著者

中田 薫

出版者

法制史学会

雑誌

法制史研究 (ISSN:04412508)

巻号頁・発行日

no.3, pp.1-111,en1, 1953

被引用文献数

1

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In this voluminous treatise Dr. Nakada intends to supply some points which were left untouched in his two recently published treatises:. " Opinions on, the old Japanese Law-including some views on Chinese legal History " .(in Vol. I of this Review) pp. 4-12, pp. 21-28, and. " Evolution of the Chinese Legal System " (Comparative Law Review, . Vol. I. No. 4.). The author makes efforts, as in the previous treatises, . to treat the subjects synthetically and in a wide prospect. Historical and constructive thinking, sharp and profound, of a great scholar runs through the whole pages. Indeed, we find in it the best description ever known of the general history of the Chinese legal system and philosophy from the beginning to the era of Tang dynasty. It is. almost impossible, to summarize its contents here. Only a brief mention shall be made of the subjects it discusses.<BR>The treatise is divided into two parts.<BR>Part 1. On the law of premium and penalty, before Chin Shihhuang-ti.<BR>The author grasps the general character of the law in ancient China-as the law of premium and penalty. He says that these two were the main means in the hands of feudal sovereigns by which they governed their states, penalty being the more important one ; laws, which were no other than declarations of the sovereign will, were enforced by penalty directly or indirectly. Next the author follows various trends. of legal philosophy one by one : that of the traditional Chinese orthodoxy, and those of Kuan-tzu (_??__??_), Chuang-tzu (_??__??_), Shen-tzu (_??__??_), Yin-wen-tzu Shen-pu-hai (_??__??__??_), Shang-tzu (_??__??_), and Han-fei-tzu (_??__??__??_). And summarizes points of each doctrine by clear words. He also picks up paragraphs of law which remains in the. lines of classics and classifies them according to their concerns.<BR>Part 2. On the origin and development of the <I>Lü-Linq</I> (_??__??_) Codes. from Han to Tang dynasty.<BR>The author endeavours above all to clear up questions about the legal system in Han dynasty. It has already been discussed in his late treatises that, in Han, <I> Lü</I> (_??_) was the fundamental code while <I>Ling</I> (_??_) was the supplimentary code consisting of occasional ordinances of Emperors, the distinction between the two not being penal and non-penal codes as is generally conceived, and the latter distinction beginning in Chin (_??_) dynasty. In the present treatise, he consolidates that opinion of his by solving, - with admirable -clarity, many questions in details, which have long puzzled Chinese and Japanese scholars and which have not been thoroughly solved in -the author's previous treatises. Furthermore, he refers to <I>K'o</I> (_??_) and <I>Pi</I> (_??_) :-<I>Pi</I> -meaned judicial precedents in general, some of which were authorized through a sort of law-making procedure and were called <I>K'o</I>. Therefore <I>K'o</I> was a sort of supplimentary laws to the<I> Lü-Ling</I> codes.<I> K'o</I>, which -dates from Han dynasty, became in Northern Wei (_??__??_) also called <I>Ko</I> (_??_). In Sui (_??_) dynasty Ko became a special kind of code which modified <I>Lü</I> and <I>Ling</I>, at the same time, <I>Shih</I> (_??_) or the code regulating details of bureaucratic business was compiled, and so was accomplished the well known system of four codes <I>Lü-Ling-Ko-Shih</I>. in Sui and Tang era. (Shuzo. Shiga)