6
The Tokugawa Juridical Field and the Power of Law

"Unreason < Reason < Law < Authority < Heaven"
Tokugawa dictum

"I'll go to Edo"
Ken; Kami-Kaize village officials in the hinin kidnapping case; Chuemon's^[*] relatives in the Bonboku Incident; Others

In this study, the intravillage/extravillage dichotomy, especially the ways in which the intramural and extramural were mutually imbricated, is a major theme. Villages had two sets of regulations, laws with an extramural origin and internal codes, and the relationship between them changed over time. With regard to village justice, penal practices in principle existed by sufferance from the overlords and often functioned in "illegal" ways. Certain informal practices suggest that the overlords silently acknowledged some of these irregularities. Probably more often than not, village and overlord authorities were in mutual agreement about administrative matters, whether openly or silently.

Order, Justice, Instrumentalism, and Formalism

The principal concern shared by overlord and village authorities was the maintenance of order , which did not necessarily always mean the same thing to both. This parallel interest also governed and informed legislation and judiciary practice. As the first epigraph above indicates, authority does not yield to law. At the same time, however, commoners who were dissatisfied with that order as it affected them personally often threatened to go or indeed did "go to Edo" in the hope of finding justice there.^[1]

[1] While this perspective of justice informs some of the cases analyzed in this study, I came to see its importance clearly through discussions with Maeda Ichiro^[*] and other participants in the seminar at Omni University in Kyoto in the summer of 1994 and with Christine Schoppe at UCLA, whose contributions I gratefully acknowledge here.

Order and justice—these two Tokugawa perspectives on the role of judiciary practice also implicate the village in the wider field of power, but more important, they represent two opposing views of the relationship between the juridical domain, including legislative and judiciary practice, and the field of power. For the rulers (and scholars who, with them, view Tokugawa society from the top down), an instrumentalist view is almost inescapable: the juridical domain is foremost a means to maintain the power distribution over which the rulers preside. Obvious on a macro-, social scale, this is also valid at a micro-, local level. The internally generated "village" rules regarding status in Hozu village and the whole Mino region (for genin and small peasants) or Tanoguchi village (for newly established titled peasants) are clear examples. The system of "titled" peasants, "shares," and status differentials among peasants served the same purpose.

On the other hand, commoners turned to petitions, suits, and the courts to seek redress, right wrongs, and, ultimately, find justice, perhaps hoping that something else—reason, good sense, empathy?—might prevail besides or against the authorities' vested interest in order. The imagined locus for finding this formal , meta-institutional justice was most stereotypically Edo, but no petition or suit was devoid of that expectation. Thus, the assumption underlying the practice of many commoners was that the juridical field was (should be) somehow independent of worldly powers and institutions; otherwise, why bother petitioning or suing at all? In the course of this study, we have encountered a number of such instances. Ken threatened to go to Edo, as did Kami-Kaize's village officials in the kidnapping case of Mon, the hinin woman. When a certain Seigoro^[*] was voted into jail without evidence that he was the Higashi-Kami-Isobe village arsonist, his relatives marshaled all possible resources to set him free. The kawata also resorted to petitions and suits: Nagase hamlet (the Clog Thongs Riot) brought a suit against Ogoseimaichi village; before staging their protest, the kawata of Okayama domain resorted to petitions; Hozu's kawata sued the small peasants with good effect; and kawata sued one another.

At a more general level, an institution like the kokudaka system, a means used by overlords to systematically extract their subjects' sur-

plus, was used as leverage by the peasants to obtain greater fairness in the allocation of burdens at the village level. The plaintiffs' sense of justice only rarely caused them to target status institutions as such, as it did in the instance of Hozu's peasants' demand that they cease to be treated as hereditary vassals by the gomyo^[*] , who considered themselves rural samurai; or when a group of clients (kakae) in Kodaira village demanded that the system of main and branch houses (kakae and kakaeoya) be abolished; or when kawata questioned the official discriminatory policies, arguing that they were, after all, tribute-paying peasants.

At first sight one might be inclined to generalize the contrast between the institutional status order and the personal sense of justice as one between particular and universal values if it were not for the fact that any explicit justification one might identify as universal or natural is to be found on the side of the status order This sense of justice, rarely expressed discursively, is limited almost exclusively to the level of practice. I have attributed this practical sense to assumptions about the possibility of finding formal justice in the juridical sphere apart from the administrative dictates of social order.

Structurally, of course, the juridical domain in Tokugawa Japan was not independent from the administrative apparatus but an integral part of it: administrators also functioned as judges. In terms of the categories Bourdieu uses to characterize a longstanding dichotomy in the interpretation of the status of the jurisprudential field—instrumentalism and formalism—historians of Tokugawa Japan would readily side with the instrumentalists. The instrumentalists conceive the world of law as a direct reflection of the world of power and therefore as an instrument of domination pure and simple.^[2] This view holds that the juridical field, a mere superstructure without autonomy, permeated throughout by heteronomous social power, generates no specific force of its own. In contrast, formalists posit (modem) law as a domain closed off from the social world and hence as functioning solely according to its own specific dynamic, logic, or rules.

The value to a discussion of Tokugawa Japan of the polemical scheme that has structured a debate about the relationship between modern society and law may seem limited. Here, all will agree, the issue is clearly settled structurally and institutionally in favor of the instrumentalist interpretation. Yet, further questions need to be addressed.

[2] Bourdieu, "Force of Law," 814-17.

First, it remains to be seen not whether but how an explicitly instrumentalist juridical institution contributes in its own specific, symbolic but real way (as transformed, surplus social power) to the social forces that created it. In this respect, Bourdieu speaks of oblique and misrecognized ways in which outside (heteronomous) forces affect juridical activity that in turn deploys functions that are not identical but homologous to the operation of these forces. Second, at times the instrumental function clashed with the commoners' practice springing from a desire for a kind of justice (which I call formal or meta-institutional) that was not simply a conduit for domination. Attention to such areas of practice will modify our natural inclination to view the juridical as an instrument of power in premodern, "feudal" societies. Third, since juridical practice, even when it is instrumentally overdetermined, as in Tokugawa Japan, generates its own specific symbolic power, one has to examine (1) where such development starts to function through the formalization and routinization of its own practice, as a brake on the arbitrary use of heteronomous power, and (2) how this symbolic power was put to use by plaintiffs for their own struggles, which had nothing to do with the rulers' instrumentalist intentions.

Formalist legal history pays scant attention, if any, to law's embeddedness in society. Its narratives typically do little more than trace the genesis of modern juridical concepts, seemingly for the exclusive entertainment of practitioners of law. Strange as this may seem today, all prewar and most postwar Japanese legal historians, following German models, organized their analyses in this fashion.^[3] Postwar social historians, however, bringing the study of law within the ambit of social history and fully aware, from a modern perspective, of the underdevelopment of an autonomous judiciary in premodern (and prewar) Japan, have aligned themselves until recently with the instrumentalist (Marxist) position.^[4] Since the 1980s, Mizumoto Kunihiko and other historians have explored another dimension. One can loosely theorize their

[3] See, e.g., Nakada Kaoru, "Tokugawa jidai ni okeru mura no jinkaku," Kokka gakkai zasshi 34 (1920): 8, reprinted in Hoseishi^[*]ronshu^[*] , vol. 2. (Iwanami shoten, 1938), 963-90. See also the introductory remarks to chapter 4, above.

[4] Kodama Kota^[*] , in his review of Maeda Masaharu's classical study of village laws, Nihon kinsei sonpo^[*]no kenkyu^[*] , seriously questions the latter's thesis of even limited autonomy mainly in terms of the origins of village laws, which, as Maeda readily admits, were skillfully used by the authorities and gradually absorbed by them (see Kodama's "Hihyo^[*] to shokai^[*] : Maeda Masaharu, Nihon kinsei sonpo^[*]no kenkyu^[*] ; furoku sonposhu^[*] ," Shigaku zasshi 60, no. 9 [1951]: 66-70). Any grand-scale analysis of the function of the Tokugawa legal system winds up as instrumentalist almost by necessity; see, e.g., Mizubayashi Takeshi, Hokensei^[*] ; and idem, "Kinsei no ho^[*] to kokusei kenkyu^[*] josetsu," Kokka gakkai zasshi 90, nos. 1-2, 5-6 (1977), 91, nos. 5-6 (1978), 92, nos. 11-12 (1979), 94, nos. 9-10 (1981), 95, nos. 1-2 (1982).

position as closer than the positions of the instrumentalists and formalists to Bourdieu's notion of field and field-specific power used from below for specific local interests not immediately related to the forces that shaped the field in the first place.^[5]

Although Bourdieu emphasizes the relative autonomy of the juridical field and its specific "world-making" power, he nevertheless sees this field's output almost exclusively as feedback to society sanctioning the power structure of that society. He would probably argue that any subversive power that law might possess is itself ultimately subverted by the social and class embeddedness of the juridical field—an argument that would hold a fortiori for more neutral uses of the law from below. Because legal action has to follow the rules of the juridical field in order to be legal action, and insofar as these rules themselves serve heteronomous power (which for Bourdieu is very far, if not all the way), there would be "in the last instance" no "neutral" use of the law.

In this final chapter, then, I shall try to specify how the juridical field, on both the legislative and the judiciary side, exercises its instrumental function and where and how that instrumentalism meets internal and external limits.

Contextualizing Tokugawa Legislation

Let us start with some very broad strokes at the risk of stating the obvious. Legislation of the Tokugawa period was Tokugawa legislation, which means that it was created over the course of two and a half centuries. This suggests two things: qualitatively, that it was by and large new, and quantitatively, that there was much more of it at the end, in the 1860s, than in the early 1600s.

