bunseki" M i t ^ iH/f, Shigaku zasshi £ ift I I 77 (1968): 46-73. The standard guides to legal procedure in medieval Japan are still Sato Shin'ichi it.—, Kamakura bakufu soshoseido no kenkyu ijt ^ ^ /ft a/r #ij «-Wf , Unebi shigaku sosho if g # (Tokyo: Meguro Shoten, 1946), and Ishii Ryosuke y& Chusei buke fudosan soshoho no kenkyu ^A'P-^ftl Alffii; >£ ^ W (Tokyo: Kobundo, 1938). Ishii Shiro # gp, in the article "Zenkindai Nihon no ho to kokusei ni kan suru oboegaki" m f i i f t 0 $-i Z S&] i: M "t & (Hogaku kyokai zasshi i? 88, fascicle 5-6 [1971]: 585-623, esp. p. 596), pointed out the "arbitration court" element in Bakufu civil procedure: not only was it the parties' task and risk to supply the court with information on the norms applicable to the case, but also they might even litigate the same matter twice. The dating of the Sata mirensho by means of internal criteria, in particular tsuika-ho quoted in it, was undertaken by Ishii Ryosuke in the article "Chusei no sosho-shiryo ni-shu ni tsuite" £ ' - i t 1:it > T, in Hogaku kyokai zasshi 49, fasc. 8 (1931). The class structure of Japanese medieval society is analyzed by Nagahara Keiji fa f%t — in Nihon no chusei shakai 0 £ I - it" 11 i -f&iJr r> — in Chusei no ho to kokka # i £ •Wf , published by the Höseishi Gakkai >£&•] ¿? under the auspices of the Faculty of Law of Tokyo University. For explanations of terms, tables of officials, and leading families, and so forth, the Chüseishi handobukku + ifr i.'x > h 7 y 7, edited by Nagahara Keiji ist — and others (Tokyo: Kintö Shuppansha, 1973) is valuable. There is a short but lucid exposition of research trends in the "Chüsei-hö" + chapter by Professor Kasamatsu Hiroshi JL, on pp. 37-39. As a general introduction to medieval Japanese law, Ishii Ryösuke, Nihon höseishi gaisetsu 3 £ 3rd rev. ed. (Tokyo: Söbunsha, 1976), pp. 201-363, still holds its place for comprehensiveness and clarity. On virtually every topic treated briefly in the book, details can be found in Miura Hiroyuki -5--;$ Jä]fr, Höseishi no kenkyü £ ö f ^ (1919-1925; reprint ed., 2 vols., Iwanami, 1973). The twilight zone so important in medieval times between executory rules (law) and regularly observed, but nonexecutory, rules of conduct (morality) is explored by Kakehi Yasuhiko % ^ / t in Chüsei büke kakun no kenkyü % % D1! w iJf-^; (Tokyo: Kazama Shobö, 1967). Topics of Bakufu institutional history are regularly treated in the Seiji keizaishi gaku iiCiäif £ i f , published by the Seiji Keizai-shi Gakkai Since the foregoing paper was written and revised for publication, the knowledge of Kamakura law has advanced rapidly. It may still do service as a general outline on litigation in Kamakura, but the interested reader should now consult the following works. Kasamatsu Hiroshi S £ JL, Nihon chüsei-hö shiron 0 ^ ^ - t i H i ii life (Historical essays on Japan's medieval law) (Tokyo: Tokyo Daigaku Shuppankai, 1979). Jeffrey P. Mass, The Development of Kamakura Rule, 1180-1250: A History with Documents (Stanford: Stanford University Press, 1979). Review by Ishii Susumu in The Journal of Japanese Studies 6 (1980): 372-379, and by me in Monumenta Nipponica 35 (1980): 337-346. Jeffrey P. Mass, ed., Court and Bakufu in Japan: Essays in Kamakura History (New Haven and London: Yale University Press, 1982). Review in Monumenta Nipponica 37, no. 4 (1982). Jeffrey P. Mass, "Translation and Pre-1600 History," Journal of Japanese Studies 6 (1980): 61-88. Közö Yamamura, "Tara in Transition: A Study of a Kamakura Shöen," Journal of Japanese Studies 1 (1981): 349-391. Finally it should not be forgotten that studies of legal systems based on rules and practices of litigation are like studies of human nature based on a psychiatrist's case-book; only what went wrong comes into focus. Read, therefore, as an antidote to such a skewed view, James Kanda, "Methods of Land Transfer in Medieval Japan," Monumenta Nipponica 33 (1978): 379-405, on all the peaceful, orderly, registered transactions which were carried out while the agents of strife capered in the lime-light of history.

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BIBLIOGRAPHY

Haga Norihiko ;1;J T'i.t/f. "Chusei honjo-hö ni okeru kendan no ichi-kösatsu" 4 # Si} w — # ^ (An enquiry into the criminal proceedings of the manorial law of the medieval age). In Chüsei no hö to kokka "}»-fr >i X. Hl ^ (Law and the state in the medieval age), edited by Satö Shin'ichi i i & i t . — and Ishimoda Shö JQ-^WSf,, pp. 329-410. Tokyo: Tokyo Daigaku Shuppankai, 1971. . "Ryöshu shihai to hö" t Ü R ? j i (The rule of local lords and its law). In Chusei "^-fr 1. Vol. 6, pp. 169-210, of Iwanami köza Nihon rekishi S& 'Ä / i El ife (The Iwanami symposium on Japanese history). 23 vols. Tokyo: Iwanami, 1975. Hall, John Whitney. Government and Local Power in Japan, 500 to 1700. Princeton, New Jersey: Princeton University Press, 1966. Ishii Ryösuke >£ # g. Chüsei büke fudösan soshöhö no kenkyü + -ffi- Ä % 7 % /t iff tfc / i iff (Studies in the law of real property litigation among the medieval warriors). Tokyo: Köbundö, 1938. . "Chüsei no soshö-shiryö ni-shu ni tsuite" ^ Vt n iff ii: t . i'4 — i t I " f t ' T (On two historical sources about litigation in the medieval age). Högaku kyökaizasshi>if 49, fasc. 8 (1931). . Nihon höseishi gaisetsu Hl ^ >i £ Ut (Outlines of the history of Japanese law). 3rd rev. ed. Tokyo: Söbunsha, 1976. Ishii Shiro •£» # gp. "Zenkindai Nihon no ho to kokusei ni kan suru oboegaki" ijiiiiftB X g#i]u M t h (A memo on the law and the state system of premodern Japan). Högaku kyökai zasshi >i ij- # i t i t 88, fasc. 5-6 (1971): 585-623. Ishii Susumu # 3ft and others, editors. Chüsei seiji shakai shisö frBciuiii part 1. Vol. 21 of Nihon shisö taikei a ^ & (Conspectus of Japanese thought). Tokyo: Iwanami, 1972. Joüon des Longrais, F. Age de Kamakura: Sources d'archives. Tokyo and Paris: Maison Franco-Japonaise, 1950. Kakehi Yasuhiko Chüsei büke kakun no kenkyü fr Ä % |D] bft it~ (Studies of the clan regulations of the medieval warriors). Tokyo: Kazama Shobö, 1967. Kasamatsu Hiroshi £ 3L. "Chusei-ho" -fr>£ (Medieval law). In Chüseishi handobukku t f - t " ' / 1- 7 •/ 7 (Manual on medieval history), edited by Nagahara Keiji — and others. Tokyo: Kintö Shuppansha, 1973. Kawai Masaharu Chüsei bukeshakai no kenkyü 4" fr Ä '4? i± (Studies of the warrior society of the medieval age). Tokyo: Yoshikawa Kobunkan, 1973. Kurokawa Takaaki M. "1 ,§ja/l and Kitazume Masao i t Ik A f i £. Kamakura seiken I t it jE f t (Political power in Kamakura). Vol. 4 of Nihon rekishi 0 £ (History of Japan). Tokyo: Yuseidö, 1976. Mass, Jeffrey P. The Kamakura Bakufu: A Study in Documents. Stanford: Stanford University Press, 1976. . "The Origins of Kamakura Justice." Journal of Japanese Studies 3 (1977): 299-322. . Warrior Government in Early Medieval Japan: A Study of the Kamakura Bakufu, Shugo, and Jitö. New Haven: Yale University Press, 1976.

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Miura Hiroyuki -S-iSU] ff. Hdseishi no kenkyu st (Studies on the history of law). 2 vols. 1919-1925. Reprint. Tokyo: Iwanami, 1973. Nagahara Keiji su. Nihon no chusei shakai 0 (The society of medieval Japan). Tokyo: Iwanami, 1972. and others, eds. Chuseishi handobukku # £ " > K 7 ••/ 9 (Manual on medieval history). Tokyo: Kinto Shuppansha, 1973. Nihon rekishi daijiten 0 i; 22 vols. Tokyo: Kawade Shobo Shinsha, 1968-1969. Sato Shin'ichi it. —, Ikeuchi Yoshitsuke ft W> and Momose Kesao Hi M^it. Chusei hosei shiryo shu + # vi St S (Collection of sources on the history of the medieval legal system). Vol. 1, Kamakura bakufu ho fe >i (The law of the Kamakura Bakufu); vol. 2, Muromachi bakufu ho 's'&J M: /M >£ (The law of the Muromachi Bakufu); vol. 3, part 1, Buke kaho % 1$. >i (The house-laws of the warriors). Tokyo: Iwanami, 1955. Seno Sei'ichiro Mffffi—Bp. Kamakura bakufu saikyojo shu S&fe % fa HiVf- fcHk (Collection of judgments by the Kamakura Bakufu). 2 vols. Tokyo: Yoshikawa Kobunkan, 1969. . "Kamakura bakufu saikyojo no bunseki" (An analysis of the judgments of the Kamakura Bakufu). Shigaku zasshi £ # itifc 77 (1968): 46-73.

From Statute to Precedent: An Introduction to Sung Law and Its Transformation BRIAN E . MCKNIGHT

INTRODUCTION

The origin of law is one of the central questions of jurisprudence. What are the roots of law, in fact and in theory? Who makes it, and out of what materials? Most studies of this topic take the law as given and search behind it, either by reasoning or by studying the actual roots of some substantive rules, for the foundation on which law rests. There is another approach which may throw a different sort of light on the general problem. We can look at the forms of the laws, ignoring for the moment their particular content, and study the patterns of and the reasons for an evolution of legal forms. The question then is not how is law created, but how is law preserved, and when there is evolution of its forms, why does such evolution occur? The study of the compilation of collections of laws and of the changes in the structure both of the laws and of the collections illuminates the ideas of the compilers about the proper divisions of the laws, the actual processes by which some rules are retained and others discarded, and some of the factors precipitating legal change. Such a study is most revealing when it centers on a period such as the Sung (960-1279), during which laws radically changed their forms. The Sung period has been characterized as an era during which the legal system passed first from a dependence on Statutes to a dependence on Edicts, and then to a dependence on Precedents. 1 There is a sense in which this description holds true but it remains misleading until a detailed picture of the change is presented, so that we can see not only the ways in which it is true, but also the causes that led to the change, the

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implications for Sung legal and political practice, and the parts of the legal system which remained little affected. It is also said that the Sung inherited its system of laws from the T'ang, by way of the Five Dynasties. Again there is a sense in which this is true, but in this case it is perhaps more true in name than in practice. During the T'ang there were four sorts of laws—lii or Statutes, which were penal in the sense that each rule contained a statement of the penalty attached to its infraction; ling or Ordinances, which were administrative rules and did not state the penalties for infraction; ko, which was a term applied to emending edicts and collections of such edicts; and shih (which Denis Twitchett translates as ordinances in T'ang contexts), low level or local administrative rules.2 The Sung inherited these terms, but the Sung rules known under the last two, ko and shih, were totally different in nature from their T'ang predecessors. Furthermore the practical significance of the Statutes changed somewhat, and it even seems possible that the character of the ling was slightly different. Since most of those who have written on Sung law were grounded first in T'ang law, a good deal of confusion has come to surround the different kinds of laws that were effective in Sung times. We can begin to clear the air somewhat by saying that during the Sung there were, analytically speaking, four common sorts of governmentally enforced rules. One type specified a penalty for a given misbehavior. "If you do A you will suffer B" or "A is to be done; if you do not do it you will suffer B." The T'ang (and Sung) Statutes or lii are of this class. During the Sung these Statutes were preserved in the Sung Penal Conspectus (Sung hsing-t'ung), a work completed in 963. The Statutes found in this work (as opposed to some of the other materials found there) are basically identical with those of the T'ang. 3 Secondly there were rules that were prescriptive rather than proscriptive, setting down administrative regulations without indicating the penalties for infringing them. This group included T'ang and Sung ling (ordinances). Sung ling appear to have differed from their T'ang counterparts in one significant way. Whereas during the T'ang the word ling was used to describe only general, broad administrative rules, during the Sung it would appear that any rule which was not penal, and did not fall into the two categories of ko and shih, might be considered a ling.* A third group of rules, not represented as a separate category in T'ang laws, set down rules for measurable items. These rules were in Sung times called ko, the same word used in the T'ang for emending edicts. In the Sung, ko only included rules such as those which established quotas for personnel or clerks, determined amounts of goods or money as in the systems of rewards or commutations, fixed standards such as lengths of

