著者
山中 至
出版者
Japan Legal History Association
雑誌
法制史研究 (ISSN:04412508)
巻号頁・発行日
vol.1991, no.41, pp.1-44,en2, 1992-03-30 (Released:2009-11-16)

This paper analyzes the legal effect of Geishogi-contract in the early Meiji period, before the enforcement of Old Civil Law, with some unknown decisions of lower courts in Tokyo and Osaka.It contains, First, as for Geishogi-contract, dualistic opinions, labor contract as Geishogi was void against public policy but advance contract was valid, had been dominant during the Old Supreme Court era. In 1955, Supreme Court invalidated the long supported precedent with a unitary opinion and reversed it. This paper clarified, for the first time, that dualistic opinions (e. g., the decision of Tokyo court of appeals in 1878, the decision of Tokyo district court in 1879) had existed before the appearance of the decision of Old Supreme Court and that had been the main stream in lower courts.Second, while there had been the decision of Old Supreme Court in 1896 for Geishogi's freedom of retirement, similarly, we found that it had been admitted in lower courts (Tokyo and Osaka) before it. Furth-ermore, there were interesting decisions that had prohibited a master from forcing Geishogi to work and from taking back the returned. In the case of human traffic as an employment contract, lower courts had remedies for Geishogi's freedom of retirement with dualistic opinions.Third, we found, however, a progressive decision which made an advance contract void for the proclamation 295 in 1872. Finally, we should regard the decision, the substance of an adoption for Geigi was a masked Geishogi-contract and void for the proclamation 295, as the progressive one which was treated as a problem of public policy.
著者
杉谷 昭
出版者
法制史研究
雑誌
法制史研究 (ISSN:04412508)
巻号頁・発行日
vol.1966, no.16, pp.127-143,v, 1966

In this paper, I have made an inquiry into the San-chi-sei of<I> fu </I>(_??_), <I>ken </I>(_??_), and <I>han</I> (_??_) in the Early Meiji Era, especially into the part played by fu during the period just before the abolition of <I>han</I> (clans) and into the establishment of<I> ken</I> (prefecture) from the historical point of view of the word<I> fu</I>. Thus, I have partly made clear the process of the establishment of the centralized national government from the viewpoint of the constitutional history.
著者
大津 透
出版者
法制史学会
雑誌
法制史研究 (ISSN:04412508)
巻号頁・発行日
vol.1998, no.48, pp.119-152, 1999-03-30 (Released:2009-11-16)
著者
杉谷 昭
出版者
法制史学会
雑誌
法制史研究 (ISSN:04412508)
巻号頁・発行日
no.20, pp.77-109,3, 1970

Through the Boshin (_??__??_) War of 1868, the Meiji Government tried to defeat the remaining Shogunate powers by the military force, and to build up a new centralized State of the Emperor's rule with the 8th Century Ritsuryo(_??__??_). The mobilization of military powers took the form of dispatching the Chinbushi (Suppressor), and resulted in the forming of the judicial court which actually was none other than the suppressor's office combined with the civil administration, and further in the establishment of Fu (_??_) as one of the three new administrative district divisions of Fu (_??_), Han (_??_), and Ken (_??_).<BR>Hakodate-Fu (Prefectural Government at the District of Hakodate) was established as an executive organization of civil administration for the development of Ezochi (or Hokkaido). But when it was captured by the remaining Shogunate naval force, the Meiji Government mobilized the military power of the Aomoriguchi Suppressor, and succeeded in uniting and strengthening the military powers of the new Government at the district of Hakodate by the decisive victory of the Boshin War.<BR>In order to clarify the historical significance of the establishment of the Hakodate-Fu prefectural government, the present author has studied the Shimizudani Kinkô Monjo (or the Diary and Notes of Mr. Kinkô Shimizudani, who was the prefectural governor of Hakodate-Fu) (in the National Diet Library, at the branch of the documents of Constitutional Government), and discussed the process from the Ansei period to the new Meiji Era, around the years 1854-1869.
著者
牧 健二
出版者
Japan Legal History Association
雑誌
法制史研究 (ISSN:04412508)
巻号頁・発行日
vol.1954, no.4, pp.51-100,en2, 1954-07-31 (Released:2009-11-16)

In the 16 th century the whole land of Japan was split into so many territories, each one of which was owned and ruled by a feudal lord daimyo, and a feudal lord in those days had an absolute power as strong and mightly as that of the king himself. It is, therefore, nothing strange that the Jesuits, who came over to this island-country all of a sudden and started to work as Christian missionaries, looked upon each one of these feudal lords as kings (reis) of Japan. For the time being, such lords of the land acted like an independent ruler, but later only those influential lords usually called yakata came to be called "king" (rei) and those below were called "principality" (principe).They interpreted the fact that Japan was divided into 66 cuni as reminiscent of the fact that there had been so many kingdoms (reinos). Of course this interpretation was far wide of the mark, and yet the result of this interpretation was not without some distinct effects. When the converted lords-such as Sorin Otomo, Harunobu Arima and Sumitada Omura despatched some boy-envoys to the Vatican to pay homage to the then Pope, the-first two lords were recognized as kings as they had the title of yakata. These envoys were very cordially treated with honors equal to their rank. Needless to say, the fact that Japan, a country in the liar East, had sent a delegation to the Vatican to pay homage to Pope, was taken advantage of by the Vatican in order to carry on a most effective campaign against Protestantism that had spread already wide in those days. And quite naturally Cubo, or Shogun Yoshiteru was looked up to as the Emperor (Emperador) of Japan as he was standing above those kings. He was treated as the emperor belonging to the same category as that of the emperor of the Holy Roman Empire. As the natural result of this, occidentals came to call Japan as an empire. But missionaries of the Order of Christ, though they had made some mistakes at first, gradually came to see that Dayri was the real ruler of Japan-especially after Nobunaga and Hideyoshi acquired power, for they payed homage to Dayri as the Sovereign of Japan. The Order of Christ was allowed to share the privilege just as powerful as that of an influential when the commercial ports Nagasaki and Mogi were given to this Order by the aforesaid Sumitada Omura.
著者
柳橋 博之
出版者
法制史学会
雑誌
法制史研究 (ISSN:04412508)
巻号頁・発行日
vol.2004, no.54, pp.81-113,en13, 2005-03-30 (Released:2010-05-10)