Tokugawa legislation was new because it replaced earlier codes. The eighth-century Ritsuryo^[*] codes, supplemented by the Kamakura and Ashikaga shogunal formularies of the thirteenth and fourteenth cen-

[5] Asao Naohiro reports on this new trend in Japanese scholarship in his "Kinsei no mibun," 24, 35, 38.

turies, were partially superseded by the military provincial laws of the sixteenth-century daimyo, all of which, in turn, were replaced by Tokugawa legislation.

It is no exaggeration to say that virtually all of the warrior codes from the sixteenth century were abandoned and replaced with new legislation, which no doubt retained certain of their stipulations; conspicuous are cruel punishments. Harafuji Hiroshi cites just one example as an exception, a house law enacted in 1555 that was applied in the late Tokugawa period.^[6] It should also be mentioned that the Ritsuryo^[*] model had some formal influence on Yoshimune's Kujikata osadamegaki of 1742, according to Dan Fenno Henderson "the high point of written native law in Japan," and on the Tokugawa reformatting of the imperial institution.^[7]

Tokugawa legislation surpassed that of the past also in volume. Various factors account for this increased legislative activity, which was aimed at regulating ever more areas of daily practice. Legislation became calibrated to a much more finely tuned status society. This set severe limits on its potential to universalize, because what could otherwise have been general norms required multiple refractions, a striking example being the discriminatory legislation introduced during the eighteenth century against the kawata. Moreover, legislative growth was stimulated, mainly in the second half of the period, by the requirements of an unprecedented expansion of commerce, which could not be accommodated by status legislation. In addition, laws and regulations were issued not only from the higher authorities, shogun, daimyo, and their representatives, bannermen, or intendants (lordly law), but also from various constituent social units, such as villages or status orders

[6] On these points, see his "Han Laws in the Edo Period with Particular Emphasis on Those of Kanazawa Han," Acta Asiatica 35 (1978): 51-53.

[7] Dan Fenno Henderson, "The Evolution of Tokugawa Law," in Hall and Jansen, Studies , 204. See also idem, "Introduction to the Kujikata Osadamegaki (1742)," 539-40. For Mizubayashi Takeshi's recent theories on the importance of the Ritsuryo^[*] system for a proper understanding of the imperial institution in Japanese history, including its particular institutionalization under the Tokugawa, see his "Bakuhan taisei ni okeru kogi^[*] to chotei^[*] ," NNS 3:120-58; "Kinsei tennosei^[*] kenkyu^[*] ni tsuite no ichi kosatsu^[*] : kinsei tennosei^[*] no sonzai hitsuzensei ni tsuite no shogakusetsu no hihanteki kento^[*] ," Rekishigaku kenkyu^[*] , nos. 596 (1989): 18-27, 597 (1989): 19-33, and 598 (1989): 57; and "Ritsuryo^[*] tennosei^[*] ni tsuite no ichi kosatsu^[*] (1)," Tokyo-toritsu Daigaku ho^[*]gakkai zasshi 30 (1989): 1.

("corporate law"), where, moreover, practice was also regulated by local tradition (customary law).

The Tokugawa period no doubt witnessed not simply a multiplication of laws but the constitution of an increasingly complex juridical field that was structured quite differently from either its modern or its medieval counterparts if only because of the different relationship it had with sociopolitical power. As stated above, in Tokugawa Japan, rulers were also both legislators and judges. This fact alone, one may presume, reduces the autonomy of the juridical field to virtually a zerodegree level, and the very notion of such a field to little more than an artificially (anachronistically) constructed category of dubious heuristic value. The assumption, however, is that the application of sufficient analytical pressure via the notion of "juridical field" will yield more insights about the absence in the Tokugawa legal system of a separation of powers or a formal rationalism.

Max Weber's elementary typology of law distinguishes between an "interpretation of law on the basis of strictly formal concepts" ("formal rationalism") and "adjudication that is primarily bound to hallowed traditions" (substantive rationalism). He argued that for settling ambiguous cases the latter is supplemented by (a ) charismatic justice, by oracle or ordeal; (b ) kadi justice, "informal judgments rendered in terms of concrete ethical or other practical valuations"; and (c ) empirical justice, based on analogical reasoning and reliance on precedents.^[8] Weber warns against a simple identification of modern legal systems or democratic systems of justice with formal rational adjudication: kadi justice is still very prevalent in England, as empirical justice is in America. But he suggests that formal rationalism in the juridical field does not develop without a bureaucratization of the polity.^[9] These precautions

[8] Weber, Economy and Society , 2:976. Weber does not type traditional justice as a form of "substantive rationalism." In view of the way he defines formal and substantive rationality in terms of economic action (ibid., 1:85-86), however, the term substantive rationality is appropriate for describing traditional justice since it refers m the application of "certain criteria of ultimate ends, whether they be ethical, political, utilitarian, hedonistic, feudal (ständish ), egalitarian or whatever, and measure the results of economic action, however formally 'rational' in the sense of correct calculation they may be, against these scales of 'value rationality' or 'substantive goal rationality.'" A few lines further on he adds "social justice" as a possible value (see Bourdieu, "Force of Law," 825 n. 33, 842 n. 59).

[9] Weber, Economy and Society , 2:976-78.

by Weber notwithstanding, Bourdieu suggests that Weber idealistically assumed the possibility of "rational law," but Bourdieu argues that predictability and calculability should be measured in terms of the consistency and homogeneity of a historically specific habitus rather than against an abstract "rationality."^[10] For Bourdieu, therefore, there exists only one kind of rationalism, substantive rationalism.

The juridical field of Tokugawa Japan was marked by substantive rationalism. Lordly law was a mixture of kadi justice and empirical justice. In village law and practice, as we have seen, a form of charismatic justice was often added to this mixture by the custom of "ordeal by voting" in the absence of any concrete evidence on the identity of thieves or arsonists. Formal development, however, was not totally absent. It was made possible, but not necessary, by the development of a bureaucracy during the Tokugawa period.

The newness of the Tokugawa juridical field can be explained in a straightforward functionalist manner by pointing to the new configuration of forces that forged a sociopolitical field that differed from the one that preceded it. In the sixteenth century institutional arrangements and power relations that had prevailed since the early Middle Ages, considerably weakened since the fourteenth century, were completely scrambled and reconstituted on a new basis, first by daimyo and then, toward the end of the century, by superdaimyo such as Oda Nobunaga and Toyotomi Hideyoshi. The sociopolitical field, traditionally structured as a tripartite power block of nobles, clergy, and warriors, who were buttressed economically by the shoen^[*] , or estate, system and legally bound to the Ritsuryo^[*] system and shogunal law, was replaced by the daimyo's monopolistic hold on power and territory, secured through sheer military force.^[11] The Tokugawa system guaranteed the preservation of this monopoly and gave it a hierarchical structure under the hegemony of a shogun who was more powerful than any daimyo at the time or any shogun (or emperor) of the past.

The Tokugawa system is thus perhaps better rendered as a regime of conquest than as a feudal order. The shogun, daimyo, and warriors by

[10] Boardieu, "Force of Law," 833.

[11] Neil McMullin reports that during the Muromachi period more than 25 percent of the land in Japan belonged to temples and shrines, while during the Tokugawa period the number of temples increased but land shares dropped to a mere 2.5 percent (Buddhism and the State in Sixteenth Century Japan [Princeton: Princeton University Press, 1984], 23, 251).

and large constituted a new class that achieved domination of the whole national territory and population through the application of unprecedented military force. And they sought to secure their gains through a peace settlement whereby coercive violence was reduced to a threat and a remedy of the last resort, supplemented by the authority of law—a form of symbolic violence that was also of unprecedented magnitude.

The context of conquest, needed to properly understand some of the dominant features of Tokugawa society and law, such as an obsession with the maintenance of hierarchy, population control, social order buttressed by an overall lack of juridical autonomy that lasted throughout the whole period, is in fact a context of two conquests. First was the complete domestic victory of warriors over all other warring and nonwarring groups (other warriors, religious institutions, organized peasants, autonomous towns), a victory accompanied in the last three decades of the sixteenth century by specific institutional arrangements and measures of social control, which were spelled out in local legislation. Second, in the late 1580s and 1590s, with the formation of Hideyoshi's paramount military power and the extraordinary emergency requirements for foreign conquest (aimed at China but successful only briefly in Korea), regulatory creativity, both institutional and legislative, expanded and took on a national character (within limits set by the division of power between Hideyoshi and the daimyo).

Many commoners, although often victims of the first conquest and shouldering the inevitable sacrifices of the second, probably felt relief at the stabilization that followed a century or more of civil war. There is little doubt that control deepened as a result of the national effort of foreign war and the extraordinary need to secure the domestic peace for the production and procurement of military supplies and manpower. And these emergency measures did not end when the troops returned home, but remained in place throughout the Tokugawa period, when they were articulated further.^[12]

[12] Fujiki Hisashi's contextualization of Hideyoshi's "Peace Laws," which laid the basis for the Tokugawa system (Toyotomi heiwarei to sengoku shakai [Tokyo Daigaku shuppankai, 1985]), has drawn new attention to the military character of Tokugawa governance. Chapter 2, above, presents Takagi Shosaku's^[*] elaboration on the theme of Tokugawa Japan as a "garrison state." Many Tokugawa thinkers shared the view that Tokugawa governance (institutions, tax burdens, and so on) had come into being in the context of the warfare of the sixteenth century and were inappropriate for peacetime. For Arai Hakuseki, see Kate Wildman Nakai, Shogunal Politics: Arai Hakuseki and the Premises of Tokugawa Rule (Cambridge: Harvard University Press, 1988), 293-94; for Sorai, see J.R. McEwan, The Political Writings of Ogyu^[*] Sorai (Cambridge: Cambridge University Press, 1969), 33, 96; for Motoori Norinaga, see his Hihon tamakushige , in Motoori Norinaga zenshu^[*] , vol. 8 (Chikuma shobo^[*] , 1972), 336 ff.