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mourning leaves for various relatives, or determined rates such as pay scales for workers. In brief, Sung ko or Regulations always had something to do with measurements of quantity or level.5 The fourth kind of rule, also not represented by a separate law category in the T'ang, specified the "what," often of physical objects. Many of the extant (Southern Sung) examples prescribe the formats for offical communications. Members of another large group give the specifications for objects with ritual significance, such as palace buildings and official or royal carriages. Another much less numerous group seems to be very close in nature to the Regulations because it specifies such things as numbers of school students and their stipends. A few examples specify weights for tax measurements and amounts of tax remission. Only rarely do rules in this category prescribe behavior, and then always in the context of rituals. In the Sung these rules were called shih, the same word used in the T'ang for low level administrative rules. Given the character of shih during the Sung the term should perhaps be translated Specifications. 6 O N T H E T Y P E S OF D O C U M E N T S

Understanding this analytical scheme is simple. Understanding Sung documents is more complicated, because Sung authors writing about laws often use terms which indicate the methods by which the rules were established rather than their content. Thus the Sung did have lii or Statutes, which were penal, but penal rules might also be embodied in ch'ih (edicts), li (precedents), or shen-ming (clarified instructions). To compound the problem, these three latter terms, which indicated method of enactment, not character, might also refer to rules which were by nature Ordinances (ling), Regulations (ko), or Specifications (shih). Edicts Each of these different ways of establishing rules needs separate comment, but an understanding of Edicts, or ch'ih, is critical, since ch'ih played a central role in traditional imperial rule. Analytically we might say that, in traditional China, all officially enacted law, as opposed to socially enforced custom, derived its force from the emperor, even if it had not been handed down directly by him. In this sense he was sovereign. Laws were usually created when he signified his approval of a suggestion submitted to him. This elementary characteristic of the Chinese political system had profound effects on the working of Chinese law. All of the four sorts of laws described above had originally (at least in theory) been created in this manner. Since the sovereign could hardly deny

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himself the power to amend his own laws without ceasing to be truly sovereign, any such law was subject to his amendment. While in practice emperors might impose limitations on their changing of laws, in theory such limitations were vague and hinged on the force of belief and custom. Thus, in any legal situation, the applicable law was embodied in the latest relevant expression of the imperial will. Some scholars have written as if it was a peculiar trait of the Sung legal system that Statutes (Hi) were displaced by Edicts (ch'ih) but in fact such a situation is implicit in the character of the imperial system, and must have been equally true at other times. Scholars have also drawn from this argument the conclusion that, with the rise of a system dependent on Edicts, the Sung Statutes in the Sung Penal Conspectus became dead letters,7 but it would be more accurate to say that they were letters buried alive. The problem was not that they lacked legal force but that the great proliferation of amending legislation left fewer and fewer cases to which they could be directly applied. The same was true of the other categories of laws, where a governing rule might also be amended by an edict. The displacement of received rules by Edicts culminated during the reign of Shen-tsung in a reform which both symbolized the lessened place of Statutes in legal practice and heightened the confusion of terminology. Shen-tsung ordered that the word ch'ih be used in edited collections of laws as the name for those laws with penalties attached, that is, those laws with the characteristics of Statutes (lit).* The confusion arose because ch'ih in its old general meaning of edict continued to be used in referring to individual decrees which might in terms of content be other sorts of laws.® Shen-tsung's order concerning terminology, and the change in the format of compilations of laws which accompanied it, was an attempt to deal with the problem presented by the growing body of Sung legislation, a problem which contributed directly to the next, unsought, transformation of the Sung law system, the increasing use of Precedents (li) in place of other legal forms. Precedents Sung usage of the word li, translated here as Precedent, presents the historian with a number of problems. In Sung legal materials this word is used in a variety of senses, all of which seem to be connected with the idea of precedent, but which vary in their origins, degree of technical content, and character.10 At times it seems simply to mean the pattern of practices in use in a given organization or applied in a given incident. Such vague uses tell little about how such li were created, about the degree to which they were legally enforceable, or about any sanctions attached to them. More commonly the term seems to be used to indicate

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usages or decisions which had legal force. Such li might be created by a particular imperial act as when an emperor gave gifts to a high official under a particular set of circumstances and the act "became a //."" Even more suggestively there are examples of imperial decisions which close with the phrase, "this is not hereafter to be cited as a li,"12 leaving the reader with the distinct impression that in practice any imperial decision might be cited as a Precedent (li) unless there was a specific order that it could not be so used. Indeed it seems logical that, since the emperor was sovereign, any expression of his will or of his acquiescence might properly be considered a precedent for future actions. It is probably in this light that we should view the examples of orders that a particular problem be dealt with "according to the li of group or bureau X," 13 since these li existed either as a result of previous imperial action or with presumptive tacit imperial consent. Precedents had been used in pre-Sung times, and the systematic use of groups of Precedents began early in the Northern Sung. During the first century of the Sung they were used in the civil service system, general administration, ritual systems (including reception of foreign envoys), postal administration, and criminal law (but apparently not in fiscal or economic matters).14 The absence during the first century of the Sung of collections of Precedents dealing with economic or fiscal affairs is striking, since we know of one such collection under Ying-tsung (r. 10641068), and under Shen-tsung (r. 1068-1086) one collection was issued and three more were commissioned.15 At no time, however, were any large number of collections of Precedents produced. The largest number appeared under Che-tsung (r. 10861100), during whose reign six collections were issued. Both Shen-tsung and Jen-tsung (r. 1023-1064) promulgated three compilations, but most of the other emperors issued only one or two, and T'ai-tsung apparently issued none." Of the types of Precedents used, those applied in criminal matters were perhaps closest in character to precedents as used in the Anglo-American legal tradition. During the Sung, decisions of appellate units (more exactly, review units) at the capital began to be cited as legal grounds for subsequent decisions in the judicial hierarchy. Such Precedents were drawn not only from previous collections of Precedents, but also from the imperial orders associated with draft judgments (tuan-ts'ao), and from remanded misjudgments of local authorities. Viewed abstractly this use of Precedents in criminal cases is not surprising. In theory the cases reviewed at the capital were for the most part those which required the personal attention of the emperor, if only as an actor approving the decisions of his subordinates. Since the sovereign

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approved a particular solution of a case it is to be expected that later men might cite that decision in support of a ruling in a subsequent case. It should be noted in this regard that where decisions were handed down in the emperor's name that contravened the ordinary system by calling for penalties either heavier or lighter than the usual ones, such rulings frequently included a phrase indicating that they were not thereafter to be "cited as It." Such aberrant decisions were viewed as cases where circumstances so altered the proprieties that the usual penalties were not truly apt." The increasing use of Precedents is reflected less in the increased frequency of compilation than in the increased size of the body of Precedents and by explicit complaints about their being used too often. In 1099, when a collection was made of Precedents to be used in criminal matters, the compilers began with more than ten thousand examples. By eliminating those where there was already a clear law (and so no need for a Precedent) and those that were temporary, overly specific to a given situation, or already overruled by the Ministry of Justice (Hsing-pu) the compilers were able to emerge with a set of 141 items designed to guide judges in the handling of difficult cases." And in 1070 the office of the Secretariat (Chung-shu sheng) charged with the compilation of (noncriminal) Precedents was said to have assembled more than one thousand chapters, probably arrange chronologically. These Precedents apparently consisted of all the imperial decisions (chih) sent to the Department of Ministries (Shang-shu sheng).19 Officials in the late Northern Sung also began to complain that "Precedents are being used to subvert the law (fa)," a criticism that became even more common under the Southern Sung.20 This complaint was part of a more general shift in Sung legal practice which will be examined below. In the technical sense Precedents in Sung times meant imperial decisions on specific issues (whether made by the emperor or in his name). Because Precedents retained their idiosyncratic character they could only be applied analogically to other cases. For this reason they were supposed to be avoided if there was a pertinent rule in the integrated generalized body of laws (fa).21 (This idiosyncratic character was demonstrated when Precedents were rewritten in general form as ch'ih, ling, ko, or shih; those items that "really would not fit were to be recorded as //.")22 Clarified Instructions The last group of laws which need to be discussed here were those embodied in what were called shen-ming, a term translated here as "clari-

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fied instructions." These were individual edicts (ch'ih) or memorialized reports (cha-tzu) sent down by the Bureau of Military Affairs (Shu-mi yuan) or the Department of Ministries. In legal compilations they appear in abbreviated form, but preserve the outline of the decree format, beginning with the date of promulgation. Like the other forms discussed above they may or may not be penal. The term itself appears not to have been a technical term in the early Sung. At that time it indicated central authority's promulgation of a clarification or explanation of a previous instruction. The earliest technical use found so far comes from the reign of Shen-tsung, where a collection of edicts included, among other subdivisions, a group of "shen-ming edicts" (shen-ming ch'ih).23 Most of the extant examples come from the Southern Sung compilations Classified Legal Clauses Effective in the Ch'ing-yuan Period (Ch'ing-yuan t'iao-fa shih-lei) and the Legal Clauses of the Ministry of Personnel (Li-pu t'iaofa). It is not at all clear why they were left in the form of decrees, and not rewritten as general laws of other sorts.24 O N AMENDMENT AND

CONTINUITY

To understand the workings of the traditional Chinese political and legal system we must bear in mind this facility of amendment—any expression of the imperial will could alter fundamental law. It is also important to remember that the converse held true. Unless abrogated by an expression of the imperial will, laws did not lapse with the passing of dynasties. The underlying principle was that laws remained valid until displaced. Thus even after the legal compilations of the Sung founder's time were completed and in force, laws from earlier dynasties were still used if they had not been displaced by Sung enactments and if they were not among the laws discarded during the process of Sung compilationThe state could choose to give such rules from earlier dynasties greater visibility by explicitly adopting them." In other instances there is no evidence that the rules were specifically adopted, but we know that they were cited.27 For example, in 1080 the office in charge of compiling Edicts remarked that "Among the currently revised Edicts, Ordinances, Regulations, and Specifications the listing of the T'ang shih is extremely complicated . . . ." 2i Another example occurred in the early eleventh century with the citing of a T'ang Edict in a legal argument about appropriate sentencing.29 This trait of Sung law is important since it reflects one of the roots of legal continuity. However, the existence of this policy of continuity in no way indicates what percentage of laws continued in use. In an era such as the Sung, where a great many Edicts were issued, the

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chances of a pre-Sung rule being cited were probably rather slight, particularly in those areas of administration of special concern to the Sung authorities such as fiscal and economic policy. C H A N G E S I N T H E S U N G S Y S T E M OF L A W S

