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Wheels have been set in motion, and they have their own pace to which we are . . . condemned. Each move is dictated by the previous one - that is the meaning of order. If we start being arbitrary it'll just be a shambles: at least, let us hope so. Because if we happened, just happened, to discover, or even suspect, that our spontaneity was part of their order, we'd know that we were lost.
A Chinaman of the T'ang Dynasty - and, by which definition, a philosopher - dreamed he was a butterfly, and from that moment he was never quite sure that he was not a butterfly dreaming it was a Chinese philosopher. Envy him; in his two-fold security.
- Tom Stoppard, Rosencrantz and Guildenstern are Dead
Introduction
The Scope of Law - History
Medieval Japanese Law
Medieval Canon Law
Japanese Law vs. Canon Law: Area-Specific Comparisons
Attitudes Towards Law
Attitudes Towards Conciliation
Attitudes Towards Punishment
Conclusion
Bibliography
Footnotes
Sir Isaac Newton stated, "If I have seen further it is by standing on ye shoulders of Giants". In history, the shoulders we stand on may not be those of giants, but we do stand on the shoulders of all the people who have gone before us - some naturally of greater stature than others. To ignore the philosophies and circumstances preceding our current legal system is to ignore the very foundations of law and thereby to decrease our understanding of how the law should be applied. The law cannot be effective if its practical application bears no connection to conceptions of fairness and justice in the society which it rules. The society in turn has been shaped by historical thought and values - Justice may be blind, but she has not thereby renounced her ties to the world.
Medieval canon law and the laws of medieval Japan are part of the Western legal tradition and the Japanese legal tradition respectively. Both are, however, taken into little account in a discussion of how the two systems developed, since they are not directly related to the development of current legal procedure. The current Western system incorporates the civil law, which is based on a code, and common law, which is based on case precedent. Neither of these bears a great resemblance to canon law, which is based on the incorporation of individual religious decrees into a general body of law formed by preceding decrees. The current Japanese system is almost entirely based on European civil codes, adopted in the 19th century. This system, taken as it is from a foreign source, naturally bears little resemblance to the laws of medieval Japan, which were much less formal, and were based on customary practice.
At first glance, medieval canon law and the laws of medieval Japan seem to have had little impact on modern-day law, but this superficial examination is misleading. A legal tradition is more than the legal system in which people operate; it comprises the system along with the principles and history underlying the written law. Since both medieval canon law and the laws of medieval Japan were religiously based and therefore primarily concerned with the conduct of the people comprising their respective societies, it follows that they are at least a contributing factor in the development of modern laws. Because they are rooted deeply in cultural thought, they have also made an impact on the way in which the laws are applied.
The impact of these medieval laws on modern legal thought is the primary focus of this paper. As both Western civil codes and the Japanese civil code have the same basic structures, a comparison of the role played by law in past events and beliefs will highlight the impact of history on their respective legal cultures. The comparison between the two traditions is made even more efficacious by the fact that there was only limited contact between the two societies before the Japanese adoption of the European civil code system. Accordingly, this paper will compare the historical approaches of the two legal traditions, with particular comparisons regarding attitudes towards certain legal issues - the role of law in society, conciliation, and punishment.
Any discussion of the similarities and differences in the two legal traditions necessitates an understanding of what those traditions entailed and how the histories of the two societies differed. Just as culture is a necessary part of law, history is a necessary part of culture, and can demonstrate the scope of law in the two traditions.
Tradition has it that, at the beginning of the third century, Queen Himiko of the Yamato clan united diverse warring clans into one group. Her political power was based on religion, and her role as mouthpiece of the gods was similar to that of the Greek oracle: she would fall into a trance and pronounce oracles which were deemed to be law. The San-kuo Chih (History of the Three Kingdoms), a Japanese treatise on religious thought written in the ninth century, stated:
Himiko served the gods and exercised a charismatic influence over the whole nation. She was elderly and she had never married. Her younger brother helped her rule.[1]
The allusion to the younger brother refers to the practice of a female oracle as the voice of the divine will and a male governor as the executor of the divine will. Thus although the Queen reigned, she did not engage in the process of governing. This practice continued until the mid- seventh century.
