Was killing an enemy `officially sanctioned`?
Research dealing with revenge and `killing one`s enemies` has a long history in this country, at least from the Meiji period onwards. Although it is complicated, this is an important problem area, hence an explanation of a bit of the history of this research is in order.
The first direct commentary on the phenomenon of `killing one`s enemy` was made by Nitobe Inazō (1862-1933), the author whose visage appeared on the old five thousand yen note. In the middle of his literary work `Bushidō`, which was the first to convey to the outside world the Japanese concept of beauty (English version 1899, Japanese translation 1908), Nitobe touched upon `killing one`s enemy`, or katakiuchi, 敵討. Nitobe wrote that the pre-Early Modern samurai use of `katakiuchi` was a means to preserve the mores of society in a `world without law courts`, and so it functioned as a `logically equitable system of justice`. Nitobe thereby placed the samurai social practice of `katakiuchi` amid the universal history of mankind.(34-35)
The next person to deal with this issue from a legal perspective was the so-called `giant` of the Meiji and Taishō legal world, Hozumi Nobushige (1855-1926). In his work `Revenge and the Law` (Fukushū to Hōritsu, published posthumously in 1931), Hozumi took the view that the transcendence of revenge killings by the law was an important development in the history of mankind, and so established `katakiuchi` as a product of an era in which revenge was officially sanctioned. According to Hozumi, the history of mankind evolved from `an era in which revenge was sanctioned` to `an era in which revenge was limited`, and finally to `an era in which revenge was banned`. (35)
This study was followed by that of Hiraizumi Kiyoshi (1895-1984), the author of `The Imperial View of History` (Kōkoku Shikan) which promoted an ultra nationalistic view of history during the Pacific War. In his work `Social temples and society in the medieval period` (published in 1926), Hiraizumi examined the question of sanctuary and revenge in medieval Japan. While declaring that the social temples of medieval Japan performed a role similar to that of monastic sanctuaries in Western Europe, he also pointed out that the existence of revenge killings in medieval Japan led to the development of the concept of sanctuary. It was Hiraizumi who also posited that the gradual elimination of revenge killings by the courts in turn led to the elimination of sanctuary from society. For Hiraizumi, sanctuary existed in tandem with katakiuchi .(35)
These three theories may be termed `the traditional academic definition` of katakiuchi, and as is clear from a reading of all three, Nitobe developed his in order to promote recognition among Western society of the Japanese concept of beauty, while Hozumi and Hiraizumi both created their theories using the context of the nineteenth century theory of evolution and how this led to the development of the law (as well as the development of Japanese history). All three writers formed their views from the historical material available to them at the time, and the abundance of collateral evidence is truly astounding. Yet the danger in their theories lies in their excessive praise of the conquest of revenge by the state. This probably stems from the age in which all three writers lived, yet one cannot help feeling that they attempted to simplify and pre-establish a linear pattern for what is a complicated historical development. (36)
In conclusion, this means that as far as their historical research was concerned, the development of a unique law such as `mutual punishment` (Kenka Ryōseibai) was deliberate. All three writers` theories were in keeping with the age in which they lived. They saw the law leading society out of the dark ages into a brighter age of social mores. At the time the writers lived in, the practice of mutual punishment was regarded as the force that changed society, despite a lack of evidence to collaborate this. The theory was then simply inserted into the framework of the theory of evolution, thus giving it an overly positive reputation. The dangers of forming such a glorified theory on the creation of order by the state can be seen in the way that Hiraizumi advocated the `Imperial View of History` and leaned towards ultra nationalism. (36)
In response to this `traditional academic definition`, the criticisms of postwar Japanese legal history turned towards the basic facts that all three writers insisted upon, that is, that the practice of `katakiuchi` in Japanese history was `officially sanctioned` as a `logically equitable system of justice`. Ishii Ryōsuke, who built the foundations of postwar Japanese legal history, stated that the within the annals of Japanese history, the first appearance of `katakiuchi` as sanctioned by law was in the `Precepts of the Chōsokabe Family`, a document drawn up in Keichō 2 (1597) by the Chōsokabe of Tosa province (modern Kōchi prefecture), and therefore of the Edo period. In no way was katakiuchi `officially sanctioned` in general before this time, and thus the legal theory of evolution as promulgated by the traditional academic definition did not fit the Japanese model. (37)
In truth, the existence of katakiuchi as a legally sanctioned form of authority and its incorporation into the exercise of public authority, as in the `trials by combat` of medieval Europe, is almost impossible to confirm before the early modern period in Japan. Moreover, while katakiuchi might have been a statutory law during the medieval period, one is forced to conclude that before the early modern period, katakiuchi was banned in all but statutory law. For this reason, for a long time after the war researchers believed that katakiuchi of the medieval period was an illegal activity, and thus there wasn`t much interest in examining the phenomenon in detail. (37)
However research after this period led to a rejection of this point of view, and at present the view is that katakiuchi was not necessarily an illegal act. The author has found a number of examples from the Muromachi period to illustrate this point, which shall be examined in detail next week. (37)