By examining the growth of Sung legislation one not only can throw some light on this problem of legal continuity, but also can illuminate a motive force behind changes in the Sung system of law. Early Sung At the beginning of the Sung, government authorities made use of eight collections of laws, four from the T'ang period, two from the Later T'ang (923-936) and two from the Later Chou (951-960). Four (possibly five) of these works were in the form of collections of Edicts (pien-ch 'ih), and three were in the form of Penal Conspectuses (hsing-t'ung), a pattern of arrangement that closely resembled that of the T'ang Code (T'ang lit shu-i) except that some later Edicts were appended to the Code sections.30 It is not known how conflicts of laws were handled, but such problems may have been one of the reasons for agitation, during the opening years of the dynasty, for some new legal compilation. In 962 a graduate of the examinations in law had complained about the problems created by the use of these Penal Conspectuses and asked for a new work. The emperor thereupon ordered a group of officials to undertake a new compilation. Within months the commission submitted its work, the Sung Penal Conspectus (Sung hsing-t'ung). Such speed was possible because the group had merely to make changes in the Penal Conspectus of the Hsien-te Period (Hsien-te hsing-t'ung), which had been compiled under the Later Chou only a few years before. The Sung Penal Conspectus contains the Statutes (lii) of the Sung, but even at the time this work was promulgated its compilers felt compelled to issue four chapters of collected Edicts (pien-ch'ih). This little work was the harbinger of the future development of the Sung system of laws.31 The Sung Penal Conspectus reproduced the T'ang Code in all its essentials, but the society and economy of the early Sung differed radically from that of the era during which the T'ang Code had been created. To bring the laws into better harmony with current conditions, Sung rulers drew on the emending legislation of their predecessors, and in addition produced a flood of their own Edicts. Such Edicts were preserved in chronological order not only by the offices to which they were sent but also by a special office in the capital. It seems implicit in this system that law-finding consisted of going through these Edicts from the most recent

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backwards, with recourse to the Penal Conspectus and the inherited bodies of law only if no pertinent later Edict could be located. There are indications that during most of the Northern Sung, Edicts applicable by many different offices (so-called "generally applicable Edicts") accumulated at the rate of about six hundred a year,32 and in one office, the Bureau of Administrative Personnel (Shen-kuan yuan), during the 1050s and early 1060s Edicts solely applicable in that office are said to have accumulated at a rate of about one hundred per year." With the passage of time the difficulties of finding the proper rule obviously increased. This problem was alleviated if not solved by the periodic prunings and recompilations of Edicts which began in the 960s and continued throughout the dynasty. Prior to the reign of Shen-tsung (r. 1068-1086) recompilation of generally applicable Edicts occurred approximately every sixteen years, under Shen-tsung and Che-tsung (r. 1086-1100) every six years, and under Hui-tsung (r. 1101-1126) every thirteen years.34 The basic character of such a recompilation during the early Sung is recorded in detail for the work called the Compiled Edicts of the Hsienp'ing Period (Hsien-p'ingpien-ch'ih). The initial suggestion for the compilation probably came from a Reviewing Policy Advisor (chi-shih chung) (a moderately high-level office) named Ch'ai Ch'eng-wu. He pointed out that in the seven years since the previous compilation there had been a great number of new Edicts. He mentions the figure 18,550 items. This probably refers solely to Edicts issued since the previous compilation, but it is possible that it includes the other bodies of law which were to be consulted in the new edition, for example the Compiled Edicts of the Ch'un-hua Period [990-995] Effective for the Ministry of Justice, the High Court of Justice, the Hundred Offices of the Capital, and the Offices of the Fiscal Intendants of the Various Circuits. In any event, judging from later examples, this old set of Compiled Edicts would have provided only a fraction of the total of nearly twenty thousand items. The exact cutoff date for the Edicts included in the Ch'un-hua compilation is not clear, but if this total is for the later Edicts alone, new Edicts must have been accumulating during this era at the rate of about three thousand a year. Seven men were to be charged with the first stage of the editing process. Another group of seven, including Ch'ai Ch'eng-wu, handled the second stage of the process. In their work these secondary editors followed certain principles. When newly issued Edicts called for penalties heavier than those for the corresponding item in the Sung Penal Conspectus, the later Edicts were deleted. Administrative rulings that in terms of content were classifiable as ling and dealt with financial matters were sent on to the Finance Commission (San-ssu) for separate compila-

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tion. Those items that were relevant only to single offices or jurisdictional units were routed back to those offices or units. This left 856 general Edicts. All Edicts relevant to a single problem were then grouped together. (It may be presumed from later practice that within such a grouping they were placed in chronological order.) Where one Edict dealt with several matters it was divided into parts and each was placed with like materials. Items where the punishment seemed disproportionate to the circumstances were deleted. Clauses were rewritten where the intent was clear but the language obscure. The editors ultimately were left with 286 legal items (t'iao) of general applicability, which were divided into sections to correspond to the sections of the Penal Conspectus. Sixteen items touching matters of ceremonial were compiled separately into a one-chapter work which was appended to the Ordinances on Ritual Systems (I-chih ling). Those items dealing with amnesties were also compiled separately, and appended to the Ch'un-hua Era Amnesty Documents (Ch 'un-hua she-shu).35 The documents concerned with this particular compilation do not detail the exact steps involved in making a compilation, but these become clearer from materials bearing on later compilations. Most of the information comes from the reign of Shen-tsung and his successors. Unfortunately, though predictably, the bitter partisan poltics of Shen-tsung's reign influenced the compilation process. There were a variety of changes in methods of procedure and of staffing during the reform, antireform, and postreform administrations, but some general principles appear clear. The bulk of the initial work fell on the shoulders of editing officials (shan-ting kuan) who apparently arranged the Edicts in classes and in chronological order. They also carried out the initial process of deleting items. It is not clear whether they did any rewriting or not. They met together to go over their work, and if they disagreed they wrote out separate opinions for submission to the scrutinizing editors (hsiang-ting kuan). These men, fewer in number and of higher rank, conducted a second editing and perhaps were responsible for the rewriting of passages which they thought obscure. If these latter editors also failed to agree on an editing problem they sent their written opinions to the Secretariat (Chung-shu sheng) for decision. (This was the system after 1071, and it is probable that a similar procedure for settling disputes existed before that date.)36 R E F O R M S A N D T H E P R O C E S S OF C O M P I L A T I O N

In the reign of Shen-tsung the growing burden of laws itself provoked some changes. Suggestions for changes generally came seriatim not only

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12 1

from officials high and low, but also from commoners.37 An order in 1076, however, recommended that changes be considered periodically rather than piecemeal.38 Another order sets quotas of material to be processed by those concerned.3* Still another order ties the "terms" of office of editors to quantity of output and not just length of service.40 Once finished, a compilation would often be sent to the relevant enforcing units for perusal before final approval, though this was not true of generally applicable compilations.41 Despite official awareness of problems in the compilation process, some difficulties remained because delay in the work was to the advantage of those doing the compiling.42 More importantly personnel were changed too frequently and the new men were unwilling to accept the work of their predecessors.43 The refinements in the compilation process and the new forms of compilation were prompted in part by the rapid growth of legislation, particularly during the reign of Shen-tsung. Eleven legal compilations are known from the reign of T'ai-tsu, the Sung founder, including the Sung Penal Conspectus in thirty chapters, a set of collected Edicts in four chapters, four collections of Regulations totaling six chapters, and five other collections all of which, judging from their titles, were probably rather short. It is unlikely that the total of all these works exceeded one hundred chapters. Since T'ai-tsu reigned for sixteen years, one collection appeared on the average every sixteen months.44 His brother and successor, T'ai-tsung, held power for twenty-two years, during which five legal compilations were issued, including two sets of generally applicable Edicts and three more limited collections, so that a collection appeared about every four and a half years.45 Under Chen-tsung (r. 998-1022) twenty-four collections appeared during a twenty-five year reign.46 Jentsung reigned forty-one years (1023-1063), during which twenty-nine collections were issued, one appearing on average every year and a half,47 and three collections are known for the four-year reign of Ying-tsung (r. 1064-1067).48 When Shen-tsung (r. 1068-1086) came to the throne the situation changed dramatically. During his eighteen years on the throne eightythree collections were issued for certain, and there are a great many more that probably appeared during these years. Even ignoring those works that probably but not certainly were issued in this period, this still means that a collection appeared every two and a half months on average. One striking peculiarity of Shen-tsung's reign was the frequent issuing of collections of Specifications (fourteen in all). Only three other such compilations are known for the other Sung emperors.4' Shen-tsung's reign is also noteworthy for the increase in the length of some of the collections issued. One collection of Specifications ran to one thousand chapters; a

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collection of generally applicable Edicts, Ordinances, Regulations, and Specifications totaled 1,000 chapters, and a collection of rules for the Six Ministries ran to 3,694 volumes (not chapters).50 Although the pace of production slackened somewhat under the Emperors Che-tsung (r. 1086-1100) and Hui-tsung (r. 1100-1126), they still issued, respectively, thirty-five and thirty-eight collections during their forty years on the throne, about one every five months for Chetsung and one every eight months under Hui-tsung." The sizes of some of these collections remained very impressive. Under Hui-tsung these included a 320 volume work on official salaries, a collection of rules for the Hall of Light totaling more than 1,200 volumes, a collection of rules applicable only in individual offices or governmental units with over 900 chapters, and, most impressive of all, a work which ran to almost 1,500 volumes on the rules of etiquette to be used in Korean tributary relations. These represent only four out of the total of thirty-eight collections from his reign, though they were perhaps the longest (there are no figures for ten of these collections).52 The figures for simple numbers of collections are only very generally suggestive. The large majority of them were short—from one to ten chapters—and in some cases were probably abstracted from longer compilations. But the impression given, of an increase in the output of legislation, is obviously and strongly supported by the data of the increasing length of some compilations. CONFLICTS BETWEEN

RULES

Conflicts of rules were inevitable with so many rules in force. To solve them the Sung depended largely on what might be called the principles of proximity and specificity, proximity being embodied in the policy of holding the latest expression of the imperial will to be legally superior to earlier expressions of that will, and specificity being embodied in the determination that specific rules overrode general rules. Under the latter principle, if the state had three rules against homicide—one against killing people, one against killing women, and one against killing wealthy widows—the murder of a wealthy widow would be tried under the last rule, rather than either of the other two. In Sung practice this principle took such forms as a rule that where the regulations of a specific ministry were in conflict with the generally applicable rules, those of the ministry were binding.53 It was an attempt to establish the closest possible fit between the case at hand and the rules. Obviously at a certain point specificity became a handicap since the rules could become too specific to a particular case with all its individual peculiarities. This situation gave

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birth to the rule that case Precedents were not to be cited when there was pertinent material in a set of general integrated laws (fa) covering the situation. The authorities could hardly fail to be aware of the difficulties generated by this mass of legislation. During Shen-tsung's reign there was an unprecedented amount of discussion and reform of the systems of compilation. Possibly the problems created by the large number of new laws were behind the change in the format of compilations instituted under Shen-tsung. Prior to his time it appears that the general pattern was to divide a new set of compiled and edited Edicts (pien-ch 'ih) according to the division of the T'ang Code." The first such compilation during Shentsung's reign which was completed in 1073 seems to have followed the old format for pien-ch 'ih.55 Another such work was ordered in 107656 but when the work was submitted in 1077 it was arranged differently. Instead of being divided first into substantive sections and then subdivided by type of law, the new compilation was divided first by types of law and then, apparently, by substantive divisions. The new compilations were called literally Edicts, Ordinances, Regulations, and Specifications, ch'ih ling ko shih. With the rise of the antireform party after the death of Shen-tsung, a modified policy was adopted. The name ch'ih ling ko shih was retained, but the compilations themselves were divided according to the practice current before Shen-tsung's reforms.57 The retention of the new name probably was meant to make explicit the fact that within each division Edicts were placed first, followed by Ordinances, Regulations, and Specifications in that order. This new system remained in use without apparent change until the end of the Northern Sung, both for generally applicable rules and for rules used in more limited areas.58 CONCLUSION

Even a brief survey like the foregoing should suffice to suggest the directions and limits of change in the Northern Sung system of laws. In some ways there was little fundamental change. Precedents and Edicts had been used under previous dynasties, and, as before, law-finding consisted of locating the latest pertinent expression of the imperial will. Even the change in the meanings of the words ko and shih occurred before the founding of the Sung, albeit perhaps after the fall of the T'ang. Despite these continuities the Northern Sung system did change. Although there might be debate about the details of the figures, it is unarguable that the size of the body of potentially applicable laws increased greatly and changed in both character and style of compilation. Some of the roots of these changes are apparent, others less so. The