Law during this period was not distinguished from religion nor from any other societal rules. This conception continued on until the beginning of the sixth century. The interesting point about this period of Japanese history is that it was almost completely uninfluenced by any foreign cultures, so attitudes towards crime and other legal misdeeds were uniquely Japanese. Delicts came under the same heading as religious sins and could be dealt with through ceremonial religious cleansing, which would wipe out the delict. Evidence of this period shows that there were few crimes or trials during this period due to the strong moral fibre of the Japanese people. This, however, should possibly be viewed skeptically in light of the fact that early Japanese historians were prone to transcribe history as it should have been, not as it actually was:
[T]hese first essays in national history came from the enthusiastic but unpractised pens of scholars who were under the influence of the Chinese historical classics and felt on grounds of national pride that what they set down should not be an unvarnished tale, but must be provided with ample embellishment...it was their duty not to recite the bare facts of history but to present them in such a way as to magnify the reigning house and to uphold the institutions that had been developed under its government.[2]
The rest of the sixth century was characterized by the simultaneous growth in power of non- imperial clans and the introduction of Buddhism into Japan. Buddhism quickly spread in Japan and was adopted by the imperial clan. At the end of the sixth century, the Empress Suiko and Crown Prince Shotoku instituted changes in the government which had far-reaching implications. They undermined the power of non-imperial clans by inaugurating a civil service system based on ability and merit, not heredity. Empress Suiko then began an exchange of letters with China on terms of equality, not of vassalage as had previously been the case. Crown Prince Shotoku is widely held to have drawn up The Code of Seventeen Articles, which embodied the concept of a centralized system of government with a powerful Emperor to whom all clans were subordinate. This quasi-legal document stressed social harmony and obligations to the State and was the forerunner to the Taika Reform of 676.[3]
The T'ang Dynasty took power in China in 618, and inaugurated a powerful, highly centralized government. To defend against possible invasion, the imperial clan began to consolidate power in order to present a cohesive front against China. One of the instruments to this end was the Taika Reform of 676, which consisted of four articles: Article I abolished private title to land, Article II established the Inner Provinces and a capital city therein, Article III instituted population registers, and Article IV abolished old taxes and introduced a new system of taxation and new labour laws.
Roughly concurrent with the Taika Reform was the development of ritsu-ryo, a system of legal codes modelled on the Chinese legal system. Ritsu was a body of penal codes and ryo was a body of administrative laws. These laws were closely linked to the Confucian dialectic of positive rules and injunctions, and of a natural order in the universe. Very few of these codes are extant; the most complete of these is the Yoro Ritsu-ryo of 718, comprised of 12 ritsu books and 30 ryo books, further amended by particularized laws (kyaku) and rules (shiki). The Taiho Ritsu-ryo of 701 is the most famous code, but is no longer extant. It dealt primarily with the structure of government, the allotment of land, and the obligations of farmers.
Unlike the Western legal goal of dispute resolution, the ritsu-ryo was predicated on the notion of dispute avoidance, resolving disputes only where absolutely necessary and educating the people as to the Confucian ideal.[4] This goal of education led to the creation of faculties of law in the national administrative college that had been set up to educate state functionaries and in the private provincial schools. As a result, several commentaries on the ritsu-ryo were written, some of which are still in existence.
In the ninth century, the ritsu-ryo system fell out of favour, although the laws themselves were never formally repealed. This breakdown can be attributed to the fact that the code of ritsu- ryo had been adopted from the Chinese system, which had no connection to the social realities of Japan. Japan had always had powerful noble clans who were disinclined to be completely subordinate to the emperor, and these clans gradually appropriated public lands, resulting in estates called shoen. Although illegal, these estates (which bore a strong resemblance to the European manor in scope if not in origin) were given a form of official recognition through their exemption from taxes, as were the estate owners (honjo).
At the same time as these estates arose, the system of conscription for the army under the ritsu-ryo was abolished, and the konden system of young aristocrats replaced it. This system soon proved ineffective, and by the tenth and eleventh centuries, influential officials, farmers, and nobles began to arm themselves for self-protection. This led eventually to the class of warriors known as the bushi, and the bodyguard subclass of warriors known as the samurai. The bushi became a new social class, comprised primarily of several clans who became extremely powerful. Chief among these were the Taira clan and the Minamoto clan, both of which gained the rank of shogun (high general) at different times and wielded tremendous power at the imperial court.
In 1185, Yoritomo, head of the Minamoto clan, established the Bakufu, which was a government of the bushi, at Kamakura. From that point, the emperor ceased to have ruling authority and reigned in name only, and the ritsu-ryo system gave way to feudalism. In contrast to Western feudalism, there was no duality of legal obligation - a vassal owed fidelity toward an overlord, but the overlord owed nothing to the vassal. In theory, a lord had an obligation to give protection and other benefits in exchange for loyalty and service, but there was no legal recourse for the vassal should the lord fail in this regard. Any act performed by a lord to the benefit of a vassal was called an onkyu, and was roughly similar to the European beneficium of feudal times, a non-mandatory favour.
The key offices of the Bakufu were the Samurai-dokoro, which kept vassals under control, the Kumon-jo, which took care of general administration, and the Monchu-jo, which served as a court of justice for civil suits.[5] Although the shoen system still existed, it became solely an economic basis for supporting the bushi, without actual political power. Yoritomo placed jito, officials of the Bakufu who were also warriors, on the shoen estates as police and judicial officers. In those positions they quickly took over a leading role and essentially subjugated the shoen. By the end of the twelfth century, the shoen system had largely lost all political and legal impact.