Consider for a moment some elements of the ruling apparatus assembled during those years: data on the size of the population and the productive potential of the land, legislation binding peasants to agricultural production, monopoly on juridical power, and the exercise of violence by the highest authorities, rights that earlier had rested with local communities and guaranteed them varying degrees of self-determination. This whole ensemble of regulations, arrangements, and measures was implemented on a national scale to launch the Korean expedition. It was with that aim (or under that pretext?) that Hideyoshi could inform himself of the economic potential of the whole country, get accurate estimates of available supplies for his armies, make sure that there were producers to produce them, and secure domestic peace so that his military adventure abroad would not be hampered by interruptions or trouble at home. Thus, institutions developed in the extraordinary context of conquest and accordingly provided with high degrees of control (surveillance, harshness, and alarmism turning mundane tasks and activities into duties for the public authority, the country, in short, "patriotic" duties) became permanent features of Tokugawa normalcy. Two hundred and fifty years of virtually unchallenged military hegemony and pressures of commercial development attenuated somewhat the tenor of institutional and legal arrangements launched under such extraordinary circumstances. Still, the Tokugawa system continued to bear its birthmarks until its demise.^[13]

The general allocation of power under this regime, its dispersion and limits within the social field, especially in the early period, is directly relevant for an understanding of the juridical field and its own specific

[13] Takagi Shosaku^[*] argues that samurai status rankings were rooted in the military functions of very early Tokugawa times (NRT 3:203-23). And Kurushima Hiroshi demonstrates, as mentioned in chapter 2, that perceptions by commoners of their duties of military support and assistance, duties originally defined in the 1630s but nominal for much of the next two centuries, were still very strong and functional in the civil war that brought about the fall of the Tokugawa (Kurushima, "Kinsei gun'yaku").

structure and power.^[14] Once the wars were over, the matter of ruling the realm, that is, of ensuring the continuity of the new order fashioned after the victors' interests, could not be dispensed with (as the Mongol or Manchu conquerors did in China) by relying on already established institutions or legislation. There were no national government organs that could do the conquerors' bidding. They had to invent the state— anew, one might add, after its first institution in the seventh century.^[15]

Like a colonial conquering power, these would-be rulers had to operate within the limits imposed by the existing social infrastructure, which even the most totalitarian modern regimes are incapable of refashioning completely at will. The only social groups that were eliminated, or forced into underground existence, were religious organizations such as the Catholic Church and the Buddhist Fujufuse sect. This limitation on power's downward reach was further aggravated by the decision, made in order to better block at the source possible challenges from within its own ranks, to hold the ruling class hostage to itself (alternate attendance), which was misrepresented as host to itself, in urban centers.

These circumstances greatly determined the shape of the field of power, which was allowed—indeed, forced—to follow the general contours and inner divisions of the social field. Lordly power first of all added legal sanctions to already existing social divisions and thereby claimed the authority to control them. In this way, overall social stability was built by strengthening inwardly the separate spaces of all the constituent units—the villages, domains, towns, status groups—and by controlling these spaces indirectly from the outside by ensuring that

[14] Relational concepts of power fields allow one to bypass the academic debate concerning whether, or to what extent, Tokugawa Japan was feudal or absolutist. For the latest additions to this debate, see Mary Elizabeth Berry, "Public Peace and Private Attachment: The Goals and Conduct of Power in Early Modern Japan," Journal of Japanese Studies 12, no. 2 (1986): 237-71; and James White's response, pointed and m the point, "State Growth."

[15] In a series of recent articles, Mizubayashi Takeshi has drawn attention to the importance of the imperial institution for the organization of the Tokugawa polity. He argues that the restitution was saved and resurrected (in its religio-ritual aspects only at the very end of the seventeenth century) by the bakufu to meet specifically structural needs (see his works cited in n. 7, above). This supplements my treatment of this subject in my Tokugawa Ideology , esp. 28-35 passim, 51-55, 162-73.

coopted prominent insiders were held responsible for intragroup law and order, shouldering the costs thereof.

The superordinate powers of the shogun and daimyo subcontracted members of commoner groups for "administrative" purposes, foremost for supervising the production and delivery of tribute, which supported the rulers; at the same time, they handed over to prominent local families the burdens and privileges of maintaining local law and order. More than "subcontracting" was involved, however. Legally sanctioned because they were connected to ruling power by official duties, these groups were transformed into something more than they had been, one of the practical effects of "world-making" typical of state power.^[16] The state, or more accurately, the lords, did not merely subsume groups but subjected them to a social and economic logic, telling them what they were to be and what they were to do. Lineages were still effective, but now their contours acquired new significance by way of new institutions and leadership positions (goningumi, kumi heads, titled peasants). The outside appointment of village heads set in motion internal power struggles.

These structural constraints distanced the dominant class, the warriors, from the sites of production, the villages, while they made direct infrastructural reach unnecessary. At the same time, the rulers pushed as far as was necessary and feasible the principle of a single sociopolitical hierarchy; it was in their interest that there be only one such hierarchy and that they control it. The position of the emperor made such an effort problematic at the top. While the emperor was politically neutralized and controlled by shogunal regulations, his very existence raised the question of the hierarchical apex: should it culminate in the shogun or in the emperor? As John Haley has remarked, "Neo-Confucianist views of suzerainty were more than inadequate in rationalizing the respective roles of emperor and shogun ... law sourced in the will of the shogun ... law and lawmaking [were transformed] from simply an expression of legislated regulation, custom, and precedent into a manifestation if not source of legitimacy as well."^[17]

[16] On the dialectic involved in legal "world-making," of creating or instituting a social reality that already exists, see Bourdieu, "Force of Law," 838-39, and his Ce que parler veut dire: L'économie des échanges linguistiques (Paris: Fayard, 1982), 125 ff.

[17] Haley, Authority without Power , 54, 55.

Two solutions were proposed to end this ambiguity—clearly testifying to the desirability of a single hierarchy. In the early eighteenth century Arai Hakuseki's effort to raise the shogun's legal status to that of a king and Ogyu^[*] Sorai's proposal that the bakufu devise its own rank system independent from the court were obvious attempts at clarifying the position of the shogun vis-à-vis the emperor by making the former unambiguously the pinnacle of a single hierarchy.^[18]

Through hierarchization, the shogun and daimyo fixed directly the positions of all constituent groups, including the nobility and the clergy (no longer partners in government with the warriors as they had been in medieval times), and through them indirectly made (new) subjects of everyone. This strategy entailed two consequences: (1) the unavoidable and essential reliance on regulations, laws, and practices to determine and express hierarchical status while representing it as natural; and (2) the dual origin for laws and practices, namely, the bakufu and lords, and the corporate (territorial and status) units.

The lords' primary concern lay with any intergroup jurisdictional problems—among domains or villages, between court and warriors, among kawata or temples, and, for commoners, among occupations— because such discord tested the ability to maintain the principles of hierarchy, and with the serious and potentially explosive problems of maintaining intragroup order, because they could affect the position of the constituent units within the one hierarchy. The corporate groups also produced internal laws and regulations to the extent that they were entrusted with juridical matters.

It should be noted, however, that the infrastructural reach of superordinate (public, "state") power, although subject to the above flections, extended deeper during the Tokugawa period than previously. In medieval times, self-redress, the armed variety in the form of vendettas, was a socially accepted and legally sanctioned remedy, whether among individuals, clans, villages, village leagues, towns, temple communities, city wards, or warrior bands. Warrior courts and public investigations were available, but only upon the request of the parties involved: "even

[18] On Hakuseki, see Nakai, Shogunal Politics , chap. 8; on Sorai, see McEwan, The Political Writings of Ogyu^[*]Sorai , 90-94. On the neutralization of the emperor during the first Tokugawa century, see my Tokugawa Ideology , chap. 5.

a murder in front of the jail [i.e., under the eyes of the authorities] should not be investigated unless someone initiates a lawsuit."^[19]

The Tokugawa as "state," however, monopolized in principle the use of coercive force: armed self-redress was outlawed, and all serious crime had to be reported to the lordly authorities. In the case of violent quarrels, the authorities, while insisting on their monopoly over law and violence, never played the role of administrators of social justice; they refused to examine the relative merits of parties involved (as was done in pre-Tokugawa courts) and instead punished both parties according to status and regardless of respective innocence or guilt (kenka ryoseibai^[*] ). One could say that it was a case of martial law applied in peacetime.

For personal vendettas, official permission was needed, and private settlements functioned through a mechanism whereby a subject was temporarily entrusted with the penal authority that in principle rested only with the higher authorities. One of the legal flaws of the celebrated action by the forty-seven ronin^[*] from Ako^[*] was not that the murder of a bakufu official was a vendetta but that it was an illegal execution, permission having been neither sought nor granted. In addition, there was the question of legal definition: was it a violent quarrel (in consequence of which both parties, including Lord Kira, should have been punished rather than only Lord Asano's being ordered to commit seppuku), or was it an attack by one party only (Lord Asano, since Lord Kira had not struck back when wounded, in which case the rule of kenka ryoseibai^[*] would not apply and it would have been proper that only Lord Asano be punished).^[20]

We can summarize the structural characteristics of the juridical field of Tokugawa Japan as follows. First, its location within the social field as an integral part of the ruling (military) apparatus made for its thorough penetration by heteronomous power, making the possibility

[19] Mizubayashi Takeshi, "Kinseiteki chitsujo to kihan ishiki," in Chitsujo , Koza^[*] Nihon shiso^[*] , 3 (Tokyo Daigaku shuppan, 1983), 114. See also Haley, Authority without Power , 40: "Law enforcement by the Kamakura authorities could only be activated by outside complaint or accusation generally, and the process remained subject to the initiative and direction of the litigants."