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great output of legislation in the Northern Sung should no doubt be traced to two principal factors—the rapid and radical changes in economy and society then occurring, and the determination of the emperors (and their closest advisors) to exercise close control over events. Determined to keep abreast of the changes, the Sung emperors produced a flood of decrees and imperial judgments. It should be remembered that for the hapless official engaged in law-finding, the law compilations represented the minimal numbers of potentially applicable laws. In 1099 the men who worked their way though the Precedents for judging criminal cases ended up with a compilation which included only 141 items, but they began with over 10,000. Consulting their final compilation might not have been excessively difficult, but an official acting in 1098 rather than 1100 must have faced an appalling task. Nor was this problem confined to Precedents. The periodic compilations of Edicts were prompted by their proliferation. It was reported in 1026, for example, that almost 8,000 generally applicable Edicts had been issued since 1014. Just prior to an order for compilation a conscientious official might have been forced to work his way through thousands of uncompiled later Edicts before he ever got to the point of consulting a compilation. 59 The changes which were largely responsible for this growth in the body of Edicts reached a crisis level during the reign of Shen-tsung. The radical reforms attempted during that reign are well-known. It is to this reforming spirit that the issuing of a large number of compilations of Specifications should be traced. They reflect the thoroughness of the reforms, which are revealed as having touched even the minutiae of official life. The other major change in the Northern Sung was the increasing use of large bodies of Precedents, that is, imperial decisions on individual cases, rather than more general rulings as embodied in Edicts. This development, which was particularly marked during the late Northern Sung (and the Southern Sung), had one intriguing implication. Since an imperial order in the form of a Precedent dealt with an individual case, on the surface it was not an amending piece of legislation in the same sense as an Edict, which was phrased more generally. That is to say, Precedents were either in conformity with the existing body of law, or were individual exceptions to that law, rather than amendments to it. Their very lack of generality, with the consequent need for analogical reasoning, opened the way for the growth of legal casuistry. However, top government leaders were interested in control and predictability, not sophistication. Their focus was on broad policy, not legal minutiae. Below them was a layer of civil servants who also thought of themselves as prepared for political activity primarily by virtue of their classical education, and not by their

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expertise. The true experts in the handling of the huge mass of Precedents were the (despised) professional clerical personnel. Predictably, their use of the case decisions was seen by their superiors as "corruption" or "manipulation."60 Reasonable officials were placed in an untenable position. The body of current Precedents was simply too large for them to handle successfully. Even if they went to the compilations of laws they might easily choose wrongly. Not trusting their own judgment, and fearing to put themselves at the mercy of their clerks, they began during the last quarter century of the Northern Sung to refer problems to their superiors, seeking specific imperial decisions (chih) for their particular cases. Each such decision of course added yet another Precedent for others to consider, but that was not likely to deter an overburdened official. As a result, from the time of Hui-tsung there were complaints that officials were no longer even bothering to go to their law compilations, but were appealing for specific decisions "on the grounds of convenience."61 In one sense this appeal for central decision in the form of imperial decisions (which would become Precedents) was but a further extension of the "autocratic" tendency of the Sung that had been expressed earlier in the dynasty with the outpouring of Edicts settling local problems. It was this drive for centralized control which probably precluded any radical solution to the underlying problem. Certainly confusion was created by the kind of centralization and discretionary power symbolized first by the rise of Edicts on minor affairs and then of Precedents stemming from particular cases, but such conditions also symbolized and reflected the authority of the emperor. As one Northern Sung official put it, with startling candor, [As for] the collected Precedents of the Six Boards being made into legal items (t'iao) [we should note that] systems of laws (fa) have a fixed structure, but incidents are endlessly changing. If you make a system of laws for such incidents it cannot encompass them. Also there are differences in the seriousness of the cases, in applying or not applying [rules] which stem from [your] decisions of the moment. [If such things] are generalized into a system of laws, then affairs will revert to [the control of] the officials, and the rulers' control will be lost. . .

It hardly could be more baldly put. The rulers' self-interest guaranteed that they would not wholeheartedly resist, and indeed might encourage, a movement toward an increasing use of imperial judgments, whether embodied in Edicts or Precedents. Economic and social change might stimulate an outpouring of new laws and this mass of laws might encourage the use of more flexible law forms; the interests of the emperors prevented any concerted effort to resist this transformation.

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NOTES

Works frequently cited have been identified by the following abbreviations: CPCSPM: HCP: SHY: TFSL: YH:

Hsu tzu-chih t'ung-chien ch'ang-pien chi-shihpen-mo (Rough draft for a continuation of the comprehensive mirror from beginning to end). Li Tao, Hsu tzu-chih t'ung-chien ch'ang-pien (Rough draft for a continuation of the comprehensive mirror). Hsu Sung, ed., Sung hui-yao chi-kao (Collected Sung documents). Hsieh Shen-fu, ed., Ch'ing-yiian t'iao-fashih-lei (The classified laws of the Ch'ing-yiian period). Wang Ying-lin, Yii hai (Jade sea).

1. See Miyazaki Ichisada, "So-En jidai no hosei to saiban kiko" (The trial systems of the Sung and Yuan periods), Toho gakuho (Kyoto) 24 (February 1954). Hereafter cited as Miyazaki, "So-En jidai." 2. See Denis Twitchett, "A Fragment of the T'ang Ordinances of the Department of Waterways Discovered at Hin-huang," Asia Major 6, pt. 1 (1957): 23ff. Hereafter cited as Twitchett, "A Fragment." 3. The classic study of the Sung hsing-t'ung is that of Makino Tatsumi and Niida Noboru, "Ko 15 ritsu-sogi seisaku nendai ko" (On the compilation of the Ku T'ang lii shu-i), TdhdgakuhO (Tokyo) 1 (1931): 121ff. See also Niida Noboru, "Tambo horitsu shiryo" (Observations on some materials for legal history), TbhogakuhO 5 (July 1935): 51-58. 4. The ling of the T'ang were painstakingly reconstructed by Niida Noboru in To ryd shu-i (The T'ang ordinances recollected) (Tokyo: TBkyo Teikoku Daigaku Shuppankai, 1933). No attempt has been made to collect the Sung ling. Several pieces of evidence indicate that the term was broader in usage during the Sung— the fact that there seems to be no other term (like shih in the T'ang) which would cover low-level and local rules, the fact that ling are defined in several places in a general way as nonpenal administrative rules, and, more significantly, the collections of Sung times with titles like Single Prefecture Single Subprefecture Collected Edicts and Single Circuit Edicts and Ordinances. Unfortunately none of these compilations have survived. 5. For the use of ko in the T'ang see especially Sogabe Shizuo, "So-dai no hoten rei" (Legal compilations of the Sung period), T&hoku Daigaku Bungakubu kenkyu nempO 15 (1965): 213. Hereafter cited as Sogabe, "So-dai no hoten rei." See also Naba Toshisada, "TB-dai no noden-suiri ni kansuru kitei ni tsukite" (On the regulations concerning agricultural irrigation in the T'ang dynasty), Shigaku zasshi 54, no. 1 (1943): 23-24. Hereafter cited as Naba Toshisada, "TB-dai." There are abundant examples of Southern Sung ko preserved in Hsieh Shen-fu, ed., Ch'ing-yiian t'iao-fa shih-lei (The classified laws of the Ch'ing-yiian period) (Tokyo: Koten Kenkyu-kai, 1968) (hereafter cited as TFSL), which include rules determining such things as the numbers of attendants and personnel attached to offices or officials, the amounts of supplies to be given out, the degrees of rewards for difficult service or merit, time periods for reinstatement in office, numbers of questions in examinations, quotas of recommendees for grants or for protection (yin), amounts of restricted materials allowed to officials (by rank), pay rates for workers, amounts of rations, beginning and ending dates for sub-

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mitting taxes, amounts of demotion under specific conditions, rates of fines and commutations, lengths of mourning leaves, numbers of funeral paraphernalia, lengths of mourning for various persons, and so on. Other examples from the Southern Sung Li-pu t'iao-fa (Laws of the Ministry of Personnel), Yung-lo tatien ed., show ko determining numbers of terms in office and numbers of sponsors for various promotions and other such quantitative aspects of personnel administration. The list could be prolonged but these examples should suffice to indicate the character of Sung ko. Since these are Southern Sung examples it might be wondered whether the change in meaning happened during the Sung. However we have from 1007 an order that the "Regulations on rewards for merit to be given to military officers be set up" which suggests that already early in the Sung there was a connection between ko and quantitative rules (Li Tao, Hsu tzuchih t'ung-chien ch'ang-pien [Taipei: Shih Chieh Shu Chii, 1954], 66/12a. Hereafter cited as HCP). 6. For the shih of the T'ang see Twitchett, "A Fragment"; Naba Toshisada, "15-dai," esp. p. 28ff; and Niida Noboru, "Tonko hakken To Sui-bu shiki no kenkyu" (A study of the T'ang ordinances of the Department of Waterways discovered at Tunhuang), Hattori Sensei koki shukuga kinen rombun-shu (1936), pp. 761-788. For Sung shih see Brian E. McKnight, "Patterns of Law and Patterns of Thought: Notes on the Specifications (shih) of Sung China," Journal of the American Oriental Society 102, no. 2 (1982): 323-331. 7. Sogabe, "So-dai no hoten rei," pp. 220-221. In this article Sogabe argues that the meanings of the terms ko and ling changed under Shen-tsung and that shih remained unchanged, but this cannot be accepted. His statement that ling became chiefly prohibitive rules (yakuchoku kinshi) is simply not supported by our examples. Presumably he is referring to Shen-tsung's characterization of the kinds of laws (see HCP 298.18a). But the Emperor's words here are elegant rather than accurate. Furthermore shih were clearly very different (our early Northern Sung examples indicate that this change did not occur under Shentsung). Finally our (admittedly rather thin) evidence about early Northern Sung ko indicates that this word also had changed its meaning by the early Sung. See, for example, HCP 12306.22a (973 A.D.). 8. HCP298.18a. 9. The continued use of the term in a general sense is shown in many of the documents describing the compilation process, where ch'ih are divided up according to whether they are penal or not. 10. It should be noted that in such Sung materials the common compound kushih meaning venerable usages and often translated "Precedent" is rare, while li occurs frequently. 11. Cf.//CP26.3a, 43.1a, et passim. 12. HCP23.13b, 43.4b, et passim. 13. HCP 12306.7b. 14. HCP 5.13b, 51.9b, 55.12a, 67.12a, 76.8b, 79.10a, 90.16b, 117.11b, 127.6a, 140.1a, 391.5a-b, 12306.7b. 15. HCP 508.10a. See also HCP 140.1a, 391.5a-b; SHY, chih-kuan section 5.11a-b. 16. For the process of judicial review in the Sung see Miyazaki, "So-En jidai," and Hsu Dau-lin, "Sung-ch'ao hsing-shih shen-p'an chung te fu-ho chih" (The system of reviews of criminal judgments in the Sung dynasty), TUng-fang tsa-chih 1 no. 1 (July 1973), p. 23ff. 17. Wang Ying-lin, Yii hai (Jade sea), Chia-ch'ing woodblock ed. (1806) (here-