During the period of transition between the shoen regime and the Bakufu regime, three separate legal systems existed. The first was Kuge-ho, which was based on the old ritsu-ryo system and was essentially common law. It was, however, not commonly applied; most of its laws came from the powerless imperial court and were of a moral nature. The second system was the Honjo-ho, customary law that applied to all shoen. It was also a variant on the ritsu-ryo, and its application varied greatly from region to region. The third, and most important, system was the Buke-ho, which consisted of moral rules and customs applying specifically to the bushi class. Unlike the ritsu-ryo, which was taken almost wholesale from the Chinese culture, the Buke-ho (or bushido) was developed gradually, forming a uniquely Japanese customary law with few written decrees, one of which was the Joei- shikimoku.[6]
The separate bushido system of law for the bushi enhanced the impartiality of the bushi in adjudicating lawsuits brought by vassals. As there were no legislated codes, claims were adjudicated based on local practice, custom and official documents. In contrast to feudal Europe, there was no trial by contest, reliance on oath taking or any distinction between the value of noble testimony and commoner testimony. The following passage sums up the process:
Kamakura vassals were assured very high standards of justice. Judicial settlements were basically remedial, with judgments the result of an exhaustive review of evidence submitted by legally equal adversaries.[7]
Another difference between Kamakura law and feudal European law was that law enforcement under Kamakura law was generally non-punitive. Serious offences might lead to the loss of titles, but most offences required only the restoration of what had ben lost - for example, tax defaults would be ordered paid, stolen goods were ordered returned, abused persons were declared secured, and illegally seized rights were declared terminated.[8]
In the fourteenth century, the Kamakura Bakufu was overthrown by the Emperor Go-Daigo in the Kemmu Restoration. Unfortunately, due to mistakes in policy, the Imperial government was itself overthrown three years later, and the Muromachi Bakufu was installed in Kyoto. It is interesting to note that the position of Emperor remained intact; the Emperor Komyo was placed on the throne by the Bakufu. However, as in the Kamakura era, the shogun was the actual ruler of Japan. By the end of the fifteenth century, the shoen system had completely been eradicated, and, as the Bakufu weakened in power, Japan split into different fiefs (han), each ruled by a daimyo. Each han enjoyed political and legal autonomy and had different laws. As a result, before Tokugawa Ieyasu ascended to power in 1603 and established a strong, central, bushi-dominated system, there had been widespread fighting among the daimyo to gain political power over Japan as a whole.
After Tokugawa came to power with his policy of sakoku (closing the country to foreigners), the Bakufu once again regained its strength, though not to its former extent of control. The Bakufu chose to work with the han and urged each han to follow the basic tenets of shogunate law The laws of the han thus came to closely resemble those of the central shogunate power. This dual system of laws was called baku-han taisei.[9] Both the Bakufu and the han promulgated legislation (hatto) which primarily concerned the means of governance in a feudal system.
This era saw the development of several different classes. There were the kuge, who were the nobles of the imperial court, the buke, who comprised the clergy (both Buddhist and Shinto), the commoners, and the pariahs. Commoners were in turn divided into peasants, artisans and merchants, in descending order of social class. It was forbidden to change social classes, and distinctions between classes were rigidly maintained and codified. This state of affairs was deeply rooted in the moral edicts and beliefs which were prominent in Japanese life; it was thought that this type of social layering reflected the natural order of things.
During the Tokugawa period the laws were still loosely based on Confucianist dialectic, but unlike the previous ritsu-ryo belief, the philosophy promoted by the Bakufu was not to educate the people in the law, but to keep them ignorant and docile. From ruling based on might, the bushi had evolved into focusing more on the learning and morality of the bushido, which had in turn expanded to include all areas of life. This expansion of bushido application, coupled with the rigid social layering, led to a view of legal justice which was the opposite of that held in the Kamakura era. Rank was of great importance for determining the probative value of evidence in cases, and punishment for misdeeds of commoners became very harsh. This led to a societal attitude known as menju-fukuhai, denoting outward obedience and inward rebellion, which has had repercussions in modern-day Japan.[10]
This period was a weak one for legal developments, and yet it continued in roughly the same course for over 200 years. There were no special law schools corresponding to the dagaku of the ritsu-ryo era, there were no professional lawyers such as were found in Europe at the same period, and judicial offices were undistinguished from other public offices. The bug yo were the top magistrates of the Bakufu regime, but their jobs were not limited to legal matters; their jobs were closely linked to the territory in which they operated, and in which they dealt with all manner of matters. This low point in legal development may have made the Japanese much more amenable to the introduction of Western law when the policy of sakoku was forcibly ended in 1853.
As with most countries, the history of medieval Japanese law is not uniform in philosophy over time. However, there are several threads which run through Japanese history which form a rich contrast to Western canon law of the same period, and which provide a backdrop to the application of current Japanese law.
