著者

前田 正治

出版者

関西学院大学

雑誌

法と政治 (ISSN:02880709)

巻号頁・発行日

vol.25, no.3, pp.347-386, 1975-03-25

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From some time ago, the writer has been aware the term "kenri(権理)" was used in some juridical books published in early Meiji Era. By chance, the difference between "kenri(権理)" and "kenri(権利)" was discussed at the Annual Meeting of Hoseishi Gakkai (Legal History Association), held in May, 1974,and it stimulated the writer to examine the problem in some detail. As a legal term, "kenri(権利)" had been used in China (then under the Chiang dynasty) in the Chinese translation of Wheaton's textbook on International Law. In 1869,this translation was introduced to Japan by the Maiji Government's Official Translator Mizukuri Rinsho(箕作麟祥), who first used the term "kenri(権利)" in Japan. Since then, this translation has been consistently used in Japanese laws and regulations as well as in other official documents. On the other hand, the term "kenri(権理)" was used, as far as this writer knows, in the books by Kato Hiroyuki(加藤弘之), Fukuzawa Yukichi(福沢諭吉), Furuzawa Shigeru(古沢滋), Ono Azusa(小野梓), Ozaki Yukio(尾崎行雄), Niwa Junichiro(丹羽純一郎) Suzuki Yoshimune(鈴木義宗) Fukumoto Tomoe(福本巴) Kamimura Tadanori(神村忠起) Kurimoto Teijiro(栗本貞次郎) and Kawashima Shozo(川島正三), which were published between 1870 and 1881. The authors of these books did not specify the difference between the two terms. Only Fukuzawa Yukichi used both of them in his book, giving us some clue to the precise meaning of each legal terms; by "kenri(権利)", Fukuzawa meant the general concept of right in modern law, and by "kenri(権理)", he intended to signify the conciousness of legal right held by the people since the feudal period. It should be noticed, furthermore, that those who used the term "kenri(権理)" belonged generally to the group that asserted "Jiyu Minken(自由民権democrtic rights)". It is well presumed that these enlightened authors, not following the official translation, "kenri(権利)", sought to find out the word which would be more logically satisfactory to them. Moreover, as most proponents of Jiyu Minken were of samurai class, they were influenced by the feudal-law consciousness, which had traditionally disliked "ri" (利secular profits) and respected "ri" (理reason), and even if they were staunch advocates of the democratic rights, they had an inevitable repugnance to the Western (Anglo-French) culture. It seems to the writer that these circumstances underlay their usage of the term "kenri(権理)".