Ritsuryo Law (律令法)
Ritsuryo law includes statutory laws such as; codes and ethics covering conduct, and various common laws established in the Heian period based upon ritsuryo. It's centered around public law established by the centralized nation after the Taika Reformation.
Hierarchical nature of ritsuryo law
The goal of ritsuryo law was to enable the kizoku (noble) class in Kinai and nearby provinces, who gained power during the Taika Reformation, to govern the people at every level through bureaucracy, instead of ruling the nation through local ruling families like in the past. Therefore, the framework of ritsuryo law was the legal establishment of a class system somewhat like the kizoku system.
The class system under ritsuryo law is characterized by the division of the people roughly into two groups, ryo (law-abiding people)/sen (humble or lowly people), and shinabe (technicians in offices) with zakko (special technicians) who were descendants of benotami (officers and people serving the Yamato dynasty) from pre-Taika era placed in between them.
The senmin (humble or lowly people) class was divided into five ranks, namely, ryoko (imperial tomb guards), kanko (slaves to public ministries), kenin (slaves of nobles), kunuhi (government-owned slaves), and shinuhi (privately-owned slaves), and the ranks were segregated by a tojikikon system where marriage must be between those of the same class. This complex classification of senmin succeeded the senmin system of torei (codes in the Tang era), and characterizes ritsuryo law as something different from the senmin system under medieval samurai law.
Ryomin (law-abiding people) were roughly divided into two classes, kizoku and heimin (commoners), although distinction between the two were not clear by law. However, the economic and political privileges granted to those at the fifth or higher ranks were guaranteed by law, and those with rank generally were exempt from taxes and other duties, distinguishing them from the general heimin who were subject to taxation such as soyocho (corvee, taxes in kind or service) and zoyo (irregular corvee), as well as military service.
A unique position in the class system defined by ritsuryo law is the position of the Emperor. In ritsuryo, there is no provision for the position, authority, etc. of the Emperor. This is due to the fact that the Emperor was considered to be above the law, and therefore, is not contradictory to the political significance of the Emperor. There was a kind of legality principle in the ritsuryo system, which required trials to comply with statutory law while the Emperor was not bound by law.
The position and authority of Emperors were not defined in the ritsuryo law, due to their religious functions, such as; their performing of national religious services since the pre-Taika era, and as a result of their despotic nature, this made them above the law.
An important point in the relationship between the Emperor and ritsuryo law is that the prerogative for the execution of death sentence (ritsuryo law), a capital punishment, belonged solely to the Emperor. Even if the gyobusho (ministry of justice) decided that the death sentence was appropriate, fukuso (reporting to the Emperor after repeating research) was performed three times with the Emperor, and the Emperor had to approve the execution of the death sentence. Thus, without the approval of the Emperor, the sentence would be reduced to banishment. In the case of banishment, it was not permitted to leave the place where one was banished for life unless special amnesty called hijosha was granted, and family members could not be pardoned from guilt-by-association, also, expulsion, and impounding of assets and farm/housing land that went along with the death sentence, which effectively and entirely denied their social existence in those times.
Ritsuryo law can be characterized as a kind of nomocracy, in that the dominant principle was that all classes and ranks other than the Emperor are bound by law. However, this principle does not deny the hierarchical nature of ritsuryo law, for example, the guaranteeing of the privileged position of kizoku with regard to the actual application of penalties, indicates that ritsuryo law served the kizoku class. For instance, in addition to the rokugi (six considerations) system where special allowance was made for punishment, those with rank had their punishment reduced based upon their rank, or in reality, did not receive general punishment unless they committed crimes such as hachigyaku (the eight most abominable acts or omissions) or homicide.
National structure and rules on administrative organizations
For the privileged kizoku class to directly rule the people nationwide, a systematic administrative/judicial structure covering the center and the remote provinces was necessary. Precise definition of such systematic national structure and bureaucracy is one of the characteristics that distinguishes ritsuryo law from samurai law. This resulted in remarkably formalistic rules on administrative organizations.