The term "Canon" comes from the Greek word kanon, which refers to a wooden rule used by carpenters and by extension, to any rule of an art or trade. Given this origin, it is unsurprising that, with the growth of Christianity, "canon" was adopted to mean "commandments of God", which were in turn split into two categories: regulae fidei or truths of faith, and regulae morum, or behavioral rules.[11] Canon law therefore comprises those sacred works containing the truths of faith and the rules governing Christian behaviour, particularly the behaviour of the clergy. This body of work developed gradually over time and moved from having a largely internal Church influence to having a more cosmopolitan and secular power in the Middle Ages.
The history of medieval canon law is quite different from the history of medieval Japanese law, and as such, must be described in a different fashion. As a result of internal and external struggles, canon law in the Middle Ages was far from being consistent or cohesive. To discuss canon law in a historical vacuum is absurd, yet it is also impossible to describe the convoluted machinations and intellectual developments of the medieval Church without becoming involved in unnecessary detail.[12] This section will simply highlight some of the more important developments in canon law and only deal with their immediate historic context.
Basic Principles of Canon Law
The basic principle of canon law is that God is the source of all law. God created the ius divinum
positivum, which is divine law revealed through Scripture and revelation. This is connected to
ius divinum naturale, which is natural law - the laws that should be obvious to every being
capable of reason and which actually stem from divine law. Taken together, these laws are universal
in application. Canon law must therefore reflect both natural and divine law; the canons decreed by
the Church are in fact official interpretations of divine law, not the divine law itself. The
representatives of the Church derive their authority to interpret divine law from their roles as
successors of the Apostles, who received from Jesus Christ the power to issue laws for the Church and
who were the first creators of canon law.
Because the interpreters of divine law over the years have differed widely in their intellectual backgrounds, the interpretations, though each equally valid, are not consistent. Unlike modern legislation which is strictly drafted and codified, many decretals issued by popes were in the form of letters. There is a certain amount of Biblical authority for this format - Jesus taught in parables, and St. Paul wrote numerous letters in Corinthians, Ephesians and Galatians relating to Christian marriages and general daily behaviour. Unfortunately, the format also makes it extremely difficult to separate what may be mere narrative from concrete doctrine. This state of affairs is further complicated by the fact that decretals in this format tended to deal with substantive Church matters, such as heretical doctrines, rather than mere procedural matters, such as the organization of the Church. Nevertheless, as all decretals have as their justification the right of divine and natural law, the source of canon law is theoretically unquestionable and consistent; it is only in application and subsequent interpretation that errors and inconsistencies occur.
Early Church History
Unlike Confucianism and Buddhism, which became a foundation of sorts for Japanese law and which
were integrated without opposition into Japanese society, Christianity faced struggle from its inception.
Early Christians formed a small, close-knit group with secretive habits, and were therefore viewed with
hostility by Jews and pagans alike. This hostility soon coalesced into outright persecution, forcing the
early Christian church to practice its beliefs clandestinely. This state of affairs continued for three
centuries.
Due to the unpromising beginnings of the Christian Church, canon law developed of necessity in a piecemeal fashion. Early decrees related to internal matters, such as the formal rituals of mass, the rights and obligations of members of the Christian community, and procedures for the various Christian festivals.[13] Later decrees, formulated after Emperor Constantine converted to Christianity in 312 and elevated the religion to a position of power, generally related to specific cases which had been brought before an ecclesiastical authority, and attempted to set out rules of appropriate behaviour in similar circumstances. Also dating from Constantine's conversion was the formation of Church councils and synods in which large numbers of bishops came together to work out common policies relating to Christianity and to adjudicate complaints and disputes about doctrinal belief and conduct. The decrees and canons resulting from these councils swelled the body of existing canon law.
By the end of the fourth century, a rigidly hierarchical Church structure had been developed, in contrast to the relatively collegial atmosphere that had prevailed when the Church consisted of small groups of faithful adherents. Priests and ministers were responsible for a small group of geographically defined laypersons (a parish), and reported to a bishop, who supervised the region (diocese) in which several of these parishes were located. The bishop was subordinate to an archbishop, who controlled a still larger region (province) containing several dioceses. The archbishops were responsible to the five patriarchs, who would preside over councils and synods. Among these patriarchs was the bishop of Rome, which claimed patriarchal status over the whole Western empire as well as supremacy over the other patriarchs. This developed over time into the office of Pope as supreme ruler over the whole Church.[14]
This new structure, coupled with state sanction, gave the Church new prominence in daily life. Indeed, the emperors Gratian and Theodosius[15] issued the Cunctos populos in 380, which decreed that only those not confessing the doctrine of the Trinity were "maniacs and fools" and, as heretics, would be subject to imperial wrath.[16] This decree arguably set the tone for future canon law as taking a militant stance on non-believers, for many of the norms of Church law were adopted from Roman civil law to give it increased application. This demonstrates the strong connection between the Church and the State; although several rulers (notably Justinian in the sixth century) viewed themselves as head of both Church and State, the actual structure of the Church remained separate from the states in which it was located. This quasi-separation later led to much conflict about the priority of the Church in legal and political matters in relation to the State. In addition, the rigid structure and beliefs of the Church generated many conflicts due to deviations from mainstream teachings of the Church. In contrast to the broad principles of Confucianism and Buddhism, in Catholic Church doctrines, "God is in the details". Many offshoots from mainstream Christianity sprang up, sects such as Arianism, Manichaeism, Donatism, Monotheletism and Nestorianism. These were considered heretical, and yet the basic beliefs were the same - it was only the manifestation of some of the beliefs that were in issue. These internal and external conflicts set the tone for the actual canon law that was decreed.