[20] This argument is central to Tahara Tsuguo's discussion of the incident in his Ako^[*] shijurokushi-ron^[*] : Bakuhansei no seishin kozo^[*] (Yoshikawa kobunkan^[*] , 1978).

of developing an autonomous juridical field virtually impossible, this in contrast to the medieval conjuncture, and in even greater contrast to that of modern times. Second, the reach of the law was greater than that of its medieval counterpart and, arguably, even its modern counterpart. This was because (a ) the greater imbalance of power between the centers (shogun and daimyo) and their areas of control (villages and towns) reduced local autonomy, this only in comparison to medieval Japan; and (b ) the law treated as public, and hence subject to status control, many matters that were considered legally neutral and private in both pre- and post-Tokugawa times. Third, since the expansion of legislation, although the result of a heavier concentration of sociopolitical power by a military force than in medieval times, did not emanate solely from one source, the Tokugawa juridical domain was imperfectly unified, constituted as a complex network of mutually reinforcing and partially overlapping subfields.

Since this study focuses mainly on legal and juridical matters with regard to village practice, the structural and historical analysis of courts, jurisdictions, and legislative centers as they pertain to specific social formations such as cities, temples and shrines, and specific status groups need not preoccupy us here.^[21]

The Tokugawa Juridical Field Within The Field of Political Power

The undeniably strong presence of heteronomous (political) power in juridical matters predetermines the relative possibilities, findings, and strengths of formalistic and instrumentalist interpretations. The latter are particularly forceful since lordly law was foremost a continuation of war by policy, a substitution of coercive (symbolic) violence for real violence aimed at maintaining the structure of domination established by military conquest. Hence differential punishments for the same crime depending on whether the parties were rulers or ruled, and more gen-

[21] Good descriptions and analyses of these matters can be found in Henderson, "The Evolution of Tokugawa Law"; idem, Conciliation , vol. 1, chap. 4; Hiramatsu, "Tokugawa Law"; Haley, Authority without Power , chap. 3; Steenstrup, A History of Law in Japan , chap. 4; and, for the kawata, Cornell, "Caste Patron," 56-70, and Ninomiya, "Inquiry," 99-100. For a general description of the route petitions and suits took, see the introduction.

erally on whether they were of superior or inferior status in relation to one another.^[22]

Thus, even a formalistic study of the dynamics of Tokugawa law could not but expose the levels and lines of impact of the forces of domination. Such an analysis of Yoshimune's great legislative codification of the 1740s, the Kujikata osadamegaki , would reveal that many of the articles are no more than casuistic status cases, a multiple unfolding into every nook and cranny of a penal code according to the fundamental hierarchizing "imaginary" that informed the Tokugawa system.^[23]

Very concretely, a comparison with legislation a few decades earlier exposes the operation of this logic, since it shows that the range of serious crimes against status hierarchy was increased by moving up certain categories to make them subject to more severe punishment. The Kujikata osadamegaki increased the level of seriousness of certain crimes against superiors and decreased that of certain crimes against inferiors: the penalty for the murder of a former lord moved up two notches, from simple crucifixion to crucifixion preceded by exposure in a public place (a bridge in Edo); of a parent or teacher, up two notches, from gibbeting to crucifixion; of a relative of one's lord or master, one's father-in-law, uncle, aunt, elder brother, or elder sister, up four notches, from beheading to gibbeting after ambulatory exposure. But the penalty for the unintentional killing of a child, younger brother, younger sister, nephew, or niece moved down one notch, from beheading to banishment to a remote island and confiscation of the criminal's land, house, and personal effects.^[24]

As mentioned in chapter 4, a formal diachronic analysis of village codes indicates that although punishments were lessened as time went on, for example, by substituting fines for physical punishments such as

[22] See article 71 of the Kujikata osadamegaki (on punishments for killing and wounding) in Hall, "Japanese Feudal Laws Ill," 766-71 There was also a Tokugawa saying, already mentioned, that the life of one samurai was worth that of seven commoners, and another one that the life of one commoner was worth that of seven kawata.

[23] Cornelius Castoriadis, The Imaginary Institution of Society (Cambridge: MIT Press, 1987). Castoriadis uses the term imaginary to refer to a (socially) unquestioned social metaphor that functions as a template for common sense, or, to use computer language, a default category through which a society at a particular time organizes, perceives, and partly misrepresents itself.

[24] Mizubayashi, "Kinsei no ho^[*] to saiban," 163-65.

mutilation or banishment, the codes converged increasingly with lordly authority in the second half of the period, precisely when, it is generally assumed, the lords were losing their grip on local communities.^[25]

Imperfect Instrumentalism

As this late convergence suggests, village codes in the first century of Tokugawa rule were perhaps less immediately responsive to, or less in tune with, lordly laws than in the second half of the period. Thus, an unqualified instrumentalist understanding of Tokugawa law as always serving directly the interests of the superordinate powers may suffer from overinterpretation. We can identify at least four areas in which that may be the case: village codes, the interplay between village codes and lordly law, commercial law, and the emergence of legal specialists.

The village codes . We do not have in the archives today sixty thousand village codes, one for each Tokugawa village; many have been lost, many seem never to have been written down, and many were rewritten several times. Those that remain are rather short, consisting often of fewer than ten articles—much shorter than the written village laws that the lords drafted and that to a degree influenced the codification of village codes in the eighteenth century. Yet all villages were governed by norms, whether written or oral, the latter undoubtedly covering a much wider area of practice than the former but not necessarily an older stratum of practice; codification often signals not the formulation of new rules, but the recording of existing ones. It is thus very likely that most of the extant village codes, at least those recorded in the seventeenth century, pertain to pre-Tokugawa practices and thus were not consciously geared toward heteronomous lordly interests.

Peasants, however, were far from insensitive to the possibilities for manipulating intra-village power distributions by contesting village codes or using them to advantage, a fact overlooked by those who stress the autonomous character of village laws in relation to heteronomous lordly power. In Hozu village and in the whole Mino region, for instance, village codes configured relationships between (ex-samurai) titled peasants and the other peasants on a samurai model of vassalage.

The relation between lordly law and village codes . The traditional instrumentalist position has held that village codes were simply an extension

[25] Oide^[*] Yukiko, "Kinsei sonpo^[*] ," 98-110.

of lordly law, and a tool of lordly domination. This View has been challenged by a semiformalist interpretation, but by failing to problematize power relations within the village, this interpretation has come to understand village codes as unmediated expressions of the survival needs of the village as an organized social community (Kyodotai^[*] ) that was indifferent or even opposed to lordly power. Recent scholarship, such as Mizumoto's, however, has broken with (antagonistic) essentialist views of law by positing a space amenable to strategic manipulation rather than the presence or absence of a fixed barrier between the "autonomous" juridical subfield of village codes and the far larger "heteronomous" juridical subfield of lordly law.^[26]

While in general village codes did not contradict lordly law, the latter was not necessarily applied; in practice, village officials could exercise discretion in the implementation of lordly laws, especially if noncompliance could be legally camouflaged. Village officials could activate lordly power without actually implementing lordly laws by the mere threat of using them; thus obliging obedience. Thus, paradoxically, lordly law was implemented at the same time that its formal power was being manipulated by being redirected, "borrowed" as the mere threat of implementation.

Commercial law . From the beginning of the eighteenth century shogunal courts were forced to (very reluctantly) address civil suits, whose volume had increased enormously with the expansion of commerce. Civil cases (property or money suits) can be considered somewhat neutral to the ruling class's political or economic interests because they were irrelevant to the maintenance of hierarchy; their adjudication constituted, therefore, an unwelcome burden and expense. Yet in this area the rulers were forced to add to their role as rulers the role of administrators. Hence commercial law constituted a juridical subfield for which a simple instrumentalist interpretation falls short. Indeed, as Dan Fenno Henderson has argued, it is the level at which one can identify a formal development of a juridical field,^[27] propelled by its own dynamic, and where the interference of heteronomous social power was weakest.

The adjudication of violent quarrels followed the kenka ryoseibai^[*]

[26] Mizumoto, Mura shakai , chap. 6; idem, "Kogi^[*] no saiban."

[27] Henderson, Conciliation , 1:11; idem, "Introduction to the Kujikata Osadamegaki," 525.

principle; no evidence of either party was relevant, and both sides were punished, an unmitigated application of coercive force. In criminal cases the only decisive evidence was the suspect's confession; hence the use of torture, an extreme form of coercive force. In civil cases, however, attention to the relative merits of the litigants through an examination of documented evidence became important. Max Weber noted that in England "the royal power introduced the rational procedure of evidence primarily for the sake of the merchants," a development that was, therefore, "strongly influenced by structural changes in the economy."^[28]

In this regard one can draw attention to two points. First, every effort was made, even during preliminary hearings (i.e., after the judicial process had been initiated), to reach a settlement before arriving at a final verdict.^[29] This emphatic preference for conciliation on the part of the authorities testifies to their reluctance to function as judges in cases that did not affect the power of the dominant class directly. In other words, overlords used their authority to order a binding private settlement, the terms of which were to be determined by the litigants with or without a mediator. As we saw in the ostracism case that came before the attendant (chapter 4), such practice also prevailed in noncommercial disputes. Second, the form this conciliation took, often under threat of dire punishment if the law were applied to the letter—revealing the force of law as such—was as an application of the kenka ryoseibai^[*] principle, dividing the blame, although not necessarily evenly, between plaintiff and defendant to the detriment of the nonguilty. In the end both sides were guilty. Yet the application of this principle here was not directly the result of an open application of coercive force, because conciliation was achieved by the parties involved—tatemae—under the paternalistic prodding of the judge, abdicating momentarily his official position as judge to adopt the posture of a private go-between. But this was momentarily only, because the next moment he could threaten to let the case come to a much more dreaded final verdict: honne.^[30]

Ishii Ryosuke^[*] has drawn attention to one particular aspect of con-

[28] Weber, Economy and Society , 2:977.

