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turies, were partially superseded by the military provincial laws of the sixteenth-century daimyo, all of which, in turn, were replaced by Tokugawa legislation.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