The central government was composed of nikan (two departments), hassho (eight ministries), ichidai (one office), and goefu (five guards) (two departments and eight ministries), and there were several government offices named shiki (agency), ryo (bureau), and Komoku-meishi under the ministries. In principle, these ministries were composed of four classes of government officials (shitokan), namely kami (director), suke (assistant director), jo (inspector), and sakan (secretary), and their authorities were also defined by law. This spirit was persistent all the way to the tail end of provincial governmental organizations, and the overall bureaucracy consisted of ministries that were interconnected through an orderly ranking system. Such a formalistic structure was markedly different from the rules on administrative organizations under samurai law, which were based on administrative practices and experiences, and is one of the basic features of ritsuryo law.
There was no distinction between administrative officer and judicial officer under ritsuryo law. These administrative structures were distinctive in that they were both simultaneously judicial systems. Lower court in the provinces was gunji (sub-provincial district administrators) and in Kyoto was shoshi (leading officials), and above them were kokushi (provincial governors) in the provinces and gyobusho in Kyoto, and finally, daijokan (department of state) and Emperor.
Jurisdiction of the courts was distinguished based upon the gravity of the sentences (five types), namely whipping, flogging, imprisonment, banishment, and capital crime (ritsuryo law). These were called gokei (five sentences) or gozai (five punishments).
According to the rules, the gunji would decide only on whipping, the shoshi, in Kyoto, would decide on whipping and flogging, the kokushi on flogging and imprisonment, the gyobusho on imprisonment, the daijokan on banishment, and the Emperor on capital crime.
Adoption of the Tang ritsuryo
The characteristics of ritsuryo law, mentioned above, arose due to a call for a new national organization based upon a system of complete state ownership of land and citizens after the Taika Reformation. Additionally, another reason is that ritsuryo law succeeded the Chinese ancient code that was considered to be its mother law.
Ritsuryo law was a legal system modeled mainly upon the Tang ritsuryo in both style and content, and should be seen as a Japan branch of the Tang ritsuryo, which served as world law in the East, at that time. Therefore, there is a disconnect between the ritsuryo law which is the adopted law and the inherent law from the pre-Taika era, and its nature differs in many ways from the samurai legal system which was established based upon unique common law.
However, it must be noted that important revisions were made with consideration given to uniquely Japanese conditions when the Tang ritsuryo was adopted. For example, unlike criminal law or rules governing administrative organizations, the ancient farmland allotment and reception law in Japan that was modeled on the equal-field system during the Tang dynasty, was a difficult system to implement without adjustments to the traditional landholding system. The Japanese ryo (administrative code) shows traces of conscious revisions that were made to the torei for implementation. Additionally, it is clear that differences during the stage of development in the system for private ownership of land in the pre-Taika era were taken into account.
Under toden law, kanjin-eigyo-den (hereditary field of officials) and farmland given by the Emperor, could be bought, sold, pledged, or rented without any limits, selling and buying of hereditary fields of commoners were permitted under special circumstances, selling and buying rights for farmland equally given to common people was forbidden in principle and allowed only in exceptional circumstances, and pledging or renting of various farmlands was forbidden in principle.
On the other hand, in the Japanese ryo, selling and buying of any farmland was absolutely forbidden, and only one year rental terms were allowed. Such differences may have been a reflection of the strength in government power and the state of development of a system for private ownership of land and an exchange economy. There are various revisions in the ryo which are less important than those for the codes for farmland, but on the other hand, ritsu (criminal code) clearly had a tendency to mimic the ritsu from Tang.
The primary reason why the adopted ritsuryo law was enforced for a long period of time since the seventh century was the tremendous power of government and the lack of political rights for the general public.