[29] Henderson, Conciliation , 1:7, 127, 147, 150.

[30] See ibid., 128, 150, 154, and esp. 156, for attempts at reconciliation in a court case analyzed by Henderson; 149, 153-55, for instances of the use of threat in the same case. The similarities between the present-day practice of conciliation and the Tokugawa variety have been explored by Henderson in vol. 2 of Conciliation .

ciliation, namely, that the fact that it is often ordered under threat is revealing of its coercive nature. The "interrogations in both the inquisitorial procedure and in the Adversary Procedure (deiri-suji ) were handled by the same officials. Thus the thinking behind the inquisitorial procedure [where torture was an option] ... influenced the conciliatory procedure of adversary proceedings; and it was held that in any event, a private settlement cannot be established without basing it on the free will of the parties. Consequently, 'provisional imprisonment' was used to coerce it."^[31]

The emergence of legal specialists . The existence of a corps of legal specialists is necessary for an autonomous juridical field. Several developments during the Tokugawa period led in that direction. Starting as early as the last decades of the seventeenth century, the recruitment of investigative and recording officers for the shogunal court was narrowed to the personnel from one office within the shogunal bureaucracy; these positions ultimately became hereditary, shared among a few families.^[32] Their accumulated knowledge of precedent furthered consistency in verdicts, for practice turned these officers into experts, and their opinions became authoritative not only regarding the results of the investigations they conducted but also regarding the penalties; they functioned increasingly as judges. Yoshimune tapped into this experience when he started to codify standards for judgment in shogunal courts, which had a formalizing impact in the daimyo courts as well.^[33]

Since Yoshimune's Kujikata osadamegaki was intended only for internal use in bakufu courts and hence was not publicized, knowledge of its codes filtered out to commoners indirectly through court decisions, slowing the regulatory effect the predictability of justicial outcomes might have on social behavior. Yet regularity was enhanced by two practices that limited arbitrariness: internal queries by intendants or commissioners were sent to higher authorities, and commoners began to make use of legal consultants (suit inns).

When bakufu intendants or commissioners had to pass judgment on difficult cases, or when the proposed penalty exceeded their penal

[31] Ishii, review of Conciliation , 223.

[32] Henderson, Conciliation , 1:66-67, 69, 139; Hiramatsu, "Tokugawa Law," 10-11.

[33] Henderson, "Introduction to the Kujikata Osadamegaki," 506; Hiramatsu, "Tokugawa Law," 20-21.

powers, they queried higher-ups, which ultimately meant the members of the Senior Council. The senior councilors, in consequence, gathered together all the serious cases from the bakufu courts, examined the proposed sentences to determine whether precedents were applied consistently, and sometimes consulted further with the Tribunal (Hyojosho^[*] ), which functioned to some extent to standardize the verdicts of all courts throughout the country.^[34] Such formalization put constraints, however limited, on arbitrary judgments.

Igeta Ryoji^[*] analyzes a number of queries regarding penalties for kawata who had married commoners and, in addition, often helped channel other kawata as illegal labor into commoner households. In the latter case, the Tribunal almost always lowered the proposed sentences.^[35] However, according to Igeta, the verdicts alone give a slanted picture of juridical practice for two reasons. First, in the case of the kawata in the Kinai region, which was beyond Danzaemon's jurisdiction, decisions on penalties and their execution were entrusted to the elders of the kawata community from where the offender came; since they produced no documentary evidence, we do not know whether these sentences were harsher than those suggested by the bakufu Tribunal. Second, the juridical process included provisional incarceration of suspects until a verdict was reached. A sizable percentage of the suspects died in prison, an understandable deterrent that added considerable coercive power to the "power of the law" as such. Among those who died during pre-sentencing detainment were 16 of 102 kawata in the Clog Thongs Riot over a span of two years; 6 of 12 in the Okayama Riot over three years; and 8 of 55 in a mere two months after the "eta hunts" in Kyoto in 1831.^[36]

In the final seventy years or so of the Tokugawa period commoner specialists in legal matters who were sufficiently knowledgeable in complicated Tokugawa legal procedures and in substantive law introduced their skill and knowledge to the market. Litigants came to avail themselves of the business of these consultants at their kujiyado (suit inns) near the shogunal courts in Edo. The litigant in the ostracism case analyzed in chapter 4 seems to have successfully relied on these spe-

[34] Hiramatsu, Edo no tsumi to batsu , 46.

[35] Igeta, "Kon'in sabetsu," 9.

[36] For the general statement and the figures for 1831, see ibid., 19; for the other figures, see chapter 5, above.

cialists for drafting his suit. The existence of these private legal assistants testifies to the advanced degree of formalization reached in at least one sector of the juridical field, although their function was limited to cases coming before the shogunal court. The authorities, although concerned about abuses,^[37] understood the benefits commoner assistants offered for the smooth functioning of the courts and enrolled their services by sanctioning their activity with a license.^[38]

Levels of Formalism

The degree of legal formalization and codification is one indicator of the juridical field's degree of autonomy. When discussing legal formalization, it is useful to distinguish between levels of formalism. An initial formalism, to which great attention was paid in Tokugawa Japan (as in China), relates to the recognition that cases should be grouped and filed under specific categories (water and border disputes, money suits, etc.).^[39] This first procedural decision was to determine the nature of a case in order to channel it to the appropriate judicial authorities and to apply to it the appropriate law. As Henderson remarks, this could not but also reflect "the relative substantive value attached to ... [the] underlying claims [of each type of case]."^[40]

More fundamentally, one could say that this is the point where a dispute or incident gets converted into legal matter, the creative power of legal naming reveals itself, and law has its field-specific effect on social reality. The decision to allow some events to become legal matter and to deny this to others creates a quasi-ontological divide in social reality;^[41] and the effect is not always to enhance the importance of the former over the latter. Thus, the stipulation that murders and border disputes had to be brought to court certainly turned such incidents into public events and introduced a new element of power into them. An-

[37] Henderson, Conciliation , 1:145 n. 59.

[38] Ibid., 167-68. The status of the suit inns contrasts sharply with the illegal status of pettifoggers in China (see Melissa Macauley, "Civil and Uncivil Disputes in Southeast Coastal China, 1723-1820," in Civil Law in Ch'ing and Republican China , ed. Kathryn Bernhardt and Philip C.C. Huang [Stanford: Stanford University Press, 1994], 85-121).

[39] See Henderson, Conciliation , vol. 1, chap. 5, for the main categories of "civil suits."

[40] Ibid., 102.

[41] Bourdieu, "Force of Law," 837-40, 846.

other example is the prosecution, started in 1773, of mixed marriages between kawata and commoners as "adultery," resulting in status demotion from commoner to hinin, whereas such marriages had been legally neutral prior to that date.^[42] That courts refused to consider cases initiated by inferiors against their superiors (lower samurai against higher samurai, sons and daughters against their fathers—Osadamegaki , art. 65), however, did not mean that such "authority-related" cases were deemed less weighty than, say, border disputes; rather it signaled that a certain reality, namely, authority, was above the law. After all, "unreason does not prevail over reason; reason not over law; law not over authority; authority not over Heaven."^[43]

A second type of formalism concerns the bureaucratic procedures whereby an incident, once transformed into a case, must be submitted in proper form to appear in court. This is the all-important area of legal language and format, which became quite intricate in Tokugawa Japan, although, and in part because, it was by no means made uniform. The procedures themselves could be lengthy and complex. Dan Henderson's detailed analysis of a money suit by a villager reveals that a settlement (not a verdict) was reached after four months, after attempts to settle the suit at the village level.^[44] First the village headman's endorsement was secured, then the local overlord's;^[45] subsequently misphrasings underwent correction, the petition had to be endorsed by the court, and the suit initiated, and after twelve postponements, five stalemates, one hearing before the commissioner, and six hearings before the recording officer, only a settlement was reached. In another case, involving eight commissioners, over the establishment of a new market, Henderson

[42] Igeta, "Kon'in sabetsu," 10.

[43] Mizubayashi, "Kinsei no ho^[*] to kokusei kenkyu^[*] josetsu," Kokka gakkai zasshi 90, nos. 1-2 (1977): 6 ff.; for a different interpretation of this dictum, critical of Mizubayashi's, see Nanba, "Hyakushö ikki no ho-ishiki^[*] ," 47-62. The "reason does not prevail over law" part of the dictum was incorporated in the third article of the Warrior Code (Bukke s ho hatto ) of 1615 (NST 27:454; for the English translation, see Lu, Sources , 1:201-3).

[44] Henderson, Conciliation , vol. 1, chap. 6.