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after cited as YH), 66.32b; SHY, hsing-fa 1.6a; Hsu tzu-chih t'ung-chien ch'angpien chi-shih pen-mo (Rough draft for a continuation of the comprehensive mirror from beginning to end) (Reprint, Taipei: Wen-hai Publishing Co., 1967) 66.1a (hereafter cited as CPCSPM)-, SHY, hsing-fa 1.8a-b; / / C P 246.14b, 254.13a. 18. See notes 14, 15, and 17. See also SHY, chih-kuan 5.9a; SHY, hsing-fa 1.9b, 13a, 18a, 29b, 30a; HCP 315.17b, 432.12a, 435.lib, 497.19b. 19. HCP 276.14a, 327.12a. 20. SHY, hsing-fa 1.21a. 21. SHY, hsing-fa 1.21a. 22. SHY, hsing-fa 1.16a; HCP 307.12a. 23. SHY, hsing-fa 1.9a. 24. The earliest dates from 1022. On the TFSL see Niida Noboru, "Ei-raku Daiten-hon Shin-gen joho ji-rui ni tsuite" (On the Yung-lo Ta-tien edition of the classified laws of the Ch'ing-yiian period), in his Chugoku hosei-shi kenkyU, vol. 4 (Tokyo: Tokyo University Press, 1964). For the best description of the Li-pu t'iao-fa see Makino Tatsumi, "Ei-raku Daiten-hon SO Ri bu jOho ni tsuite" (On the Yung-lo Ta-tien edition of the laws of the Ministry of Personnel), in Ichimura Hakase koki kinen T5y0-shi ronsO (Tokyo: Fuzambo, 1933), pp. 1087-1110. For the shen-ming of the Sung see his explanation in Makino Tatsumi, "Shin-gen johO ji-rui no DG-Shaku mon" (The section on Buddhists and Taoists in the classified laws of the Ch'ing-yiian period), Shukyu kenkytt shin, 9, no. 2, p. 71. 25. For the principle that rules already compiled are not again to be cited see HCP 286.2a-lb. This reference is to a particular compilation but I suspect it reflects general practice. 26. Cf. the adoption of certain Later Chou precedents (HCP 5.13b). 27. See, for example, a complaint in 995 that the Ordinances and Specifications in use had not been revised and so contained many names and designations from the Five Dynasties period (SHY, hsing-fa 1.1b). 28. HCP 304.13b. This piece of evidence suggests that during the T'ang, Specifications was a broader category than it was during the Sung, and included not only the kinds of low level administrative rules described in the articles by 1\vitchett, Naba, et al. previously cited but also the sorts of rules covered by Sung Specifications. Of course it is also possible that the change in the nature of the rules designated shih happened during the late T'ang, after the period described in these articles. 29. HCP 82.9b. This decree might of course have been in one of the now missing sections of the Sung hsing-t'ung but this seems unlikely. 30. The fullest report on this compilation is preserved in Lii Tsu-ch'ien, Huang-ch'ao wen-chien (Literary materials of the Sung), SPTK ed., 63.1bff. See also F//66.20aff; SHY, hsing-fa 1.1a; / / C P 4.16a. 31. Pien-ch'ih were also compiled under earlier dynasties. See, for example, the T'ai-ho pien-ch'ih (Collected edicts of the T'ai-ho period) of T'ang Wentsung, though usually such T'ang collections were called ko. See Sogabe, "So-dai no hoten rei," p. 214. 32. HCP 104.22a; CPCSPM 32.5a. 33. YH 117.23a. 34. HCP 11.13b, 36.8a, 160.2b, 514.1b; SHY, hsing-fa 1.1a, 2a, 3b, 4b, 9a, 12b, 26a, 32b; YH 31a, 35b, 66.20a. 35. SHY, hsing-fa 1.2a; //CP43.14a-15a; CPCSPM 16.4a-b; YH66.23a-24b. Parallel passages here let us identify the term tao, which occurs frequently in

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Sung time legal documents, with the term t'iao. T'iao, which I have translated as "legal item," seems to mean a set of sentences concerning one subject, rather than a single clause. 36. HCP 220.19a. 37. HCP378.4a. 38. HCP276.14a. 39. HCPlttMn. 40. SHY, hsing-fa 1.8a; HCP 216.9a. 41. SHY, hsing-fa 1.25b. 42. HCP 310.3b. 43. HCP377.14a-b. 44. Most of the information for this section comes from the HCP and the SHY, hsing-fa. This is supplemented by information from CPCSPM, YH chapters 66 and 117, and T'o T'o et al., Sung shih (Sung history) (Taipei: Yee Wen Publishing Co., 1965), chap. 204.5b-9b. For the reign of T'ai-tsu see HCP 3.1 la, 5.13b, 9.2a, 14a, 12306.22a; SHY, hsing-fa 1.1a. 45. HCP 36.8a, 20.21a, 21.5a. 46. HCP 45.11b, 48.2a, 48.7b, 56.5b, 61.2a, 67.12a, 71.18b, 76.8b, 79.10a, 90.1b, 90.16b, 91.5b; SHY, hsing-fa 1.2a, 3a, 3b, 4a. 47. HCP 104.24a, 113.4a, 117.11b, 123.5a, 127.6a, 146.6b, 160.2b, 181.9b, 185.4a, 188.10b, 201.1a; SHY, hsing-fa 1.4b, 5a, 5b, 8b. 48. HCP 208.6a; SHY, hsing-fa 1.6a, 9b. 49. HCP 211.16b, 241.3b, 245.19b, 246.12a, 246.14b, 251.4b, 255.2b, 255.11a-b, 255.12a, 269.12a, 278.4a, 280.4b, 280.21b, 283.14a, 285.1a, 292.2b, 293.6b, 298.5a, 299.22a, 299.23b, 300.9b, 302.7b, 305.11a, 307.19b, 308.7b, 309.2a, 309.3b, 325.4a, 330.4a; SHY, hsing-fa 1.8b, 9a, 9b, 11a, 12b. 50. For Che-tsung see HCP 368.22b, 373.12a, 374.24a, 381.26a, 432.12a, 435.11b, 449.19b, 458.18a, 471.15b, 479.8b, 484.19b, 485.15b, 497.19b, 508.10a, 511.10a, 512.12a, 514.1b. For Hui-tsung, # C P 24.6a, 24.9b, 30.2b; SHY, hsingfa 1.13a, 13b, 14b, 17a, 18a, 18b, 20a, 22a, 22b, 24b, 25a, 26a, 27a, 29b, 30a, 31a, 32a. 51. J7/66.35a-b; HCP 334.6b; SHY, hsing-fa 1.12b. 52. SHY, hsing-fa 1.25a, 29b, 30a. 53. HCP286.1b-2a; SHY, hsing-fa 1.28a. 54. We are told explicitly that the compilation of 1032 was divided into twelve sections according to the pattern of the T'ang Code (and the Sung hsing-t'ung) (SHY, hsing-fa 1.4b). The compilation of 1047 followed this pattern (HCP 160.2b). No other compilation explicitly states that the arrangement of the T'ang Code was followed, but this clearly seems suggested by the division of the compilations of 998 and 1062 into thirteen sections (apparently twelve chapters plus a one-chapter table of contents) (SHY, hsing-fa 1.2a; y//66.31b). 55. SHY, hsing-fa 1.9a. 56. SHY, hsing-fa 1.9b. 57. HCP407.16b-18a. 58. See, for example, the collections of 1091, 1093, 1094, 1096, 1099, 1103, 1104, 1106, 1107, 1110, 1112, 1116, 1117, 1119, 1121 (HCP 11.3b, 24.9b, 458.18a, 484.19b, 514.lb; HF 1.17a, 22a, 24b, 26a, 27a). 59. HCP 508.10a, 104.22a. See also CPCSPM32.5a, 5b. 60. SHY, hsing-fa 1.21a. 61. SHY, hsing-fa 1.29a, 30a. Traditionally the minister Ts'ai Ching has been

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bitterly attacked for subverting the regular legal system through the issuing of special imperial orders. The men who railed against Ts'ai for this portray him as a man so covetous of personal power that he deliberately set out to break down the legitimate system. The material noted here suggests that there may have been other, more deep seated reasons behind the flood of special decrees. Of course, it is possible that local officials were encouraged to ask for special decrees because they knew that this fitted in with the desires of the chief minister, but it seems at least as plausible that they imposed on him, not the other way round. 62. SHY, hsing-fa\.21b.

BIBLIOGRAPHY

Chang Wei Ta Chin chi li if (Collected rituals of the Chin dynasty), Pai-pu Ts'ung-shu Chi-ch'eng ed. Hsieh Shen-fu Mif.ed. Ch'ing-yiian t'iao-fa shih-lei ^^L-f^iirfM (The classified laws of the Ch'ing-yiian period). Tokyo: Koten Kenkyu Kai, 1978. Hsu Dau-lin "Sung-ch'ao hsing-shih shen-p'an chung te fu-ho chih" M % "U-H + llL&^'l (The system of reviews of criminal judgments in the Sung dynasty). Tung-fang tsa-chih 7, no. 1 (July 1973). Li Ch'eng Ying-tsao fa-shih %¡£.0: ^ (Specifications on palace construction). Shanghai: Commercial Press, 1929. Li-pu t'iao-fa (Laws of the Ministry of Personnel), Yung-lo ta-tien ed. Li Tao Jfc. Hsu tzu-chih t'ung-chien ch'ang-pien (Rough draft for a continuation of the Comprehensive Mirror). Taipei: Shih Chieh Shu Chii, 1954. Lii Tsu-ch'ien S iilfc. Huang-ch'ao wen-chien iLiflXSS- (Literary materials of the Sung). SPTK ed. Makino Tatsumi faff "Ei-raku Daiten-hon So Ri-bu joho ni tsuite" ^ A ^ ^ IP I - ^ *»1 (On the Yung-lo Ta-tien edition of the laws of the Ministry of Personnel). In Ichimura Hakase koki kinen Toyo-shi ronso if? # -i # %Z. it & # £ (A collection of essays on East Asian history in honor of the seventieth birthday of Dr. [Sanjird] Ichimura). Tokyo: Fuzambo, 1933. . "Shin-gen jo-ho ji-rui no Do-Shaku mon" $ T C ^ i i ^ l R jJiXH (The section on Buddhists and Taoists in the classified laws of the Ch'ing-yiian period). Shukyu kenkyu shin 9, no. 2. Miyazaki Ichisada "f J4"¡fr it_. "So-En jidai no hosei to saiban kiko" x . f t Z Sk^'Il^tt (The trial systems of the Sung and Yiian periods). Tdhdgakuhd 24 (Kyoto, February 1954). Naba Toshisada Wi&i1] A- "To-dai no noden-suiri ni kansuru kitei no tsuite" f f t < o % WjM'] i : M t £ & & K $fc 5 t (On the regulations concerning agricultural irrigation in the T'ang dynasty). Shigaku zasshi 54, no. 1 (1943). Niida Noboru i "Ei-raku Daiten-hon Shin-gen jo-ho ji-rui ni tsuite" S C T ^ ' t (On the Yung-lo Ta-tien edition of the classified laws of the Ch'ing-yiian period). Chiigoku hosei-shi kenkyu, vol. 4 Tokyo: Tokyo University Press, 1964. . "Tambo horitsu shi-ryo" if f# £ (Observations on some materials for legal history). Tohd-gakuho 5 (July 1935).

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. "Tonko hakken T5 Sui-bu shiki no kenkyu" H ' i ?Jc Sf £ (A study of the T'ang Ordinances of the Department of Waterways discovered at Tunhuang). Hattori sensei koki shukuga kinan rombun-shu 1936. . To ryo shii-i ^r -Jo i t (The T'ang ordinances recollected). Tokyo: Tokyo Teikoku Daigaku Shuppankai, 1933. Sogabe Shizuo § ^ I p S f . "So-dai no hoten rei" -ft ft >i -ft |§ (Legal compilations of the Sung period). Tohoku Daigaku Bungakubu kenkyu nempo 15 (1965). T'o T'o Jftflfc et al. Sung shih (Sung history). Taipei: Yee Wen Publishing Co., 1965. Tou I H,. Sung hsing-t'ung ^.ffjife (Sung penal conspectus). Taipei: Wen-hai Publishing Co., 1954. Twitchett, Denis. "A Fragment of the T'ang Ordinances of the Department of Waterways Discovered at Tun-huang." Asia Major 6, pt. 1 (1957). Wang Ying-lin JL/&AI. Yii-hai iiljr (Jade sea). Chia-ch'ing woodblock edition, 1806.

Yang Chung-liang

Hsu tzu-chih t'ung-chien ch'ang-pien chi-shih pen-mo itl^ (Rough draft for a continuation of the Comprehensive Mirror from beginning to end). Reprint. Taipei: Wen-hai Publishing Co., 1967.

