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In the Roman Empire and other universal states in the days of their decline, attempts were made to arrest the course of deterioration by “freezing” an existing legal or social situation. The Tokugawa Shogunate in Japan was perhaps unique among universal states in applying this prescription of “freezing” from first to last and in achieving the tour de force of arresting change in the outward forms of social life (though not, of course, in the inward realities) over a span of more than 250 years.
In the domain of law the Tokugawa régime, so far from regarding equality before a uniform law as being a desirable ideal, exerted itself to accentuate and perpetuate a caste division between the feudal aristocracy [daimyōs] and their [samurai] retainers on the one side and the rest of the population on the other which was one of the worst of the wounds that the Japanese Society had inflicted on itself during a foregoing Time of Troubles. The cue was given by Tokugawa leyasu’s predecessor and patron Hideyoshi in an edict of A.D. 1587 (popularly known as “the Taiko’s Sword Hunt”) [Taikō was a title given to a retired kampaku, or adviser to an emperor, and is often applied to Hideyoshi] ordering all non-samurai to surrender any weapons in their possession. The recently and arduously established central government further sweetened the pill for the feudal lords whom it had deprived of their long-abused de facto local independence by leaving them a very free hand to maintain and develop as they pleased, in all matters that the central government did not consider pertinent to the preservation of its own authority, the variegated “house laws” which the ruling family of each fief had gradually hammered out and enforced, within the limits of its own parochial jurisdiction, during the later stages of the foregoing Time of Troubles, particularly during the fifteenth and sixteenth centuries of the Christian Era. The edict entitled “the Laws of the Military Houses” which Tokugawa leyasu promulgated in A.D. 1615, on the morrow of his crushing retort to the last challenge to his absolute authority,
“is a document which, like the formularies and ‘house laws’ of earlier times, is not so much a systematic collection of specific injunctions and prohibitions as a group of maxims, in somewhat vague language, supported by learned extracts from the Chinese and Japanese classics.” [This quotation and those that follow are from Sansom, Sir G.: Japan, A Short Cultural History (London 1932, Cresset Press).]
“This ‘Constitution’ … was regarded by the Shogunate as fundamentally unchangeable. It was re-affirmed by each shogun on his succession, in a solemn ceremony attended by all his vassals; and, though circumstances sometimes forced them to alter it in detail, they never admitted or even contemplated any deviation from its essential principles, and they punished without mercy any breach of its commands.”
This in spite of the edict being vaguely-worded and in spite of the freedom allowed to the feudal lords in particular matters.
It is noteworthy that under this ultra-conservative régime a tendency towards the standardization of local laws did nevertheless declare itself.
“Within their own fiefs the barons enjoyed a very full measure of autonomy. … But the Shogunate, without interfering, used to keep a sharp watch on the conduct of the feudatories, and it was one of the chief duties of the censors (metsuke) and their travelling inspectors to report upon affairs in the fiefs. For this and similar reasons there was a general tendency among the daimyō to assimilate their administrative and judicial methods to those of the central authority, and the legislation in which the Shoguns freely indulged soon began to displace the ‘house laws’ of the fiefs where it did not clash with local sentiment and habit.”
A Study of History, Vol VII, OUP, 1954
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