[45] Ishii Ryosuke^[*] (review of Conciliation , 216) questions Henderson's assertion that the headman's approval was needed, which Henderson also argues on p. 129 of his book. The headman, however, had to endorse with an accompanying letter any suit by a villager. As we saw in the Kasuga village case (chapter 3), it was considered an abuse of authority by the headman to forward such a case without his endorsement, which meant that the case would be immediately rejected by the intendant.

estimates that plaintiffs from three villages located the distance of a five-day trip from Edo must have traveled some thirteen hundred miles before obtaining a (negative) final verdict.

Similar documents differed from one another depending on whether they recorded the testimony of a commoner (kuchigaki ) or a warrior or priest (kojosho^[*] ) or an offense by the former (called kyokuji ) or the latter (otsudo ), or depending on the commission involved (the Temple and Shrine Commission called complaints not meyasu but sojo^[*] ).^[46]

The complexity of the above two types of formalism created a special world having a very specific effect on any commoner who entered it. A veritable arsenal of symbolic devices was marshaled to turn him or her into more of a subject than he or she was in daily life. First of all, one could not enter this world simply on one's own volition. Endorsements from the authorities (headman and overlord) were needed, and the language of that specialized world was formulaic and determined in an authoritative way, severely restricting spontaneous, quotidian expressions. Its tenor was one of supplication and submission, osorenagara , or "[submitted] with fear and trembling," being the ubiquitous formula.^[47] The effect of distance from an accustomed world increased the subject's isolation and vulnerability, pure subject confronting pure authority. The distance was reinforced by the layout of the court (called shirazu , "white gravel"), where commoners literally had to grovel in the gravel one level below the officials, who were seated on a raised wooden or tatami floor.^[48] In the late Tokugawa period, when peasants and kawata appeared in court together, the gravel (or a place located three shaku below the peasants) was reserved for kawata, while peasants squatted on straw sacks.

A third type of formalism concerns the predictability of the judicial reasoning that leads to legal conclusion. The higher the degree of formalism and the clearer and more publicly spelled out the principles applied or weight given to precedent, the more circumscribed the realm of arbitrariness or discretion of the judgments will be and the greater the likelihood that political power will be bound by law.

Yoshimune's Kujikata osadamegaki (1740s) constituted the apex of

[46] For the two cases, see Henderson, Conciliation , 1:137, 161-62, 166; for the terminology, 166 n. 98, 140 n. 42; 165 n. 95.

[47] Ibid., 151-52.

[48] Ibid., 145-46.

Plate 8.
Court at an Intendant's Residence. Hanging from the wall at the left
are instruments of torture used to obtain confessions of guilt in criminal cases.
From Ando^[*] Hiroshi, ed., Tokugawa bakufu kenchi yoryaku^[*] (1965). Reprinted
with permission from Seiabo^[*] Publishing Company.

legal systematization during the Tokugawa period. Yet the degree of formalization in the third sense was very limited because it was not a publicized "code" but a manual to which access was restricted to shogunal officers of justice, especially with regard to determining penalties. This meant that (1) its principles were intended only for shogunal courts, and not for application in village or domainal justice; (2) it was "secret" knowledge, not to be divulged in the commoner world; and (3) its stipulations were no more than suggestive guidelines for judges that were partly based on precedent but did not limit their penal powers.

The net effect (likely purpose) of the restricted nature of this formalization was the preservation of a discretionary leeway for judicial officers, which meant, of course, the preservation of the power of the warrior class. Nevertheless, insofar as investigative and recording officers developed a "legal" habitus, however weak, simply by acquaintance with

precedent—knowledge that found its way into the weighty responses of the Senior Council or the Tribunal to queries from below—formalization was a legal, if limited reality.

Practitioners of deconstruction, with their predilection for discursive moments of undecidability, have argued that the one-time arbitrariness at the origins of laws, meant to eliminate future arbitrary coercive violence by substituting the rules of law, is in fact reactivated when decisions are made concerning the (degree of) applicability of the laws in each case that comes before a judge. Typically, however, they have nothing to say about interests orienting the judge through this moment of undecidability toward closure. Bourdieu's solution to this problem is to be found in his notion of the social construction of the legal habitus.^[49]

Thus, courts were foremost an instrument of the rulers to preserve order, ensuring a slanted distribution of sociopolitical power. Hence the emphasis on "settling" disputes by restoring peace rather than righting wrongs. Since there was no break between heteronomous power and the juridical field, "truth" and "justice" accordingly were quite openly secondary considerations.

Expansion of The Juridical Domain

The extension of the legislative and juridical reach into ever more areas of daily life through prohibitions of all sorts pertaining to both production and consumption, affected all commoners. People thereby somehow became "officials," as Suzuki Shosan^[*] (1579-1655) and Ogyu^[*] Sorai (1666-1724) put it;^[50] they were forced to alter their comportment and lifestyle to fit their assigned status, which was related to their ability to contribute to production (tribute) in support of "the realm" (the rulers). This affected virtually all items of material and symbolic culture. The logic propelling this legislation of the shogun and daimyo was one of gradual and reactive comprehensiveness, covering more and more items, in an effort to keep up with cultural developments that came to be perceived as potentially challenging to the formal status order.

[49] See Jacques Derrida, "Force of Law: The 'Mystical Foundation of Authority,'" in Deconstruction and the Possibility of Justice , ed. David Gray Carlson, Drucilla Cornell, and Michel Rosenfeld (New York: Routledge, Chapman and Hall, 1992), 13-14, 23-24. Note the similarity between Derrida's title and Bourdieu's "The Force of Law."

[50] Ooms, Tokugawa Ideology , 131.

Regulations concerning social practice included prohibitions against the production of luxury items such as tobacco and certain publications, restrictions on consumption of certain items, such as rice, or the use of palanquins and horses; dress codes specifying the allowed number of layers of cloth, the cut, and the quality of material (cotton or silk) in a garment; architectural specifications for peasants regarding the size and/or number of their dwellings, whether or not they could have gates and what kind, whether or not they could have ceilings, and so on; formalized language necessary for forms of address and forms of documents (such as petitions); restrictions and prohibitions on forms of entertainment (kabuki, gambling, Western playing cards); the outlawing of certain religious sects and prohibitions against "new teachings" or the improper granting of posthumous names; and control of the movement of people traveling, making pilgrimages, or changing domicile.^[51]

Hierarchy seems to be present in all societies at all levels as the result of an informing ideological principle, the effect of the exercise of power, or the combined effect of both; undeniably, Tokugawa Japan presents us with an extreme example. In this society hierarchy was, to borrow Castoriadis's term, the "central social imaginary," based consciously or not on the paradigm of the army. The military model, one could say, provided a far more refined hierarchizing operator than the five relationships of Confucian teachings could ever have devised.^[52] Obviously, this does not mean that practice followed the law or that laws never went too far in hierarchizing penalties. Laws were often broken, sometimes not enforced, occasionally rescinded. This did not detract from the pervasive formative force of hierarchizing operators, which were

[51] It would be nearly impossible to give even elementary bibliographical references for this vast area. Suffice it to refer to two unusual items on this list. For the prohibition against Western playing cards during the Genroku period, which was later rescinded, see NRT 3:151; for the 1831 prohibition against using improper posthumous names for the deceased, showing disregard for their official status, see Narusawa, "Mikaiho^[*] buraku no kaimyo^[*] ," 170-71.

[52] In this context, it is perhaps worth noting that the comparative sociologist Stanislav Andreski, in his search for a qualifier for a typically feudal society, a "type of society where a stratum of warriors dominates unarmed masses," decided to call it "bookayan, and the dominating warrior stratum a bookay," deriving these terms "from buke—the Japanese word for military nobility" (see his Military Organization and Society [Berkeley: University of California Press, 1971], 144).

sufficiently powerful to permanently mark a great number of salient features of Tokugawa society and culture.

The various grades of banishment from Edo, introduced in the Kujikata osadamegaki in 1742, differentiated between major, medium, and minor banishment from Edo and gradations of three, five, seven, ten, or twenty miles (ri), although they were virtually nonexistent prior to 1742. An examination of 974 verdicts handed down between 1657 and 1699 reveals that the most common distance of banishment from Edo was ten miles. Thus in 1745, only three years after the introduction of these multiple gradations, previous practice was reinstated by decree, declaring that henceforth the distance of banishment from Edo for commoners would always be ten miles.^[53]

The net overall social effect of such an imaginary was the conversion of an extensive field of (private) cultural practice into an explicit (public) politically informed practice. Legislation and the accompanying juridical pronouncements have a transformative power, an "illocutionary" force that by naming reality in legislative utterance or juridical verdict thereby creates, reinforces, or transforms it.^[54] In this way, discursively unarticulated (dispersed) "elements" of private cultural practice whose meaning was previously heterogeneous, open-ended, and unstable are by edict transfigured into articulated "moments" of a public space, their meaning now homogeneous, closed, and predictable.^[55] This, at least, one may perceive as having been the intention behind many of the cultural regulations that multiplied during the Tokugawa period, although no power could ever achieve signifying closure that would prevent the generation of new signifieds, a point to which we shall return.

The modality of legal expansion in the Tokugawa period is homologous to that of the expansion of knowledge in the Sung Confucian tradition. Both reveal an unlimited capacity to recreate (through legislation) or rediscover (through knowledge) again and again in ever new sites, social hierarchy in the former case, natural hierarchy in the latter.^[56] It can be argued, however, that legislative or juridical practice

[53] Tsukada Takashi, "Kinsei no keibatsu," 96-97.

[54] See n. 16, above.

[55] For the distinction between politically free-floating "elements" and politically mobilized and structured "moments," see Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy (London: Verso Press, 1985), chap. 3, esp. 105-6, 127-28.

