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
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
瀧川 叡一
出版者
法制史学会
雑誌
法制史研究 (ISSN:04412508)
巻号頁・発行日
vol.1994, no.44, pp.1-41,en3, 1995-03-30 (Released:2009-11-16)

"Civilprocedure" (1885), showed to Mr. Kirkwood, said, Hikiainin (_??__??__??_) is a intervener in civil process. I found several judgements of Maebashi-Shishinsaibansho (court of first instance), from 1877 to 1882, now preserved by Maebashi-district court, gave decisions against or in favor of Hikiainin as interveners. This usual practice was not derived from French law, but from the precedent of court in Tokugawa era.This paper analyzes the grounds of the above-mentioned derivation, and explains legal character of Hikiainin in the early Meiji period.
著者
伊藤 貞夫
出版者
法制史学会
雑誌
法制史研究 (ISSN:04412508)
巻号頁・発行日
vol.2005, no.55, pp.121-154,10, 2006-03-30 (Released:2011-04-13)

近年におけるギリシア・ローマ経済史研究で目を惹くのは、M・I・フィンリーの古代経済論への諸家の対応である。プリミティヴィズムとモダニズムとの対抗として要約される、この種の研究視角は数多くの成果を生んできたが、そのなかにあってフィンリーの古代史観の一つの軸をなしながら、方法論的に十分な檢討と意義の評価を受けていないのが彼の奴隷制論である。その特徴は、古典期のアテネやローマ盛期のイタリア・シチリアに見られる大量かつ集中的な奴隷使役を、古典古代にあっても特殊な事例と看做し、相対化するところにある。小論は、前五世紀のクレタで刻されたゴルチュンの「法典」を中心に、関連の古典史料や金石文をも勘案しつつ、軍事的征服と負債とにそれぞれ起因する二種の中間的隷属状況の、古代ギリシアにおける広汎な存在を確認し、かつ後者の型の古典期アテネにおける存続を想定するP・J・ローズとE・M・ハリスの説を批判したのちに、都市国家市民団内部の民主化による中間的隷属者の消滅が代替労働力としての典型的奴隷の使役を促したとするフィンリーの試論を、古典古代社会の歴史的展開の理解に有用な視点を供するもの、と積極的に評価する。フィンリー説の背景にあるのは古代オリエントについての知見であるが、加うるに近代以前の中国と日本の身分制に関する研究成果を以てすべし、との提言で小論は閉じられる。
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.22, pp.105-125,VIII, 1972

The paper submitted by the present writer deals the historical data for investigation of Ezochi (Hokkaido) in 1857—'59. In the middle of the nineteenth century, the Tokugawa Shogunate reinforced political and economical regulation in Ezochi.<BR>Under the shogunal government, the magistrates and the mandataries at Hakodate carried out their policy by means of the patrols around Ezochi. The documents owned by the Hokkaido Government Office (_??__??__??__??_) are the diaries of those patrols around Ezochi in 1857—'59. These data are highly valuable in explaining the shogunal policy toward Ezochi in those days.