For example, it can be seen in the township-neighborhood system at the tail end of the administrative organization under ritsuryo law. Among the provinces, districts, and neighborhoods, neighborhoods were composed of 50 homes. This provincial system was built uniformly and administratively, and was totally unrelated to the naturally occurring settlements in the pre-Taika era. In the provincial lives of people, the 'village' was a basic unit of the community, but the fact that it was not recognized by law at all is characteristic of ritsuryo law.
Thus, it is difficult to find examples of legal practices used in ancient Japanese society under ritsuryo law,. According to sources like the Kojiki and the Nihonshoki, the Zuisho-wakoku-den (Chronicles of the Sui Dynasty), and Shinto ritual prayers, in the provincial patriarchal society under the pre-Taika era, law existed in a form not yet completely detached from the trial by ordeal system and religion. Additionally, it appears that law existed to maintain public order and authority in Yamataikoku as well.
During the royal Yamato era, it is believed that laws centered around criminal law developed as the form of common law while being influenced by ancient Chinese law. Adopting the Tang ritsuryo was possible based upon such a foundation, but the difference between the Tang ritsuryo, which was a comprehensive compilation of successive despotic legal systems since Qin and Han, and the Japanese law of the pre-Taika era, was so great that ritsuryo law could not avoid becoming, basically, an adopted law by nature.
It would be unfaithful to the factual evidence to underestimate the role of ritsuryo law in the history of the Japanese legal system by placing too much emphasis on the philosophy behind ritsuryo law as an adopted law.
According to "Shosoin-bunsho" and other sources, during the Nara period, the public law portion of ritsuryo law was in fact enforced as if it was not an adopted law. Thus, the common law which became the basis of medieval samurai law was not a genuine inherent law, but an inherent law which developed from ritsuryo law.
Additionally, ritsuryo law was important not only in the legal sense, but also in the sense of the history of philosophical thought. Similarly to its mother law, the basic thought of ritsuryo law was Confucianist and legalist, and Confucianism in particular was significant as a leading strand of thought in Japanese ritsuryo law as well. Meirei-ritsu in Yoro included undutifulness in its hachigyaku along with crimes such as perfidiousness. For example, including the crimes of striking, killing and wounding of grandparents, parents, grandparents, and parents of a husband as atrocities, and setting up rules for not permitting amnesty, is nothing more than the legislation of Confucian morals.
Development of the patriarchal authority family since the pre-Taika era did build a basis for accepting and applying such law, but in the Confucian spirit, ritsuryo law gave tremendous power to parents or the head of the family, while drastically lowering the legal and social status of women.
Changes in ritsuryo
Ritsuryo law remained the basic national law throughout the Nara and Heian periods, but important changes occurred around the time when "Engishiki" (a book of laws and regulations compiled during the Engi era) was established and issued in the tenth century. This is a result of new common laws being formed in various areas of ritsuryo law, due to a variety of historical changes such as the emergence of new political formats like sekkan seiji (politics of regents and advisers) and insei (rule by a retired Emperor), decline of ancient farmland allotment and accepting system and development of manors, and dismantling of the class system under ritsuryo law. This can be categorized as the age of court noble law.
Ritsuryo and the government service system
For example, among the variety of important changes that occurred in the government service system, the system of kurodo (keeper of imperial archives) and kebiishi (statutory office in the Heian and Kamakura periods) is notable. Kebiishi was established at the beginning of Heian period when the judicial function of gyobusho and daijokan was diminishing, and they gained authority for tsuibu (pursue and capture) as judicial police, as well as condemnation and adjudication.
Before long they became involved in civil trials, and once they were assigned to provinces along with the tsuibushi (envoys to pursue and capture), they even participated in the rendering and collection of taxes. Unlike during the prime of the ritsuryo system, changes in class relationships made it impossible to collect taxes without enforcing power, and this was reflected in the changes in the function of kebiishi.
The cho-rei (law enacted by the kebiishi) of kebiishi was considered the historical custom of the kebiishi agency, and was valid as a common law different in nature from the criminal law of ritsuryo. Common law inside the ministries was already accepted as law, since the Nara period, through terms like rei and gyoji.