Early Sources of Canon Law
Early canon law documentation tended to deal with the mundane workings of the Church, and no
single document stands out as being a definitive guideline to Church law. Between 341 and 381, the
Syntagma canonum was compiled. This consisted of canons of several Eastern councils in the
fourth century, and was translated into Latin in the West during the fifth century. It is popularly
regarded as the first documentary source of canon law.
The Code of Justinian, although not itself canon law, had a profound influence on canon law, since Justinian considered himself head of both Church and State. The Code was promulgated in 529 and contained specific references to ecclesiastical affairs and to problems of faith and dogma, which were later adopted by canonists. This Code was one of the touchstones upon which the Eastern and Western divisions of the Church disagreed. It demonstrated a certain degree of integration between the Church and the State which was both less popular and less applicable in the West than in the East.
In 692, the Synod of Constantinople approved the expansion of the Sytagma canonum, and thereafter it was continually enlarged. However, there was no systematic method of expansion, and so the Syntagma became unwieldy, inconsistent, and difficult to consult.
It is at roughly this point that Eastern and Western Church history diverge. The Eastern Church, prompted by Justinian, were of the opinion that both secular and ecclesiastical power had been conferred on the person of the emperor by God. The Church therefore looked to the emperor for leadership and deferred to his laws. The Western Church, on the other hand, experienced many difficulties due to the influx of Germanic peoples into imperial territory. Even before the inclusion of Germanic tribes, Western states comprised a looser organization than the East, which allowed the Church to retain a degree of separation from the State. With the assimilation of the Germanic peoples into the Church, canon law reflected the individualism brought by these peoples, and each region began to generate its own sets of practices and regulations. Additionally, the Germanic kings styled themselves the protectors of the faith, and brought a more militant element into the Church than had previously existed.
The principal collection of Western canon law from the fourth to the seventh century is the Collectio Dionysiana, which consisted of the Liber canonum and the Liber decretorum. The Liber canonum contained translations of the canons of a large number of Eastern councils while the Liber decretorum contained 40 decretals of fifth century popes. These collections were later supplemented by Roman councils up to 743, and decretals from Innocent I to Gregory II (715-731); they were also continually organized for clarity and to reflect only the views universally held in the Church. In 774, the Collectio Dionysiana was sent by Pope Adrian I to Charlemagne as the official code of canon law for the Universal Roman Church, and in 802, after undergoing revision and supplementation, it was promulgated as the Codex Hadrianus by the Synod of Aachen. This work, also known as the Liber canonum, was disseminated throughout the Church's domain.
From the eighth to the twelfth century, there was a renewed effort in both the East and the West to better organize collections of canon law so that they might be easily referenced. Many collections originate from this time, but perhaps the most important one is the Decretum of Burchard, Bishop of Worms (c. 1025) which became the definitive work on canon law for many generations thereafter. It attempted to define the scope of canon law, and dealt in 20 volumes with procedural and moral matters, organized by topic. This method of organization was later used as a model for other collections.
During this time period from the fourth to the twelfth century, there were also a number of false decretals and collections that were put together. Chief among these is the Pseudo-Isodorian Decretals, which was a collection of canons concocted by reformers in the ninth century. It contained certain canons which had not been approved by the Church as a whole, as well as approximately 90 papal letters and decretals supposedly ranging from 90 A.D. to 731 B.C. which were forgeries. The intent of this collection was to strengthen the structure of the Church and confirm papal supremacy, and the collection actually created a new Church office (the "primate") which was intermediate in authority between the bishop and the patriarch. The influence of this collection was pervasive, and, as it added new and complicated procedural requirements for different situations, it only contributed to the confusion surrounding Church doctrine.
The Cluniac Reformation and Gratian
Between the tenth and eleventh centuries the papacy declined in power, but with the ascension of
Gregory VII to the papal throne in 1073, the power of the pope regained its former status. This was
due mostly to the intervention of emperor Henry III, who "cleansed the papacy" by ensuring the
nomination of German popes who believed in the reforms of the Cluniac Reformation.[17] The Cluniac Reformation originated with the founding of the
monastery of Cluny, in Burgundy. Disgusted with the excesses, simony and laxity of the Church,
Duke William of Aquitaine founded the monastery, gave the monks the freedom to elect their own
abbot and endowed the monastery with a measure of independence from imperial and episcopal
jurisdiction, the preservation of which later became a struggle. This monastery became famous for its
strict adherence to the Benedictine Rule[18], living in poverty,
forgoing worldly pleasures and doing good works. It also became a home of learning, liturgy and
ecclesiastical art. Many of the monks at the mother house of Cluny and in its offshoot abbeys were
literate, and rose to high ecclesiastical offices, paving the way for the reforms of Pope Gregory
VII.