[56] Ooms, Tokugawa Ideology , 95, 240-41.

was more powerful than teachable doctrine because law restructures the context and thereby reconstitutes the nature of social practice, including the production of representations specific to that practice, that is to say, social knowledge.

It goes without saying that any power to fashion sociocultural practices and representations, a power to create society through "vision and division,"^[57] must be backed by the necessary weight of coercive force if it is to secure a sufficient degree of implementation. On the one hand, the power of law, in its thematizing and unifying effect of social vision and division, extends well beyond the range of social practice as merely regulated by law enforcement. The comprehensiveness and the thematic consistency of Tokugawa law more than made up for an alleged "shallowness" (Henderson)^[58] because it gave public meaning to so much of daily practice. The purpose of this strategy was not to provide a supplement to private meaning but to erase it and produce a formal substitute. Dress codes were not an addition to fashion, but were supposed to replace sartorial expressions of individual idiosyncrasy, taste, or wealth, of privately imagined selves, with the markings of a hierarchical position in the body politic, expressions of publicly assigned selves. Yet semiotic reality is such that signifiers such as clothing always produce potentially ambivalent or polysemic signifieds: what the authorities produced, intentions notwithstanding, were not substitutes but supplements of meaning.

This ruling strategy, in imposing a single signified (hierarchy) on a large number of heterogeneous signifiers, established an authoritative orientation for the production of cultural meaning. In other words, the hierarchizing principle expanded beyond juridical matters through the initiative of nonrulers, which converted more and more heterogeneous signifieds and made them converge into the one signified of the central imaginary. For example, as mentioned earlier, there was no law fixing the price of samurai human waste in the market of fertilizers higher than that of commoners, yet it was the case that the exchange value of human excrement was not determined "rationally" by the market or by

[57] Bourdieu, "Force of Law," 838.

[58] Henderson, speaking specifically about shogunal law rather than Tokugawa law in general, says, "The coverage of Shogunate law was quite shallow, both in terms of territory controlled directly and persons affected directly" (Conciliation 1:62; see also 100).

its use value but was measured according to the status hierarchy of its producers: samurai night soil fetched a higher price than that of commoners.^[59] Similarly, the production of etiquette booklets as guidelines for proper hierarchical human interaction indicates the necessity and aspiration to conform to one social model, that of the samurai.^[60]

The complicity between subjects and authorities is also illustrated by the readiness of some parents to redefine unfilial behavior as the authorities had done, from ethically reprobate behavior to a legally punishable crime. In the second half of the seventeenth century a number of parents requested that their unfilial sons be temporarily jailed, and in the eighteenth century parents often asked that they be temporarily committed to a penal colony or stockade.^[61] In Kodaira village, for example, as we saw, commoners stretched the limits of hierarchizing status further than the authorities intended; statuses could be split almost endlessly to simultaneously accommodate efforts aimed at social mobility while safeguarding the power elite against such ambitions. Competing proximate occupational groups often went to court hoping to have the authorities settle conflicts over territory or hierarchy to their advantage. Status thus became a weapon and a prize, for example, for the carpenters from a district in Harima who requested clarification on which of their subcategories were polluted; in disputes in Azumi district between Ebisu, lion dancers, and kawata; in suits whereby hunters and Kyoto's dyers succeeded in dissociating themselves from the kawata—all examples of commoners seeking advantage within the rules of the rulers' game of social ordering, which by publicly, legally sanctioning groups thereby created status positions for them.^[62]

To a large extent, the net social effect of the incorporation of legal constraint into practice was the naturalization of social practice thus constructed. In the hierarchical structure that was sanctioned, recreated, and expanded in this way, each status position, because locally specific

[59] Walthall, "Village Networks," 295.

[60] Eiko Ikegami, "Disciplining the Japanese: The Reconstruction of Social Control in Tokugawa Japan" (Ph.D. diss., Harvard University, 1989).

[61] For the jailing, see Tsukada Takashi, "Kinsei no keibatsu," 100-101; for the penal colony (the stockade, or yoseba ) of Ishikawajima, an island in the lower Sumida River in Edo, see Hiramatsu Yoshiro^[*] , "History of Penal Institutions: Japan," Law in Japan 6 (1973): 11, 15.

[62] For further examples, see Asao, "Kinsei no mibun," 35, 37-38; and Tsukada Takashi, "Kasomin^[*] no sekai."

and immediately differential only with regard to the positions immediately above and below it, narrowly limited what was possible or impossible, forming a localized, circumscribed habitus. Limited aspirations precluded ambitions challenging superordinate powers more effectively. The farther removed the status in question was from super-ordinate powers, the more effectively limited aspirations precluded ambitions challenging those powers. We have seen a number of "emancipation suits" that illustrate this kind of mechanism.

Structurally, one can say that a tenant peasant (tribute producer ) might aspire to succeed to becoming a tribute-paying peasant with land, but not a village headman, at least not immediately. And he feared becoming a hinin or registered beggar. A landowning peasant might covet the post of headman or membership in the shrine association (miyaza) or "nominal" samurai privileges (wearing one sword and using a surname) but not full membership (not even in the lowest strata) in the ruling class. The peasant's greatest fear, of course, would be to end up landless. A commoner's daughter might hope to serve in a samurai household or to marry into a lower-class samurai family, but she also dreaded being handed over to such a family as a virtual slave as part of the punishment for a crime committed by her father or husband.^[63]

Moreover, in regard to a regime where authorities at all levels— shogun, daimyo, as well as village elite—invested much symbolic power in explicitly shaping cultural and social practices, and where that effort was met halfway by the colluding practices of the dominated (their aspirations revealed by suits and petitions), the question whether legitimacy was an internal matter of acceptance or consent or an external matter of coercive power and resistance becomes difficult to answer. Indeed, it may be irrelevant if one considers the objective relations in this conjuncture of legal imposition from above and practical complicity from below.^[64]

This publicly created (political) equivalence of all signs—through their restricted single signified, the division between rulers and ruled, and

[63] On legal stipulations concerning, and real cases of, wives, daughters, and sometimes sons of criminal commoners given as "slaves (dohi )" to samurai families, see Tsukada Takashi, "Kinsei no keibatsu," 101-2.

[64] Concerning this line of argument, see Bourdieu, "Force of Law," 841, 844. On the effects of universalizing values promoted by juridical formulations, discussed in the following paragraph, see ibid., 838, 845; and idem, Ce que parler , 72-73.

its numerous refractions and reflections in "civil society" as the separation into superior and inferior—expanded the spheres of domination. At the same time, however, it also increased the system's vulnerability, because it multiplied pointillistically the sites where behavior could be interpreted as illegal or rebellious behavior. If etiquette "manages to extort what is essential while seeming to demand the insignificant [and] concessions of politeness always contain political concessions,"^[65] by the same token, the essential can be denied while refusing the insignificant. Thus, within this setting, cultural practices could as easily be redefined as deviant illegal behavior because of the implied rejection of the universally signified. It suffices to recall the geta incident in Hozu village (chapter 4), in which both sides held precisely opposing views regarding what was essential and what was insignificant in the peasants' disregard for the prohibition against wearing wooden clogs. Hence almost anything could become subversive through the creation of a new signified or the restoring of a suppressed one for any publicly marked cultural signifier.

To suppress the social tumult caused by the sexual and erotic commotion surrounding the early kabuki theater, the bakufu tried to eliminate a signified (provocative sexuality) by doing away with its signifier (female actors), assuming that there was only one possible signifier (females) for that signified, when it banned women actors from the stage in 1612. Yet, since gendered sexuality is not necessarily linked to sex, female impersonators (onnagata ) circumvented the effect of the ban with clamorous success. The bakufu then thought that it was striking at the heart of erotic signification when it required, in 1652, that all actors shave their forelocks, which at first made them look, in the eyes of one contemporary, like "cats with their ears cut off."^[66] The actors, however, re-created erotic allure by wearing scarfs, caps or even wigs. By legislating political values into cultural practice, the bakufu multiplied sites for flaunting the law and displaying contempt for authority, yet infringements of cultural prescription constituted no ultimate threat to the order of domination.

To the extent that it was accepted that behind Tokugawa norms lay a norm of norms, namely, the natural order portrayed by Confucian

[65] Bourdieu, Logic of Practice , 69.

[66] 66. My interpretation is based on data found in Donald H. Shively, "Bakufu versus Kabuki ," in Hall and Jansen, Studies , 236-39.

teachings or the divine order taught by Shinto,^[67] the bakufu was safe from the critique implied in cultural practice's deviation from those norms. Of course, the crucial question is to what extent this "to the extent that" is applicable, especially since a "natural" or "divine" order is but a description elucidating a world-view. As Lyotard has pointed out, description and prescription (norm) are two intrinsically different "language games" that can be engaged only sequentially by shifting from one game to the other, without description's ever, strictly speaking, by itself yielding prescriptive force or providing its ground, because the two are incommensurable. Since prescription contains its raison d'être and authority within itself, its oblique reliance on description makes it, at least in principle, vulnerable to questioning. This postmodern viewpoint is not different from Derrida's deconstructionist denial of any foundation for authority; see his qualification of it, mentioned earlier, as "mystical." Such interpretations are generated in part by the linguistic theory of performatives. Bourdieu has incorporated this view, since he writes of "performative utterances" as "magical acts which succeed because they have the power to make themselves universally recognized." On the other hand, he speaks elsewhere of the power of a "norm of norms."^[68]

Moreover, insofar as prevailing linguistic usage was an embodied expression of order in a practical, unreflective, and "natural" way, in contrast to the conceptual, reflective, and disputable Way of teachings, language constituted an additional rampart of defense against ideological challenge. As Anne Walthall's recent research indicates, women could step beyond the bonds of propriety and speak out politically on their concerns; protesters could use "vulgar" language to address the authorities in the heat of protest, attempting to force the addressees to their own level.^[69] Yet, these attempts by commoners to submit the

[67] Ooms, Tokugawa Ideology , 250-62, 281-86; idem, "Yamazaki Ansai no 'Kamiyo no maki' ni okeru kaishakugaku—tenkeiteki ideorogii-keitai to shire," Shiso^[*] , no. 766 (1988): 15-18.