Roughly speaking, studies on Islamic law in the West have been centered around four theses advanced or elaborated by Joseph Schacht (1902-69), represented, among others, in his two monographs, The Origins of Muhammadan Jurisprudence (1950) and Introduction to Islamic Law (1964).First, the formation of Islamic law was a slow process in which the precepts of the Qur'an were gradually extended to cover the subject matters that they do not explicitly cover. In the first centuries of Islam, the popular practice and the Umayyad administrative regulations provided the materials for the nascent Islamic law.Second, in the first half of the eighth century, "the ancient schools of law" were formed in a number of centers of jurisprudence. They represented the average doctrine of each region, but it did not take long before the doctrines were projected back to several past authorities of jurisprudence. This phenomenon preceded the formation of personal schools of law, which were characterized by the adherence to a particular authority.Third, the process of projecting back of doctrine to the past authorities culminated in the fabrication of a large number of the Prophetic hadith (words and deeds of the Prophet), which were finally regarded as second only to the Qur'an as the basis of Islamic law.Fourth, once brought to perfection by the tenth century, Islamic law suffered no substantial change in the following millennium, which phenomenon was known as "the closing of gate of ijtihad (independent reasoning)."Recent studies based on a large number of sources published in the last twenty years and manuscripts that have become accessible to students of Islamic studies have modified these theses. As for the first thesis, recent studies have clarified in details the process during which individual rules were formed in the first two centuries of Islam. Regarding the second thesis, the problem of transition from the regional school to the personal school has been discussed based on the analysis of different kinds of sources, such as biography or works of positive law. The third thesis concerning the authenticity of the Prophetic sunna did not cease to be one of the most disputed subjects of Islamic law. The fourth thesis is no longer maintained, particularly after Wael B. Hallaq published a number of important treaties that shed light on the elaboration of science of theoretical bases of Islamic law.It should be noted that many studies have been undertaken that are focused on the relationship between Islamic law and the medieval and modern Islamic societies.In Japan, it was not until the middle of the eighties that study of Islamic law was undertaken on the basis of the original texts, although a few historians had used sporadically legal sources. Now a number of legal texts or works related to Islamic law have been translated into Japanese, such as the Shìhs of al-Bukhari (1993-94) and Muslim b. H ajjaj (1998), The Ordinances of Government of al-Mawardi (1981-89, of which a revised edition will appear in a couple of years), al-Raw d al-murbi' of the Hanbali jurist al-Bahutì (2002-) and Ma'alim al-din wa-maladh al-mujtahidin of the Shi'i jurist Ibn Zayn al-Din (1985).A History of Islamic Law of HORII Satoe (2004) is the first work in Japanese that deals with the development of the law since its formation in the seventh century up to the present day. It deserves to be mentioned because it assigned a large portion to the legal development since the tenth century, when Islamic law was brought to perfection with the four Sunni schools of law being established. Few scholars are specialized in the theoretical foundation of law (u s ul al-fiqh), but studies by Wael B.Hallaq and 'Abd al-Wahhab Khallaf have been translated.
著者
児玉 圭司
出版者
法制史学会
雑誌
法制史研究 (ISSN:04412508)
巻号頁・発行日
vol.64, pp.1-57,en3, 2015-03-30 (Released:2021-03-20)

本稿は、明治前期における監獄制度の展開を、受刑者に対する規律という観点から捉えようと試みるものである。 本稿ではまず、日本における死刑の不可視化と、身体刑から自由刑への完全な切り替えが、いずれも一八八二年の旧刑法施行によって達成されたことを明らかにした。 監獄の規律に関する最初の変化は、一八七三年以降にあらわれる。その内容は、以前と比べて、受刑者の生活や行動に関するルールが厳格化されるというものであった。これは、自由刑の採用によって受刑者が急増したこと、およびそれにともなって彼らを管理・統制する必要が生じたことによるものである。 一八七六年以降、東京警視庁や内務省による主導のもと、各地の監獄において、受刑者をその習熟度に合わせて教育し、あるいは服役態度を評価するといった統治技術が新たに導入されている。その背景には、西洋の法制度に関する知識の流入と、これによって生じた改革機運があった。 その後、一八八二年になると、監獄制度の設計者は、監獄の目的は受刑者を「良民」に作りかえることにあると理解するようになる。そして彼らは、規律への順応に応じた優遇措置など、受刑者の内面に働きかけるさまざまな統治技術を、法制度の中に組み込んだのである。 しかし、少なくとも一八八七年にいたるまで、監獄行政の現場では、過酷な労働を科すなど、肉体的苦痛を与えて懲ら しめることによってこそ受刑者の改善がもたらされるとの主張が根強く、先に記した統治技術は十分に活用されるにはいたらなかった。その背景には、国家が受刑者の労働力を求めていたという実情や、当時流行していた、刑罰に対する復古的な思潮が影響を与えていたものと考えられる。