The emphasis on learning that was brought about by the Cluniac Reformation led to the compilation of the Decretum Gratiani at the beginning of the twelfth century (c. 1148). Gratian, who compiled this work, is credited with being the first to teach canon law as an autonomous subject. The systemic and logical ordering of the work is such that it became almost immediately the premier work on canon law. It combined all previous collections of canon law, replacing their decrees, and was supplemented by prescriptions of Pope Pascal II, Pope Innocent II and the Second Lateran Council. Because of its methodical organization, which was intended to resolve the contradictions occurring in previous sources, it remained the standard work on canon law until 1917. Gratian divided the Decretum into three sections: 1) the sources of law (distinctiones and canones), 2) the procedural and administrative matters of the Church, such as religious orders and property (causae and quaestiones), and 3) the rules on the sacraments (De consacratione). Essentially, these divisions comprised an index wherein later scholars could look to find a source by subject. Interestingly, the Decretum was never recognized as an official source of law; it only represented the precedents that had gone before.
The Decretum later became the first volume of a work known as the Corpus Juris Canonici, which comprised as its second volume the Decretals of Gregory IX (c. 1230) and as its third volume the Liber sextus of Boniface VIII (c. 1298). It also included two supplementary collections of private rather than papal authority.[19] This collection of canon law led to a rising interest in canon law, which separated Church authority from secular authority but dealt with the same activities. Thus, starting in the twelfth century, the papal and secular powers contended in earnest for power over the people, leading to interesting alliances and conflicting dictates.
Papal Bulls and Decrees
It would be impossible to list all of the papal bulls and decrees within the confines of this paper; it
would be marginally more impossible to discuss the impact and scope of the bulls and decrees. Of
necessity, a broad paper of this kind must be selective in choosing which documents to focus on.
Accordingly, the following section discusses general principles from selected documents, that have
been chosen to represent some of the major trends in canon law influencing the society of the
time.
Bulls about Papal Authority
It would be erroneous to treat the Church as though it were a unified body. Because its hierarchical
structure was composed of positions of rank and entitlement, and because it was theoretically possible
to move from one rank to another, there was considerable dispute within the Church about the granting
of such positions of entitlement and the privileges associated with them. Several papal bulls dealt with
this matter. One of the most important of these bulls was the Dictatus papae, written by Pope
Gregory VII in 1075. The Dictatus papae consisted of 27 propositions, the most notable of
which were the claims that the pope could depose emperors and that the pope had the right to depose,
reinstate and transfer bishops from their sees. These claims set the tone for papal policy for the next
400 years.
Although the Dictatus papae gave the pope the authority to intervene in the normal electoral process by providing their own candidates for the position of bishop, it was not until 1265 that the papal authority began to regulate elections. This was the year in which Pope Clement IV wrote the bull Licet ecclesiarum, which granted the exclusive right of the papal authority to appoint ecclesiastics to certain posts under certain circumstances. As the circumstances were broad, the papal authority was considerably strengthened.[20]
Unam Sanctam
The Unam Sanctam was issued in 1302 by Pope Boniface VIII, who laid down the mandate
that the Christian faith was above all, and that the head of the Christian faith was Christ and his vicar
representative on earth, the Pope. This meant that the Pope, through the power of the Church had
dominion over all human creatures, including kings:
For when the apostles said "Behold here are two swords" - when, namely, the apostles were speaking in the church - the Lord did not reply that this was too much, but enough. Surely he who denies that the temporal sword is in the power of Peter wrongly interprets the word of the Lord when he says: "Put up thy sword in its scabbard." Both swords, the spiritual and the material, therefore are in the power of the church; the one, indeed, to be wielded for the church, the other by the church; the one by the hand of the priest, the other by the hand of kings and knights, but at the will and sufferance of the priest. One sword, moreover, ought to be under the other, and the temporal authority to be subjected to the spiritual.[21]
These claims caused immediate conflict with both Edward I of England and Philip IV of France, who were already at odds with the papal authority concerning the bull Clericis Laicos, issued in 1296, which forbade the clergy to pay taxes to any secular power.
