- 著者
-
佐藤 雄基
- 出版者
- 公益財団法人 史学会
- 雑誌
- 史学雑誌 (ISSN:00182478)
- 巻号頁・発行日
- vol.120, no.11, pp.1793-1829, 2011-11-20 (Released:2017-12-01)
The document form known as kishomon 起請文 was a sworn statement made under threat of punishment from the gods or Buddhas and is symbolic of the diplomatics characterizing medieval Japan as the period in Japanese history most heavily dominated by religion. The kishomon achieved its legitimacy as an integral part of the Kamakura Bakufu's system of litigation. At first glance, the use of kishomon as an instrument for letting divine beings decide in a legal system essentially based on objective decisions about what was reasonable and what was not (rihi 理非) may seem contradictory, but the author's further analysis shows that the application of such forms as sanro kisho 参籠起請 (sworn pledge to be cloistered in a religious institution to await divine judgment) was implemented only in cases where guilt or innocence could not be determined by conventional methods, thus showing its use in a role supplementary to the rule of reason as the foundation of litigation carried out under the Bakufu's Hojo Family Regency. Furthermore, the more systematic the Bakufu's institutions regarding litigation became, the less it was necessary to resort to sanro kisho, to the extent that the kishomon alternative fell into disuse altogether during the Bakufu's later years. Nevertheless, within the function played by kishomon we can see a unique feature of the medieval Japanese rational mind trying to find order by imbuing legal documents with the power of gods and Buddhas. Next the author turns to the era of governance by the households of retired emperors (insei 院政), in which kishomon began to be used in the stratified shoen 荘園 proprietary estate system and being extended to the local level. Here the instrument came be used in various ways in the adversarial aspects of litigation, rather than in the uniform manner stipulated by legal judgments issued by the Kamakura Bakufu. In other words, as changes occurred in the way rights were verified (shoban 証判) on the local level, the legal apparatus of shoen proprietors (honjo 本所) was put in place to settle disputes on the local level through the medium of kishomon, followed by Bakufu law as an extension of it. Finally, the author looks at the aristocratic regimes of the Kamakura period and finds that even during the 12th century, aristocrats preferred in principle not to adopt the then widely popular function of kishomon in their legal dealings, but rather base their rulings on precedents cited from the Ritsuryo 律令 codes. In contrast, the Kamakura Bakufu by utilizing kishomon as a vehicle for legitimizing its right to settle disputes ended up proactively incorporating the instrument into its juridical system. It was only during the regime of retired emperor Gosaga 後嵯峨 (1246-72) that aristocrats began using kishomon like the Bakufu. The author concludes that despite the heavy influence exerted by the Bakufu's use of the kishomon form of divine justice, the principles of adversarial law remained as the characteristic feature of jurisprudence in the dimension of state power and authority throughout the Kamakura period.