[68] Jean-François Lyotard, Just Gaming (Minneapolis: University of Minnesota Press, 1985), 45, 52-54, 59, 99; Bourdieu, "Force of Law," 838.

[69] Anne Walthall, "Representations of Women in the History of Japanese Peasant Uprisings" (paper read at the Western Conference of the Association of Asian Studies, Long Beach, Calif., October 1989); idem, "Edo Riots" (paper read at the Southern California Japanese Seminar, UCLA, December 8, 1989).

authorities to their own rules of communication and signification by disrespectfully rejecting the order of respect and power were doomed to failure not only because such attempts were sporadic and limited or gambled against overwhelming odds but (perhaps mainly) because the very modalities of reversal or trespassing were dictated and controlled by the field of power as it was structured by the authorities. In other words, the same rules dictating the maintenance of the field of social forces also informed the shape of attempts to reorder it. Women were socially stigmatized by such behavior as "beyond the pale" or as behaving "like men," that is, behaving "unnaturally." Paradoxically, hierarchy was reaffirmed through acts of denial that were rejected as socially unacceptable.

Only critiques that took as their target the historically contingent unequal distributions of power or the malleability of the social imaginary of hierarchy (informing legal or natural representation) escaped the stigmatizing hold of hierarchy, because such critiques unmasked and exposed the misrecognized interested power behind ideology. The first attempt of Kodaira's kakae peasants to do away with the patron system and the demand by Hozu's small peasants that the titled peasants of the gomyo^[*] stop treating them as vassals partake of the nature of a practical critique. Senshu^[*] Fujiatsu provided a succinct but radical critique of the status system, which he singled out as the sole cause of the kawata's plight. At the level of discourse, a student of the famous Confucian scholar Sato^[*] Naokata (1650-1719) recorded his teacher's remark that Hideyoshi and Ieyasu were like two brigands who took what did not belong to them by killing others.^[70] In the writings of Kamo Mabuchi (1697-1769), the renowned nativist scholar (kokugakusha ) patronized by Yoshimune's son Tayasu Munetake, one can find a similar sentiment hidden in a text attacking the idea of religious retribution:

In former times,... everyone was waging war with everyone else and killing people. Those who killed nobody then is today just a nobody [literally, "a commoner"]. But if one killed a few, one got to be called "bannerman"; and a few more, "daimyo"; and even more, "super daimyo of a whole province." However, he who killed an exorbitant number became the most highly regarded person [shogun] and flourishes gen-

[70] Sato^[*] Naokata, "Sato^[*] Naokata sensei setsuwa kikigaki: 5-hen unzoroku^[*] , maki 2," Mukyukai^[*] Collection, Tokyo, 30b.

eration after generation. Where is retribution in all this? We see that it comes to the same whether one kills men or insects.^[71]

Ando^[*] Shoeki^[*] (1703?-62) is well known for his full-scale attack on the principle of hierarchy itself:

From Fu Hsi to Confucius, there are eleven men called sages. They all violated the true way of nature. Their desire to rob the world and the state have plunged the world into war....It is indeed lamentable that the sages, being ignorant of nature, established private laws ... beginning with Fu Hsi, ... the Yellow Emperor, ... the Duke of Chou ... and all the sages, saints, and Buddhas down the generations ... all the scholars ... including Hayashi Razan and Sorai, were nontillers and violated the way of heaven by robbing the common people who engage in direct cultivation. They have gluttonously devoured the people's surplus grain ... they distinguish between high and low, and proclaiming this to be the law, they claim to possess princely characters and place themselves above others ... teachings that are based on separating everything into two [correspond to the] world of law, [of gluttonous noncultivation]."^[72]

Yet it is significant that none of these critiques were public statements. A later reader of Naokata's remark, jotted down by a disciple, wrote in the margin, "This ought to be erased." Mabuchi's critique was published only after his death, and Ando Shoeki's^[*] writings were made public only in the Meiji period, as was Fujiatsu's political essay. Tokugawa censorship, implicit or legislated, had the power to control public discourse that was critical of the social imaginary; here the force of law was effective.^[73]

Conclusion

What are we to make of the development of the vast juridical domain in Tokugawa Japan? A structuralist perspective will almost inevitably lead to an instrumentalist conclusion of the function of law; a strictly modern perspective would question the significance of the Tokugawa field

[71] Kamo Mabuchi, Kokuiko^[*] , in Kinsei Shintoron^[*] ; zenki kokugaku , Nihon shiso^[*] takei, 39 (Iwanami shoten, 1972), 388-89.

[72] Ando^[*] Shoeki^[*] , quoted in Maruyama, Studies , 254-55, 258, 260.

[73] Jacques Joly would disagree with my attribution of critical importance to Ando^[*] Shoeki's^[*] writings. See his "L'Idée de shizen chez Ando^[*] Shoeki^[*] " (Diss., Université de Paris VII, Unité Asie Orientale, 1991), and idem, "Spontanéité et nature: Le cas d'Ando^[*] Shoeki^[*] . Comparatisme et récupération," Revue Philosophique de Louvain 92, no. 4 (1994): 546-69.

of law because of the lack of even a minimal relative autonomy; and positivists would be negativists, pointing out the great discrepancy between the number of laws on the books and the questionable level of enforcement. By focusing, following Bourdieu, on "world-making" and "social consecrating" effects of the symbolic power of law, however, we may appreciate in a new way the importance of the creation and growth of a Tokugawa juridical field.

In this regard, James White, in reopening the old question whether and in what sense the Tokugawa regime constituted an absolute state, has made a useful distinction between actual (state) development or growth and capacity. He posits that the "central assertion of a claim to such [legitimate] control [of coercive resources] ... which either is not widely questioned or is actively confirmed by significant political actors constitutes state growth, even if de facto realization [i.e., capacity] of the claim takes some time and even if the claim is effectively institutionalized for less than the lifetime of the regime in question. Such claims, even if unexploited, are the stuff of which modern nation-states are made."^[74] He argues that "centralization and state development continued" in Tokugawa Japan, although "state capacities deteriorated over time."^[75] White's assessment can be read as a positive evaluation of the symbolic importance of Tokugawa law.

The claim, tatemae, to legitimate control of coercive resources, whether violent or symbolic, by the superordinate powers was never widely or publicly questioned in Tokugawa Japan. This does not mean that the situation was one of an authoritarian regime in supreme control of its subjects. In practice, this claim did not translate into a direct monopoly on the exercise of authority by the warrior rulers. Many commoners were "subcontracted," that is licensed, delegated, or simply allowed to oversee the maintenance of law and order. Positions of authority below that of the intendants—those of their assistants, village group headmen, village headmen, village officials, in the early period even including a number of intendants themselves—were usually filled by coopted prominent local bosses, who were often economically better-off than their dependents but always buttressed by relatively ele-

[74] White, "State Growth," 9.

[75] Ibid., 11. Philip Brown makes extensive interpretive use of White's categories for state development and state capacities in his Central Authority , 12, 25-26, 231 ff.

vated status and concomitant privilege. Although the rulers were warriors, they delegated to others even the ultimate use of violence, the killing of life (when no valor or honor was involved): hunters were licensed for "killing life," and kawata were called upon to take part in armed confrontations with peasants and to execute criminals.^[76]

Similarly, laws and regulations often incorporated existing commoner practices , such as ways of locally adjusting individual tribute contributions by households when villages were affected internally and unevenly by partial crop failures; crime voting and banishment (if reported at least after the fact) in the realm of penal justice; the proliferation of status distinctions among commoners. Thus the rulers had to compromise not only with local elites but with their practice as well. World-making by the rulers often followed the contours of the world commoners had already made, admittedly in the process consecrating that world.

Non-elite, common commoners had little choice but to play the social game by the rules set for them by their immediate and distant superiors. Both levels of authorities were not merely concerned with maintaining law and order; they were obsessed with it and extremely sensitive to any potential disruption of the peace. This obsession may explain the martial-law solution of punishing both parties in violent quarrels and its extenuated form as a propensity to spread guilt to both sides in conciliation settlements and the practice of nipping occasions for private vendettas in the bud by producing perpetrators of theft or arson through the ballot box. Nevertheless, commoners, undeterred by such practices, which restored order but failed to satisfy their demands for justice, forced the authorities to spend far more time and energy than they wished responding to petitions and lawsuits; because these practices were officially discouraged, those who initiated them were stigmatized as troublemakers.^[77] The presumption by all subjects, including the kawata, that they had a "right" to petition or sue was perhaps a result (unintended by the authorities) of the fact that, unlike in pre-Tokugawa times, everyone was now recorded in the population registers and thus identified as a subject with public duties.

Local elites and common commoners, by making the system work to

[76] The need of a license for hunting ("the killing of life") is mentioned in village laws; see art. 20 in appendix 3.

[77] See arts. 16 and 54 in appendix 3.

their own advantage as best as they could (often in opposite directions), thus contributed to widening the scope of the warriors' role in society beyond what they originally intended. Law, in its individual use in petitions and suits, must thus be seen as something more than a pure instrument of domination, although structurally there is no denying that it was predominantly instrumentalist.