Unam Sanctam represents one of the major events in the struggle between the secular and spiritual leaders. Despite the rhetoric of Boniface VIII, it is clear that the discretion to wield a "temporal sword", morally sanctioned or not, rested in the hands of secular kings; Boniface VIII was imprisoned and captured and his successor (feeling the need to denounce such actions against the clergy) was poisoned soon after his denunciation. The Church throughout history has been obligated to carefully leaven its spiritual claims on the people with conciliatory overtures towards secular powers, lest it be persecuted in the temporal world. The Unam Sanctam itself has been revised in such a conciliatory act - the phrase "omnis humana creatura" was changed to "Omnes Christi fideles" by Pope Leo X in 1516, softening the scope of papal authority.[22]
Decrees leading to reform
In the fourteenth century, the great movement towards reforming of the Church began. The causes of
the Reformation are too numerous to discuss within the limited scope of this paper, but the basic
concept behind the Reformation was that the Church did not reflect the principle ideals of Christianity
and that it had become corrupt over the ages. Several bulls fuelled this notion, notably the Cum
inter nonnullos, a document written by Pope John XXII in 1323 which condemned the Franciscan
doctrine of apostolic poverty.[23] Other bulls which seemed to
indicate a preoccupation with temporal power included the Laetentur coeli of 1439 which
dictated Roman primacy, and the Haec sancta synodus of 1415 on conciliar supremacy over
the pope.
In 1450, Pope Nicholas V recognized the need to try to reform the Church from within, and from this vision came the documents De Concordantia catholica (1433) and Reformation generalis (1459). These documents analyzed the spiritual reform necessary to redirect the Church back to the primary aims of Christianity. Unfortunately, this attempt at reformation from within met with opposition from those members of the clergy who had used their spiritual authority to bolster their temporal interests; some were even willing to use not only excommunication to promote their well-being, but also armed force! The failure of the central papal authority to reform the Church led to offshoots of the Church which took central tenets of Church theology but discarded the organization.
This period in the history of papal bulls highlights the importance of the individual nature of each pope, and the difficulties of subsequently amending or overturning a papal decree. Since each pope is of equal stature as a vicar of Christ and theoretically infallible, there is no higher human authority which can overrule a papal decree. The practical fact, however, remains that each pope had his own agenda, and each pope had his own views. One of the ways in which the decree might be effectively overruled was to claim that the decree had been misinterpreted; other ways were more dangerous to spiritual authority - such as claiming that the pope was not in a state of grace when the decree was written. This type of thinking was directly related to the disputes leading up to the Reformation, and was embodied in such tracts as the Tractatus de potestate regia et papali of John of Paris, which theorized that church unity resided in the corporate body of its members, not in the person of the pope (also expounded in the above-mentioned synodic bull Haec Sancta).
De Heretico Comburendo and Other "Outsider" decrees
Because of the increasing number of questions and schisms in the Church caused by the variations in
Christian thought, the papacy and the core of the Church became much more protective of its interests.
However, the initial aim of protecting core Church ideas soon expanded into a ploy for power, as
"heretic", previously narrowly defined, became alternately those who did not actively profess the ideals
of the Church, and those who professed religions or beliefs differing from Church beliefs. The
expansion of the definition of "heretic" corresponded with the Inquisition, supported by bulls written
by popes Innocent III, Honorius III and Gregory IX, which continued in varying degrees of intensity
for approximately 200 years. The Inquisition purported to try to save the souls of its victims by using
means which were directly contrary to the basic principles of Christianity but which were theoretically
supported by passages from Scripture:
The inquisitor believed an unrepentant heretic would go to hell, into that fire which Christ said "shall never be quenched:" he tried all means, short of torture itself if possible, to bring the heretic to confession. He hoped the heretic might repent even in the flames, and be save "yet so by fire". For the sake of the vine of Christ, obstinately withered branches should be "cut out, and cast into the fire, and burned"[24]
This protectionism later manifested itself in the passing of the statute De heretico Comburendo (1401), which was an antiheretical manifesto put forth against the Lollards. This statute allowed the imposition of a death penalty for heretics.
The Inquisition was a direct act of the Church against what it perceived to be "outsiders", and in that respect was unusual. However, there had been previous decrees authorizing secular states and peoples to make war upon "infidels and heretics", notably the Quod super his of Innocent III which dealt with the legality of fulfilling vows of crusade to the Holy Land. The spiritual justification for cleansing the world of unbelievers, which incidentally provided the secular benefits of land and property appropriation, played an important role in maintaining the power of the Church, as the Church's sanction was sought after by nations bent on conquest.[25]
The discovery of the New World at the end of the fifteenth century provided new scope for the Church to extend its power. The fact that there were already native peoples residing in the New World who had never heard of Christianity only added to the prestige of the Church; firstly, the new peoples needed to have the word of Christ brought to them by missionaries, increasing the range of Church influence[26], and secondly, the European countries approached the Church for arbitration about their jurisdiction over the New World, since the Church was, at the time, the only body that could legitimately claim a semblance of international jurisdiction. The effect of the latter action was to prompt the issuance of several papal bulls granting jurisdiction to various countries in an offhand and arbitrary fashion, such as the Inter Caetera, issued in 1493. In so doing, the Church followed its tradition of arbitration/mediation which is exemplified in such bulls as the Romanus Pontifex issued by Nicholas V in 1455.