The age of court noble law
In the age of court noble law, the system of common law developed an important legal significance in various areas of law.
Honjo (proprietor or guarantor of the manor) which developed, based on the shoen system, is one example, as well as common law that can be referred to as Kokuga (provincial government headquarters) law, that developed within provincial governmental organizations.
The basic format of the kokushi (provincial governors) system was not different from that of ritsuryo law even during the Heian period, but when the position of kokushi turned into a salaried one, and yonin, who are kokushi who would not go to their place of appointment, increased, provincial administration was performed by rusudokoro (the center for all local government administration in a province) or zaichokanjin (local district officials). At the same time, the base unit of kokugaryo (public lands) became hyakusho-myo (smaller holdings of shoen held by ordinary peasants), replacing ko (smallest social organization unit in provincial administration) used in the Nara period. Soyocho, zoyo, and various temporary impositions had to adopt corresponding collection methods. In particular, in order to control the relationship with the shoen, formed within kokugaryo, a new law, not included in ritsuryo, had to be created.
Feudal system characteristics of the shogunate and research on the Ming code
Since the Yoro code, there has been no compilation of ritsuryo in Japan, and with the abolition of the Japanese envoy to China in the Tang dynasty, Chinese ritsuryo was no longer being introduced, but naturally, compilation and revision of ritsuryo continued in successive dynasties in China. By mid-Edo period, while the world became peaceful and as society developed, new social issues emerged that could not be dealt with by the traditional shogunate system of law that succeeded the ancient system after the warring states period. Furthermore, there was criticism against the harsh punishments which were left-over relics of the warring states period (Japan). Therefore, in order to supplement the areas lacking in traditional law, research on the Ming code, used in the Ming dynasty, began within the Edo bakufu (Japanese feudal government headed by a shogun) and various clans (China was already in the Qing period, but many Ming legal documents were introduced in Japan and the Qing code mostly succeeded the Ming code). Initially it was performed by powerful feudal lords such as Mitsusada TOKUGAWA of the Kii Domain, Tsunanori MAEDA of the Kaga Domain, and the scholars around them, but when Yoshimune TOKUGAWA, the child of Mitsusada, became the eighth shogun of the Edo bakufu, research was performed in the bakufu as well. Representative examples are Kiboku TAKASE (real name: Tadaatsu, 1668 - 1749) and Hokkei OGYU (real name: Kan, 1669 - 1754).
Takase was a doctor and a scholar in the Kii Domain, who participated in research on the Ming code since the days of Mitsusada. Authored in 1720, 'Daiminritsureiyakugi' is a complete translation based on accuracy and simplicity (translated into terms used in Japan at that time), with a focus on thoughts on humanity and merciful punishment. Meanwhile, Ogyu who served as the court physician for Yoshimune, was critical of the fact that 'Daiminritsureiyakugi' did not contain the original text, and in 1723, authored 'Kanjunkankominritsu' (kuntenbonminritsu), which added revisions and punctuation to the original Ming code. The latter received special sales permission by Yoshimune at a time when publication of legal books was strictly prohibited. Confucianist Sorai OGYU, the blood brother of Ogyu was influenced by his younger brother and also authored a book 'Minritsu kokujikai' (The Ming code, with Japanese explication). Such achievements led the bakufu to reduce cruel punishments and to introduce new punishments such as 'correctional fines,' 'beating,' and 'tattooing,' but due to the conservative factors of 'Kyoho-no-kaikaku (Kyoho reform)' itself, it did not lead to an overall revision of the bakufu law.
In contrast, Shigekata HOSOKAWA, of the Kumamoto Domain, drew upon the research on the Ming code to carry out bold judicial reform. The 'Keiho sosho,' established in 1761, was a progressive legal system introducing the 'penal servitude' (imprisonment) system, probation system, and tattoo removal system, and is known to have largely consulted the Ming code compilation. Additionally, the domain limited the executions to a certain time of the year, and established a practice called 'shikeibishin' where the major officials, including the feudal lords, behave themselves on those days due to the shame of having a death sentence within the territory.