Edo Period Studies on T'ang, Ming, and Ch'ing Law OSAMU OB A

INTRODUCTION

Chinese institutions and governmental systems as well as Chinese culture had great direct influence on Japan during the sixth, seventh, and eighth centuries. During the Edo period (1603-1868) the influence of Chinese culture, although less direct, was still important and significantly affected Japanese life. In the earlier period the Japanese had used the T'ang Code as the basis for their own first law codes, which continued at least nominally in force for centuries. However, prior to the Edo period the Kamakura shogunate (1185-1333) neglected the T'ang-based Japanese code. In the Edo period, when the Kamakura and Muromachi (1338-1573) laws were revised, the authorities reasserted the importance of China as an example to Japan by adding some elements drawn from the Ming (1368-1644) codes and by making certain aspects of later Chinese law a part of samurai law. The direct influence of Chinese law during the Edo period was hindered by the Tokugawa isolationist policy which permitted only Holland and China to send merchant ships and set up factories at Nagasaki, the only open port. The Dutch ships were sent only by the Dutch East India Company, but there were no restrictions on Chinese ships. So long as the crew and merchants were Chinese, the backers could be Ch'ing officials, supporters of Koxinga's rebel regime, the king of Siam, or even the Dutch East India Company at Batavia. One peculiar feature of the Edo period isolationist policy was the strict prohibition on Japanese going abroad. As a result of this rule, the intro132

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duction of Chinese culture depended either on Chinese who came to Japan or on imported Chinese books. Of the Chinese who visited Japan and helped to introduce Chinese culture, not all were famous people; they also included numerous unknown merchants and crewmen from Shanghai, Ning-po, and other seaside cities. It is estimated that when such travel was most frequent, about two hundred vessels carrying some ten thousand Chinese landed at Nagasaki in a year. The products of Chinese origins brought to Nagasaki in this way provided the greatest Chinese cultural influence on Japanese life in the Edo period. Among these products particular attention must be paid to imported Chinese books. When did the Japanese import books? And what sorts of books? How many were brought? Who bought and read them? When were they reprinted and republished in Japan? A knowledge of the history of this book trade is imperative for any proper study of Japanese cultural history. Furthermore, it is a concrete and physical way of exploring one of the key themes in the history of ideas. This study will focus on one aspect of this process of cultural influence, the importation and use of Chinese books on law by Japanese scholars.1 In order to understand the influence of the Chinese example on Japanese law and life in the Edo period, one must clarify the role of research on the T'ang, Ming, and Ch'ing codes during the Edo period, and the relationship of such research to the people who visited Japan and to the people who imported books. THE BOOK TRADE

Information is limited on the number of books published in China that were brought to Japan. In 1826 Noda Tekiho corresponded with a Ch'ing merchant, Chu Liu-ch'iao, who had been washed ashore in Suruga. Chu wrote: There are many, many books published in my country, and in recent years a great many of them, perhaps seventy to eighty percent, have been brought to Nagasaki. The people of your country translate them. There is no need to be concerned about them being understood. 2

His statement that seventy to eighty percent of the books recently published in China had been brought to Japan is certainly noteworthy, though of course it must be treated with care. It is impossible to make really reliable estimates since the volume of publishing changed over time. 3 We can say, however, that during the Ch'ing dynasty publishing flourished in the Chiangnan district. Peking bookmarket merchants from this region carried on an active trade in the publishing, retailing,

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and importing of old books from this area. Books from Kiangsu and Chekiang were very numerous, and most of the ships that came to Japan were Ning-po ships or Nanking ships from Shanghai. 4 Books were imported in large numbers. Whether or not the Japanese understood them or even read them is another matter. Wang P'eng, a man from southeast China who traveled regularly between Shanghai and Nagasaki for a period of twenty years beginning in 1764, wrote in his Experiences in Eastern Seas (Hsiu haip'ien): More and more Chinese books are imported into Japan as time passes. Curious Japanese people generously pay much money to buy them whenever a Chinese ship comes to Japan and gather them as treasures and in innumerable numbers. But they do not understand the meanings. It is as if the books were in ancient characters like those on Shang or Han bronzes. They are proud of possessing them but cannot use them.'

Wang was a cultured man, a master of poetry and painting, and he spoke Japanese fluently. Thus his contemporary observation is especially revealing. S T U D I E S OF T ' A N G L A W

Ordinary Japanese purchasers of Chinese books may not have been able to use them, but there was an active tradition of Chinese studies in this era, which reached a high point under the eighth shogun, Tokugawa Yoshimune (r. 1683-1751). Since Yoshimune was much interested in Chinese law and, moreover, had great influence on the politics of the Edo period, an investigation of his attitude toward Chinese law is an excellent way of coming to understand both his times and his achievements. Yoshimune's studies of T'ang legal materials were focused on law per se. He was chiefly interested in the T'ang Code (T'ang lii shu-i). The text used, a manuscript copy kept in the Momijiyama Library, had apparently been in Japan before the beginning of the Edo period. The scholar who provided the corrections and criticisms of this T'ang Code was Ogyu Hokkei, the man most influential in Yoshimune's legal studies in general. It is not clear when Yoshimune commissioned this work, but Hokkei finished it and submitted a report, in the twelfth month of 1725, in which he says that he corrected 3,142 wrong characters, filled in 496 deleted characters, deleted 171 unnecessary characters, and corrected the order of 79 characters. He reports having consulted not only the T'ang Institutions (T'ang liu tien) but also the ancient Japanese codes (wa-ritsu), the Ming Codes, and eleven other works.6 His work allowed him to compare T'ang law with that of the Ming and of ancient Japan. Although many Ming statutes were traceable to T'ang

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prototypes, he found the Ming regulations to be fewer in number but with a larger number of penalties. T'ang law he found easier to understand because the T'ang Code provided detailed explanations, often in the form of questions and answers, concerning the application of regulations. Finally, he noted that there were significant differences between the codes stemming from differences in the respective systems of government and military establishments. He also compared T'ang law with ancient Japanese law, remarking that ancient Japanese law owed much to the T'ang. Indeed, the origins of many everyday Japanese words and traditional customs appear in the T'ang Code, so that it seemed a far more familiar code than that of the Ming. In 1730, in order to check the accuracy of Hokkei's work, Yoshimune ordered the Nagasaki Commissioner to show it to Shen Hsieh-an. Shen, a graduate of the official examinations and the most scholarly person to visit Nagasaki in the Edo period, noted sixty-one character errors, and recorded his notations at the beginning of Hokkei's text. He also separately collected his notations into a book, giving it the name Corrections on the Text of the T'ang Code by Shen Ping (T'ang lii shu-i Shen Ping shih wen ting cheng), and sent it to Yoshimune. (The book is now kept in the Imperial Household Office Library.) Yoshimune so appreciated Shen's work that he gave Shen fifty pieces of silver and a certificate of trade on his return to China. Shen had been ordered home as a result of a complaint by the governor-general of Chekiang, Li Wei, who was concerned about the exporting of forbidden goods. Shen was investigated and thereafter forbidden to sail abroad. However, after Li had been shifted to another post in 1736, Shen again sailed to Nagasaki. At the time of his recall to China he took a copy he had made of the Japanese manuscript of the T'ang Code. In China he showed the Code to Li T'ing-i, then Minister of Justice, who made his own copy and added a preface in which he noted that the Code was unavailable in China. When Shen returned to Japan in 1736, he was able to present this preface to the shogun. (This preface is also kept in the Imperial Household Office Library.) Finally, in 1806, the Bakufu published an official edition (Kanpan) of the T'ang Code with the preface by Li T'ing-i, which incorporated some of the criticisms of Shen Hsieh-an. This Bakufu edition is the basis of some modern Chinese editions.7 S T U D I E S O N T H E MING

CODES

Some Collections of Ming Codes in the Early Edo Period Copies of Ming Codes had been brought to Japan by the early Edo period. When the Momijiyama Library was established in 1639, copies of

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the Great Ming Code (Ta Ming lii) and the Institutions of the Great Ming (Ta Ming hui-tien) were already in the shogun's collections. Even earlier the famous Confucianist Hayashi Razan, who had served the Tokugawa founder, had borrowed the Ming Code from his teacher. Moreover, two copies of the Ming Code, one a Korean and one a Chinese edition, were among the 3,000 books given by Tokugawa Ieyasu to his ninth son Yoshinao, who was enfeoffed in Owari in 1616. (These books, known as the Suruga oyuzuri bon, are currently in the Hosa Bunko Library in Nagoya.) His father also gave to Yoshinao a Korean edition of the Institutions of the Great Ming. This is another interesting indication of the important role played by Korea in the transmission of Chinese culture to Japan. Despite the fact that Yoshinao himself later bought three Chinese editions of the Great Ming Code, one in 1627 and two in 1635, there do not seem to have been any remarkable studies of the Ming Code done in the Owari clan.8 Maeda Tsunanori's Study of the Ming Codes Maeda Tsunanori, who was daimyo of Kaga and other domains, studied and wrote on the Ming Codes. The Kaga clan bought many books, and during the time that Tsunanori governed there he added his own enormous collection to those already held. In this collection, now kept by his descendants as the "Sonkeikaku" collection in Tokyo, there are twentynine versions of Ming Codes published in China. Moreover, Tsunanori himself mentioned in a letter to Suga Mashizu that he had collected several dozen Ming Codes.9 Tsunanori wrote two books on the Codes, entitled A Private Study of Various Books on the Great Ming Law (Dai Min ritsu shosho shiko), in two volumes, and A List of the Books Consulted for the Studies of Ming Law (Min ritsu shosho shiko inyo shomoku). The former appears to be the notes of fundamental ideas for the writing of the latter. In writing the Private Study, Tsunanori first made a list of books concerning Ming law appearing in the Bibliography of the State History (Kuo-shih ching chi chih) of Chiao Hung and in the Continuation of the Collection of Materials on Government (Hsu wen hsien t'ung-k'ao). Then, for every title which he had read, whether on this list or not, he noted the date when he had read it, how he had obtained it, the opinions of scholars he had consulted, and the letters to and from his retainers concerning the search for the book. The dates in these notes fall between the third day of the fifth month of 1709 and sometime in 1716. Tsunanori sought, first, to collect all the books on the Ming Codes found in the two Chinese lists; second, to understand the books that Chinese annotators of the Ming Codes had consulted for their works; and, third, to collect these latter works for his library.

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Tsunanori was thus both a scholar and a bibliophile. In his collecting he favored books published by official agencies, and at times disdained private publications. Concerning a copy of the Newly Prepared Edition of the Great Ming Code and Substatutes as a Mirror for Governing People (Hsin k'oTa Ming lii-li lin minpao ching), he wrote: This copy was bought on the twenty-eighth day, fourth month, of Kogo (1714) by Tohonya Seibei. I will have to compare it with the books in the library. If this is a private publication I shall not purchase it but will return it to him.

He also wrote concerning a copy of the Great Ming Code with Annotations beside the Text (Ta Ming lii-li t'ien-shih p 'ang chu): This copy is well printed and the characters are correct. The construction is in accord with the title Tenshaku [t'ien-shih, that is, annotations to problems]. Therefore we can also rely on the books which the author consulted.

Being a bibliophile, he also consulted with other scholars before purchasing books. In 1712 he asked Muro Kyuso and Okajima Chushiro whether he should buy a copy of the Essentials of the Great Ming Code as Methods for Controlling the People (K'o ching chu Ta Ming lii-li chih min ch'i shu). Kyuso replied that the book was incoherent, but Tsunanori purchased it on the advice of Kinoshita Jun'an who had earlier remarked that "annotations on jyOrei (t'iao-li) are rare. If there are even a few more they will prove very useful."10 From 1709 on Tsunanori was very eager to locate and purchase the following books: 1. Guide to Reading the Great Ming Code (Ta Ming lii tu-fa) 2. Personal Views on the Great Ming Code (Ta Ming lii kuan-chien) 3. Collected Interpretations of the Great Ming Code (Ta Ming lii huichieh) 4. Direct Citations from the Great Ming Code (Ta Ming lii chih yin) 5. Great Compendium of the Great Ming Code and Detailed Classified Commentaries (Ta Ming lii hsiang-chu fen-chieh ta-ch 'uan) 6. Petty Remarks on Reading the Code (TU-lii so-yen) 7. Personal Notes on Reading the Code (TU-lii ssu-chien) 8. Code Interpretations and Suggested Solutions for Problems (Liichieh pien-i) 9. Sources on Official Positions (Chih-yiian) Tsunanori asked the Nagasaki commissioner to search the stocks in the city, but the books could not be located. Therefore Tsunanori asked the commissioner to order any Chinese merchants who intended to sail back to Japan to bring the books with them in the following year. When the Chinese ships arrived in the following year without the books, Tsunanori

