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6 The Tokugawa regime (1603–1867) was a transcendental administrative state in which superiors issued orders or delegated power to inferiors; the outstanding trait of this political system was a lack of legal redress against authority.1 A long peace and commercial development, however, stimulated the emergence of two essentials of positive law: decrees (authority) and precedents (regularity).2 A primary concern of the growing body of positive law was to reenforce the regime’s status regulations by a harsh criminal code. In 1742 the Kujikata osadamegaki assembled important precedents and statutes in a two-volume code; book 1 was mainly administrative orders, and book 2 was mainly criminal regulations.3 Concomitant with the expansion of positive law was the expansion of judicial machinery for dispute settlement. “Judges” began as administrative officials, but by the time of the two-volume code, “the outlines of a purely judicial organization had begun to appear.”4 Moreover, during the Tokugawa era, the ideal of a transcendental judge who offers objective judgment took root among the people. This ideal judge is personified by Òoka Echizen-no-kami (Òoka Tadasuke), whose official life stimulated many trial legends that circulate until today. Dan Henderson notes that “the strong popular admiration in Japan for this basic equitable type of justice called Òoka sai-ban . . . is an important part of the jural tradition.”5 Òoka Tadasuke was appointed to the position of Edo city magistrate in 1717 by Shogun Yoshimune, who launched an ambitious reform program to reverse a decline in government finances. Together with other officials Òoka attempted to create an impartial legal system: restrictions were imposed on the official use of torture; judicial procedures were circulated to officials; punishments were reduced.6 These legal reforms and others had a profound impact on society. Stories involving the law and above all Yoshimune’s chief legal adviser, Òoka Tadasuke, were still circulating Chapter 1 Criminal Justice System among the common people long after the Tokugawa government itself had disappeared.7 In stories from the volume Cases Handled by Magistrate Òoka (Òoka seidan), written for the common people in the eighteenth century by unknown authors, readers see an illustration of a fair and incorruptible official who never fails to distinguish between evil and good and who dispenses equitable justice.8 There is evidence that peasants, who were conscious of a stable system of political and social norms, had a strong sense of justice. According to Irwin Scheiner, “This system guaranteed them . . . justice from the political overlord; it determined the structure and pattern of social relationships within and without the village.” Thus, “by general law and specific statute their individuality was dissolved into their functions as peasants and then further subsumed by their role as members of the corporate village.”9 Some peasants who demonstrated against harsh regulations used terms like “justice ,” “injustice,” and “reason” as they demanded respect for their status rights.10 Overlords understood this message, because from early Tokugawa they “recognized that a viable government must heed the needs of the peasant for a just and benevolent government, since the economic basis of the state rested on the productivity of the peasant.”11 Moreover, many overlords were influenced by Neo-Confucianism, which spoke of benevolent rule and moral duties.12 One scholar suggests that the notion of justice among peasants was due to more than interaction with overlords. A notion of justice, she writes, developed through their participation in market exchanges. “According to their expectations, their ruler, like any merchant , should give them fair value.”13 Stories circulated about peasant leaders who sacrificed their lives for their villages. These martyrs were praised, because they championed the cause of justice. Most famous among them, Sakura Sògorò (or Sògo of Sakura), was crucified in the seventeenth century for petitioning the government for famine relief. According to the legend, village headman Sakura challenged the evil deeds of the local overlord by appealing directly to the shogun. This audacious act brought relief to the peasants but death for Sakura and his family. It is impossible to know how widely Sakura’s story circulated, but by the 1750s a published version appeared, and in 1776 Yuasa Gensen, a Confucian scholar, wrote A Tale of Sògo and His Enemy. Moreover, after the Meiji Restoration of 1868, thirty Tokugawa era manuscript versions of this story were found in farm storehouses from northern to central Japan.14 The most spectacular protest against official injustice was led by Òshio Heihachirò, a former government...


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