Outside Kumamoto, many domains followed the Kumamoto Domain and began carrying out judicial reforms modeled after the Ming code since the end of the eighteenth century.
The 'Shinritsu koryo' (Outline of the New Criminal Code), which was used for 11 short years in the new Meiji government since 1870, was also modeled after the Qing code which succeeded the Ming code. Additionally, 'Minritsu kokujikai' by Sorai OGYU was put forward as required reading for judicial officers. However, with the introduction of criminal law in 1881, the criminal legal system under the Chinese system of law since ancient times ended and shifted over to the criminal legal system under the Western system of law.
History of research
The interpretation and research of ritsuryo text began immediately after the Taiho code was enforced in 701. From that year and on to the following year, FUJIWARA no Fuhito and other compilers took part in lecturing, explaining, and deciding the interpretation of the ritsuryo text as myoho-hakase (illuminators of the law) and ryokan. Subsequently, specialized scholars decided the interpretation as ryoshi.
Around 738, 'Koki' (ancient records), a private commentary on the Taihoryo (law of Taiho), was published.
Triggered by the enforcement of the Yoro code soon after in 757, FUJIWARA no Nakamaro, who was in power at the time, lectured on the new ritsuryo and personally made interpretation decisions. However, among the above, only the 'Koki' can be referred to as being research on ritsuryo, while others were acts of publicly deciding on the interpretation of the text.
After that, research on ritsuryo became active between the end of the eighth century and the beginning of the ninth century, and many private commentaries such as Reishaku, Sekki, and Kekki, which are quoted in the "Ryo no shuge" (Commentaries on the Civil Statutes) were published around that time. "Ryo no gige" (commentary on the Ryo) is a public commentary published during such trends.
Later, official ritsuryo lectures were held three times, in Jogan (Japan)(859), Engi (year unknown), and Choho (999), and in the meantime, "Ritsu no shuge" and "Ryo no shuge" were compiled by KOREMUNE no Naomoto, but there is no commentary covering the entire ritsu and ryo, and the study of ritsuryo was passed along only as hereditary learning in the Koremune clan, Sakagami clan, Nakahara clan, etc.
Then in the Muromachi period, Kaneyoshi ICHIJO authored the "Ryosho," but this also was simply a summary of ancient commentaries.
Next, in the Edo period, research on ritsuryo by both scholars of Chinese classics and scholars of Japanese classical studies flourished, and Yoshichika TSUBOI (1657 - 1735), KADA no Azumamaro, Michikuni INABA (1744 - 1801), Hidekai KAWAMURA, Hidene KAWAMURA, Moriyoshi SONODA (1785 - 1840), and Yoshiki KONDO are among those who left commentaries, but the center of the research was still on hermeneutics.
With the development of studies in modern history, research on ritsuryo deepened in various directions beyond interpretation.
Various research papers in the "Hoseishi ronshu" (A collection of essays on legal history) by Kaoru NAKADA (scholar) and the "Ritsuryo no kenkyu" (Studies on Ritsuryo) by Masajiro TAKIKAWA are major research literature published before the Pacific war, and the commonality between them is an attempt to clarify the difference between Chinese ritsuryo law and Japanese ritsuryo law. In that respect, the "Torei Shui" (Collected Laws in the Tang Dynasty) by Noboru NIIDA cannot be ignored, although the Japanese ritsuryo itself is not discussed.
After the defeat in the war, research deepened further, but in general, through individualization and fragmentation, the meaning of each text and the systems established based on them are becoming clarified in detail. As it stands, investigation has finally begun in an attempt to grasp the ritsuryo law holistically and to clarify its legal structure and characteristics, and on the clarification of the historical characteristics of a nation formed based on ritsuryo law.