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wrote a letter to another commissioner asking that Chinese merchants be ordered to bring them without fail.11 Although his search for these works in 1709 was to no avail, in that year Tsunanori did receive one very welcome addition to his collection. Kinoshita Heizaburo, the second son of Tsunanori's teacher Kinoshita Jun'an, presented to the daimyo an old letter to his father from Sakakibara Koshu written in response to a question about the books Sakakibara had consulted when he wrote his Colloquial Commentary on the Great Ming Code and Substatutes (Dai Min ritsu genkai). This letter may have stirred his interest in the books on the Ming Code held in the library of the Kii clan. Acting through Heizaburo, in the following year Tsunanori asked a disciple of Jun'an who served Kii about the holdings there and recorded the answer in his Private Study. Tsunanori also wrote in 1711 to Suga Mashizu, who had become a servant of Lord Nonomiya (Nakanoin Sadamoto) as a result of an earlier recommendation by Tsunanori, to ask if Suga had these titles, knew someone who owned them, or could inquire of Lord Nonomiya about them. He also asked Suga to search the collections of Nonomiya and other lords in Kyoto. He was still interested in securing titles on the Ming Code as late as 1716, when he ordered Hayashi Saishu (Hayashi Nobuatsu) to find any titles on the Code. As his studies progressed he obviously felt the need for further titles. Tsunanori is certainly an outstanding example of the kind of scholarly interest in things Chinese that could be found among some daimyo in the Edo period. His interest was, on the one hand, practical in that it centered on the Ming Codes rather than on Chinese poetry, for example, yet it was also part of the more general learning about China which occurred at this time. His efforts were part of, and no doubt contributed to, the growth of the sinological tradition in Tokugawa times, a tradition of much importance for the shaping of later Japanese history. Arai Hakuseki and the Ming

Codes

The influence of Tsunanori's teacher, Kinoshita Jun'an, is reflected also in the work of Arai Hakuseki. Arai, on the basis of a recommendation from Jun'an, served Tokugawa Tsunatoyo in Koshu and followed Tsunatoyo to Edo when he became the sixth shogun, under the name Ienobu. As Ienobu's most important Confucian advisor, Arai helped form his policies and served throughout his reign, as well as that of Ienobu's successor Ietsugu. Hakuseki apparently worked on the Ming Codes for about a year and a half. Although he did not have his own notes or books concerning the

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Codes, in the eleventh month of 1714 he borrowed nine copies of the Ming Code and one of the Ch'ing Code from the Momijiyama Library. The books were returned in the sixth month of 1716 when Yoshimune, who had recently become the eighth shogun, dismissed the members of his predecessor's brain trust. Hakuseki's interest in the Codes was very practical and policy oriented. In his diary, Ida nichireki, he wrote, "I have borrowed these twelve books to consider the policy concerning the Nagasaki trade." His new policy on the Nagasaki trade (the so-called Shotoku shinrei) was first enforced in 1715. The distinctive features of the Shotoku shinrei were that it limited the annual amount of trade, permitting entry of only thirty vessels per year, and issued certificates called "shin-pai" for the vessels. These same certificates are referred to in the Ming Code as hsin-p'ai. Hakuseki's studies again reveal the important role played by the Chinese in helping Japanese scholars to understand Chinese law. Hakuseki himself did not know spoken Chinese. On questions of language he consulted Fukami Gentai (also known as Ko Gentai), who despite his name was Chinese by descent and served at the Nagasaki Commission as an interpreter. After 1709, Hakuseki presumably consulted other Chinese at Nagasaki, because Fukami Gentai had gone to Edo after being recommended as a Confucianist due to his outstanding abilities. (Fukami Gentai's son was also a scholar of Chinese law; the latter translated the Institutions of the Great Ch 'ing, or Ta Ch 'ing hui-tien.) This process of consultation is described in the diary of Maeda Tsunanori: In the Great Ming Code (DaiMin ritsu) there are some passages which are difficult for Japanese to understand. For this reason some questions were raised at Nagasaki. Some Confucian scholars from Kiyo [Nagasaki] attended and queried the Chinese. They made a booklet of annotations and presented it to the shogun. I heard this from Takagi Sakuemon and others. I supposed that Mr. Arai [Hakuseki] asked in the name of the shogun, though some of the questions may have come from the shogun himself. In any case Mr. Arai should have had a copy of this booklet. Therefore I ordered Aochi Kurando to ask Mr. Muro, but Mr. Muro did not know. In his reply to Mr. Aochi, Mr. Muro said he supposed it would depend on Hakuseki's own needs. The year before, Hakuseki had said to him that "Sakakibara Koshu made commentaries and translations of the Great Ming Code some years ago, but at some difficult places he translated by conjecture, consulting sentences surrounding the [doubtful] words. Thus I cannot grasp their correct meanings." Because of this Mr. Muro felt that Hakuseki might have made inquiries at Nagasaki at that time. Mr. Muro's letter said, "[Hakuseki] has not been well since the spring, and I have not met him recently. Sometime in the near future when I do meet him I shall ask him and report to you.'"2

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Since the Muro letter is dated in the first month of 1715, Hakuseki made his inquiries in 1714 and clearly used the knowledge he acquired in this way to design a new Nagasaki policy. Studies of the Ming Code under the Kii clan Tokugawa Yoshimune ascended to the shogunate from his position as daimyo of Kii. He was the second son of Mitsusada, the second daimyo of Kii, during whose reign the Ming Codes were studied very actively in Kii.13 Thus, Sakakibara Koshu wrote his work, Colloquial Commentary on the Great Ming Code and Substatutes, between 1690 and 1693 on the orders of Mitsusada. When Yoshimune came to power in Kii in 1705, he inherited a group of scholars interested in this topic. Although Sakakibara Koshu died the year after Yoshimune became daimyo, he was succeeded by his son Kashu, who was also a scholar of the Ming Code. Other Kii Ming scholars were Torii Shuntaku, a disciple of the Korean scholar Li Ir-yang, and Takase Gakuzan, a disciple of Hayashi Hoko. Yoshimune does not seem to have been satisfied with Sakakibara Koshu's Colloquial Commentary, for in 1713 he ordered Kashu to revise and correct his father's work. Torii Shuntaku undoubtedly joined in this task. It is not clear whether or not Takase Gakuzan took part in this work, though he had been active in scholarly work on the Ming Code in the preceding year. Apparently Yoshimune was still not satisfied, even after Kashu had finished his corrections. In the seventh month of 1715, he ordered Takase Gakuzan to prepare a new translation of the Ming Code. Kashu was ordered to help him. In the postscript to his Interpretation and Translation of the Great Ming Code and Substatutes (Dai Min ritsu yakugi) Gakuzan wrote: Obeying the great order respectfully, I began this work in the first ten days of the second month and completed it in the middle ten days of the twelfth month. This is the fifth year of Kyoho [1720].

Thus, Gakuzan began his work on the translation on the orders of a daimyo but completed it for a shogun. Yoshimune as Shogun On the first day of the fifth month, 1716, Yoshimune succeeded to the shogunate on the death of the seventh shogun, Ietsugu. On the morning of this day he attended at Edo castle as the daimyo of Kii, to meet the council of the shogun's most important relatives. He was recommended by others to become shogun, and stayed at Edo castle from this day on, never returning to his Kii residence. During the next four years he busied

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himself reading works that would help prepare him for his duties as shogun, works that included the histories of the Tokugawa family, of the emperors, and of all the daimyos. In these years Yoshimune concentrated on works already in Japan. Only one book was bought at Nagasaki. Then, in 1720, Yoshimune became actively interested in expanding his studies and in purchasing new books. In the first month of that year he relaxed the prohibitions on importing books which had been enacted in 1630 to halt the influx of works on Christianity. Among the banned books had been such works as the First Collection of Studies of Heaven (T'ien-hsueh ch 'u-han), a series of books written by Jesuit priests in Chinese (or translated into Chinese) and edited by Li Chih-tsao. The prohibition had become increasingly strict, so that eventually almost fifty titles were on the proscribed list. The authorities even banned a collection of poetry, the Ming-chia shih kuan, because it contained poems exchanged between Europeans and Chinese.14 Yoshimune relaxed this policy and allowed the importing of books that contained no references to Christianity, because he wanted to be able to study astronomy and almanacs and also works on law. For example, before the fifth month of 1720, he saw the newly imported Institutions of the Great Ch'ing (Ta Ch'ing hui-tien) and the Fixed Statutes and Important Cases (Ting-li ch 'eng-an). Thus, 1720 was a key year, for at that time Yoshimune began to buy the books of which he was fond and to encourage studies in all fields. He also began to question scholars concerning Chinese law. Initially his chief informant seems to have been his old advisor, Takase Gakuzan, and although he did not bring Takase from Kii to Edo, he did pose at least five problems to Takase and received the answers. Moreover, he prompted Takase to continue with his translation of the Ming Code, which was eventually presented to the shogun in 1744, under the title Detailed Translation of the Great Ming Code (Dai Min ritsu shokai). (This work is presently in the Naikaku Bunko.) Studies of the Ming Code by the Ken'en School Group During Yoshimune's reign as shogun the Ken'en school in Edo founded by Ogyu Sorai occupied a very important place in Japanese scholarly circles. Prior to the founding of his school, Sorai had served the daimyo of Kawagoe, Yanagisawa, and the fifth shogun, Tsunayoshi (in 1707). However, from the opening of the Ken'en until his death in 1728, Sorai did not again serve any daimyo. Instead he worked as a "Confucianist teaching in the city" (machi jusha), so that he was free to lecture and publish his works. Sorai, who greatly influenced the study of Confucianism in the Edo period, also worked on legal studies. His most noteworthy works on

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Ming law were his Ming Code with a Commentary in Japanese (Min ritsu kokujikai), which included his annotations (completed in 1725), and a set of diacritics for the Amplification of the Six Admonitions (Rikuyu engi) which he did on orders from Yoshimune. The original Six Admonitions had been prepared on the orders of Ming T'ai-tsu in 1397 for purposes of civil education. During the Ch'ing a teacher from Fukien named Fan Hung wrote explanations giving exemplary cases (t'iao-li) and published his work in 1684. Tei Jun-soku (Ch'eng Shun-tse), a Ryukyuan who was feudal lord of the Nago area, read the work while he was in Fukien as a student and decided to introduce it to the Ryukyus. In 1708, at the time of his fourth visit as tributary ambassador from the Ryukyus, he had the work printed at Fu-chou at his own expense. Some years later, in 1717 or 1718, Yoshimune ordered Shimazu Yoshitaka, the daimyo of the Satsuma clan, to question Ryukyuans who had visited China concerning Chinese criminal law and the actual state of the country. Along with his answers to his inquiries, Yoshitaka presented a copy of the Amplification of the Six Admonitions, with the comment that this work might aid Yoshimune in his search for information on criminal law. Yoshimune recognized that this book would be useful as a moralistic tract for popular indoctrination and ordered Muro Kyuso to add Japanese diacritics, but Kyuso suggested that Ogyu Sorai do the work because of his greater knowledge of colloquial Chinese. Eventually Yoshimune ordered Sorai to provide diacritics and Kyuso to write a translation into easily understandable Japanese. Sorai's work was published late in 1721 and Kyuso's in the fourth month of 1722. Another work by Sorai on Ming law is the Study of the Ming Code (Min ritsu-ko), which contains explanations of difficult words in the Ming Code. Although Professor Matsushita Chu has suggested that this is a work of Takase Gakuzan, it would appear to be Sorai's work for three reasons. In the first place, the vocabulary in the Study is very similar to that in Sorai's Ming Code with a Commentary in Japanese and not at all similar to that in Takase's Interpretation and Translation of the Great Ming Code with Substatutes. Secondly, the copy of the Study in the Sonkeikaku collection has a preface which mentions that the work had been written by Sorai. And thirdly, there is in the Naikaku Bunko a work entitled Handy Annotations of the Ming Code, with Sorai listed as author, that has contents identical with the Study:15 There were other members of the Ken'en circle in addition to Sorai who were interested in Ming law, most particularly Sorai's younger brother Hokkei, whose works are even more important than those of Sorai. The members of this small group of scholars of Ming law drew up

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a statement of purpose and principles to which they bound themselves. The agreement stated that Since criminal law is intimately connected with human lives, whenever your master or the ruling authority asks you about punishments, you should answer showing the text of the Code that applies. Never increase or decrease the penalty for the crime in accordance with your personal inclinations. Never buckle to your master's will, and never treat the Code carelessly, trusting too much to your memory. The Ming Codes are the laws of a foreign country, and come from another age. They developed under traditions different from those in Japan. Never apply them to this country thoughtlessly, and never destroy the basic legal principles of this country. Although the expressions of the Ming Codes are brief and simple, the meanings are deep and various. Understanding the Codes is not easy. Thus there was a special school called the School of Law (hOka) in ancient China. Be careful not to give lectures to thoughtless students. Such thoughtless people exert a dangerous influence on the general public. The member who does not obey these injunctions should be punished by heaven."

At the end of the text of this agreement there are twenty-two signatures, headed by the Chinese name of Ogyu Hokkei (Butsu Kan). Although we cannot be sure when this special group was established, it is clear that they began their workshop before 1719, since one known member died in the sixth month of that year. Ogyu Hokkei wrote extensively on law. Perhaps best known of his works on Ming law is the Ming Code: Kyoho Edition (Kyoho kanko Min ritsu) to which he added Japanese diacritics. This work was published in 1723, with the permission of the shogun. Such permission was necessary because Hokkei had been appointed around 1718 to serve as a Confucian advisor to the shogun (yoriai jusha). As a result, the works that he produced could only be published with the permission of the shogun; thus, some of them remain less well known than the works of Sorai. Another important though little known work of Hokkei is the Elucidation of the Ming Code (Min ritsu yaku) which exists only as a unique manuscript edition kept in the Naikaku Bunko. Written in a beautiful hand on yellow paper, the translation is bound in the same yellow paper, indicating that it was for Hokkei's personal use and not for the use of the shogun. Hokkei says in the preface that the work was done in the first month of 1724, after the Ming Code: KyOho Edition had already been completed. S T U D I E S ON C H ' I N G

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Although Yoshimune possessed three copies of the Ch'ing Code in the Momijiyama Library, he did not read them, perhaps because he had

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already studied the very similar Ming Code. He was interested, however, in the Institutions of the Great Ch 'ing, introduced to Japan for the first time in 1719 and brought to Yoshimune's capital at Edo before 1720.17 Through the Commissioner of Nagasaki, Yoshimune ordered Chinese merchants to bring another copy despite its extraordinarily high price. At the same time he ordered the Fixed Substatutes and Important Cases and other books of the same sort which had come to his attention. In compliance with his order Chinese merchants brought in a manuscript copy of the Institutions of the Great Ch 'ing, which was sent to Yoshimune on the twenty-fifth day of the ninth month of 1722. Prior to this Yoshimune had already decided to have the work translated. He ordered Fukami Kyudaiu, one of his Confucian consultants, to take to Nagasaki the copy of the Institutions first imported to Japan so that he could ask Chinese merchants about indistinct words. Fukami arrived at Nagasaki in the twelfth month of 1721 and returned to Edo in the second month of 1727. Chu P'ei-chang was probably the Chinese merchant with whom he worked before 1725. For the last two years he worked with Sun Pu-tsai. Since Sun had no practical experience as a government official and could not adequately answer Fukami's questions, Sun left Nagasaki to fetch his uncle, Sun Shih-lung, who had served as an official. However, by the time he returned with Shen Hsih-an instead of his uncle, Fukami had already gone back to Edo. Apparently Fukami made his report to Yoshimune three months after his return. It is contained in volumes 50 and 51 of the Series of Famous Scholars (Meika sosho). The first of these volumes contains chapters one through eight of the Institutions of the Great Ch'ing, that is, the sections on the Office of the Imperial Family (Tsung jen fu) and on the Grand Secretariat (Nei-ko). Volumes 51 of the Series includes chapters 81 through 108 of the Institutions, the section on the Ministry of War (Pingpu). Each item is translated article by article, and commentaries are given where needed. Fukami's rendering, which is excellent, is not simply literal, but is rather a summary based upon an understanding of all the contents. The second copy of the Institutions of the Great Ch 'ing, acquired in 1722, was registered in the Momijiyama Library on the twenty-fifth of the ninth month. During the next two years the book was taken out in the shogun's name on three occasions for a total of sixteen months." It seems clear that the actual user of the book was Ogyu Hokkei. Several volumes of the Series of Famous Scholars, containing works by Hokkei which reveal his use of the Institutions, date from this period. For example, in the first period of use the book was withdrawn together with the Collection of Memoranda on Government (Shusei biko). This latter

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work was returned together with two collections of additional laws of the Ch'ing late in 1722. It was just in this period that Hokkei completed a dictionary of legal terms used in the Six Ministries (Liu-pu) of the Ch'ing. This dictionary forms volume 65 of the Series of Famous Scholars. Furthermore, volume 71 of the Series, also by Hokkei, gives Japanese diacritics for the forty-seventh chapter of the Institutions of the Great Ch'ing. Volumes 72 and 78 of the Series, entitled System of Government Officials of the Ch'ing Dynasty (ShinchO kanshoku), contains both diacritics and translations of the sections on the Ministry of War and descriptions of Peking and other areas. Finally, volume 66 of the Series, entitled Difference between the Ming Dynasty and the Ch'ing Dynasty (MinchO ShinchO i do), also contains references to the Institutions. All this evidence makes it abundantly clear that the principal user of the Ta Ch 'ing hui-tien was Ogyu Hokkei, and that Yoshimune's chief interest was in the administrative organization of the Ch'ing dynasty. Hokkei was involved also in the creation of a number of other works dealing with Ch'ing laws. In the last four months of 1722 alone he completed studies on the Collection of Memoranda on Government (Chi chengpei k'ao), the Classified Collection of Substatutes ([Pen chao] tseli lei-pien), and the Complete Book of Substatutes ([Pen chad] tse-li ch'uan-shu). Hokkei was also involved in the compilation of the Questions and Answers Concerning Criminal Law (Oshiokikata mondO sho). This work is a report from Nagasaki giving the answers of Chu P'eichang to twenty-one questions concerning the actual system of law and methods of punishment in Ch'ing China. The questions had been drawn up by Hokkei at Yoshimune's request. Another work based on answers to questions formulated by Hokkei is the Facts about the Ch 'ing Dynasty (ShinchO tanji). This work includes answers on a wide variety of matters including dress, customs, systems of government, the emperor, national defence, and legal matters. Fukami Kyudaiu, who had been dispatched to Nagasaki in connection with the translation of the Institutions of the Great Ch'ing, posed these questions to Chu P'ei-chang, with Sakaki Tojiemon, the Grand Interpreter, acting as translator. Chu, a native of T'ing-chou in Fukien, had served in the army. He arrived in Nagasaki on the fifth of the twelfth month of 1725 and left in the second month of 1726. Hokkei's key role in legal studies is further emphasized by Ogyu Kinkoku in the Various Stories of the Ken'en School (Ken'en zatsuwa), where he says that Hokkei "excelled in the study of law compared with other fields." Given his role in preparing the works noted above, the 1723 study which gave Japanese diacritics to the Ming Code, the 1724 translation of that Code, and the 1725 critical edition of the T'ang Code, it

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seems clear that Hokkei was the most important figure in aiding the legal studies of Yoshimune. Although today many scholars believe that the most important scholar on the Ming Code was Sorai, whose Ming Code with a Commentary in Japanese (Min ritsu kokujikai) is given great emphasis, the above evidence suggests that his brother Hokkei was far closer to Yoshimune and far more influential. CONCLUSION

The study of Chinese law by Japanese scholars exerted an influence on Japanese culture and history. The influence was obvious, direct, and very great during the Sui and T'ang periods. Although it was less obvious in later times we should not underestimate the role of Chinese studies in general and legal studies in particular during the Edo period. Edo law drew on Japanese custom and the commands of rulers as sources of law, but the influence of the Chinese example on both custom and rulers was not negligible. Edo studies of Chinese law began before, and continued after, the reign of Yoshimune, but the galaxy of scholars who worked in his reign and often at his order made especially important contributions to the general understanding of Chinese law. At times these studies were of immediate practical importance, as when the studies of Arai Hakuseki were directly translated into a new policy at Nagasaki. More often, however, their influence was less direct, but we should never forget the influence that Chinese usages, made known through the works of these pioneer sinologists, had on the political and administrative thinking of daimyos and shoguns, and through them on general Japanese culture and government. NOTES Professor Dan F. Henderson has presented an excellent survey on this topic. See D. F. Henderson, "Chinese Legal Studies in Early 18th Century Japan: Scholars and Sources," Journal of Asian Studies 30, no. 1 (November 1970). 1. See Oba Osamu, Edo jidai ni okeru tosen mochiwatarisho no kenkyu (Study of books brought over by Chinese ships in the Edo period) (Osaka: Kansai University Press, 1967). 2. Tokutaisen hitsugo (Record of talks carried on by means of writing with Tokutai ship crew), 2 vols. (Published in Kii in the Edo Period, no date).

3. Oba, Edo jidai, pp. 208-215. 4. Ssu-k'u ts'ai-chi shu-mu (List of books offered from all over the country) (Beijing, 1960). 5. Wang P'eng, Hsiu hai p'ien (Experiences in eastern seas), Chao-tai ts'ung shu edition. 6. Ogyu Hokkei, "Toritsu sogi kaitei jyoso" (Report on revision work on the T'ang lii shu-i), Kaiteishisekishuran 17, satsu rui 254.

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7. Oba Osamu, "Tokugawa Yoshimune to Daishin kaiten" (Tokugawa Yoshimune's interest in the Ta Ch'ing hui-tieri), chap. 5, "Kyôho jidai no Nisshin kankei" (The relations between the Ch'ing and Japan in the Kyôho period), in Hôseishi kenkyu (Legal history review) 21 (1971): 88-95. 8. Sugiura Toyoji, Hôsaunko tenseki sôroku—Suruga oyuzuri bon (Catalog of the Hôsa/Bunko Library) (Nagoya: Jinbunkagaku Kenkyukai, 1975). 9. Kondô Iwao, Kaga shôun ko (Detailed biography of Maeda Tsunanori) (Tokyo, 1909), vol. 2, p. 724. 10. Kondô, Kaga Shôun ko, pp. 163-164. 11. In my book, Edo jidai ni okeru toseti mochiwatarisho no kenkyu, pp. 119120, I misread this record with regard to Arai Hakuseki's having ordered these books, since I was unable to examine Tsunanori's letter at the time my book was in preparation. Professor Henderson, in his survey "Chinese Legal Studies" (mentioned above), raised an important question as to how Tsunanori obtained Hakuseki's list. 12. Kondô, Kaga Shôun kô, p. 728. 13. Matsushita Chu, "Kiishu no Hangaku" (Studies on the Chinese school of the Kii clan), Dai Min ritsu kenkyu (Studies on the Great Ming codes) (Tokyo: Ôtori Press, 1969), chap. 7. 14. Oba, Edo jidai, pp. 32-45. 15. Matsushita, "Kiishu," pp. 160-166. 16. Imanaka Kanji, Sorai gaku no kisoteki kenkyu (A fundamental research on Sorai's studies) (Tokyo: Yoshikawa Kobunkan, 1965), p. 370. Also Matsushita, "Kiishu," p. 141. 17. Oba, "Tokugawa Yoshimune." 18. Bakufu shomotsukata nikki (Daily register of the book manager of Momijiyama Library), edited by Tokyo Daigaku Shiryô Hensansho, Dai Nihon kinsei shiryô series, vol. 2 (Tokyo: Tokyo University Press, 1965).

BIBLIOGRAPHY

Bakufu shomotsukata nikki % Itt ty i} 0 f£ (Daily register of the book manager of Momijiyama Library). Edited by Tokyo Daigaku Shiryö Hensansho, Dai Nihon kinsei shiryö series, vol. 2. Tokyo: Tokyo University Press, 1965. Henderson, Daniel F. Chinese Legal Studies in Early 18th Century Japan: Scholars and Sources. Journal of Asian Studies 30, no. 1 (November 1970). Imanaka Kanji Sorai gaku no kisoteki kenkyü n (A fundamental research on Sorai's studies). Tokyo: Yoshikawa Kobunkan, 1965. Kondö Iwao i i Kaga Shöun kö "Jr (Detailed biography of Maeda Tsunanori), vol. 2. Tokyo, 1909. Matsushita Chü "Kiishü no Hangaku" ¡föJH « s t ( S t u d i e s on the Chinese school of the Kii clan). Dai Min ritsu kenkyü (Studies on the Great Ming Codes). Tokyo: Otori Press, 1969. Oba Osamu -h Iii Edo jidai ni okeru tosen mochiwatarisho no kenkyü ix p -ft; u ¿> 11 h % JtÖ fä "t"