The Decline of Papal Power
With the Reformation, the Renaissance, and the rise of humanism, the power of the Church began to
decline. Technological advancements such as the invention of the printing press made dissemination
of ideas much easier, and to a large degree broke the monopoly of the Church on teaching and
learning. The Church's control, based on inculcating people with its teachings, was no longer as all-
encompassing as it had been, and the concept of the individual began to germinate in society. The
importance of canon law in general society began to decline, and it slowly dwindled back into a more
procedural and purely moral set of rules for the Church. However, some of the attempts of canon law
to resolve certain legal questions - for instance in the fields of international law, legal codification,
and arbitration - had taken deep root in European society. The basic principles dictated by canon law
appeared in various incarnations in the developing policies of European nations and now form part of
the foundation for modern Western legal thought.
Japanese Law vs. Canon Law: Area-Specific Comparisons
Because the medieval period spans centuries of legal thought, pointing at specific incidents or documents as representative of the entire body of Japanese law or canon law is misleading at best and completely inaccurate at worst. Drawing inferences from history is a dangerous matter; each fact may be interpreted differently by a different historian. Nevertheless, history is based on such inferences, as it is impossible to have a fact without corresponding interpretations. The following are some areas in which this historian has drawn comparisons between the impact of medieval Japanese law and medieval canon law, in the hopes that such personal inferences may be of value to the reader.
As discussed in the previous sections, canon law was based on a dual system of individual decrees laid down by the papal authority and decrees adopted by congregations of the Church hierarchy. Ecclesiastical courts would be available to both ordinary laypersons and to members of the clergy, and in less formal circumstances, parish priests would adjudicate canonical matters. The perceived expertise and impartiality of the Church in dispensing canonical justice played a large part in forming societal attitudes towards a structured system of law. In the early portion of the middle ages, the clergy treated dispute resolution as simply another of their duties, but as more people turned to litigation and problems became more complex, a court structure developed complete with legal experts, witnesses, preliminary case analysis, clerks, dossiers and formal complaints. The scope of problems adjudicated by ecclesiastical courts according to canon law expanded to include financial, diplomatic and political matters as well as religious matters. By the thirteenth century, complaints about delay of process (similar to those experienced today!) prompted the papacy to delegate the authority for summary judgment to the ecclesiastical judges.[27] This type of court system became a normal way of life, and society in general came to view the courts as a natural recourse for justice in both technical legal matters and in behavioral and moral matters. The prevailing Western attitude towards law is that it exists for the benefit of the people, resolving disputes and dispensing justice in accordance with the rights of the people.
In contrast to the pervasiveness of medieval canon law, the development of Japanese law had been kept within strict bounds. Whereas in the ecclesiastical court system, certain case precedents were applied as similar situations arose to be litigated, the rigid Japanese hierarchy made submission to the decisions of superiors a matter of course, no matter what similar situations had previously occurred. Indeed, the codes that were written in Japanese law had more to do with the formal procedure of hearing suits rather than the substantive procedure. This is exemplified in the following article from the Kemmu Formulary of the Muromachi Bakufu:
Article 15. The need for hearing suits brought by poor and weak vassals.
The governments of Yao and Shun[28] considered this very important. As it is written, ordinary people treat such petitions lightly, but sages treat them as important. The Shogun must pay special attention to this, and show compassion for his poor vassals. His most important duty is to listen to their petitions.[29]
It is interesting to note that the law itself is couched in terms of duty rather than rights. The concept of objective societal or individual rights is Western in nature and is integrated into the Western legal system; Japan, on the other hand, distinguishes the concept of objective law (horitsu) from subjective duty (giri), which creates a strange balance in the modern Japanese legal system. To the Japanese, resorting to the court system is a much less desirable means to achieve a goal than it is in the West:
...Japanese generally conceive of law as an instrument of constraint that the state uses when it wishes to impose its will...To an honourable Japanese the law is something that is undesirable, even detestable, something to keep as far away from as possible. To never use the law, or be involved with the law, is the normal hope of honorable people. To take someone to court to guarantee the protection of one's own interests, or to be mentioned in court, even in a civil matter, is a shameful thing, and the idea of shame...is the keystone to the system of Japanese civilization.[30]
The concept of giri, or duty towards certain other members of society is informal in that there are no physical sanctions for breaking the duty, yet it so integrated in the Japanese culture that it dictates Japanese behaviour in much the same way that law dictates behaviour in the West. This concept is an inheritance from the hierarchical duties which developed in the feudal period and which has no real analogy in Western societies. It has therefore provided a more fluid, yet still viable alternative to the automatic recourse to the law for behavioral adjustment experienced in the West.[31]
Attitudes Towards Conciliation
One of the bases of canon law is the clear distinction made between right and wrong. This distinction hearkens back to the concept of natural and divine law - only one way is right, and all others are wrong. This sort of attitude understandably coloured the development and application of canon law. Church authorities claimed jurisdiction to regulate most varieties of human conduct, and as the ecclesiastical courts used an adjudication model, the notion of judicial decisions consisting of deciding in favour of one side became prevalent. This is evident in the following passage about the ecclesiastical court system:
Not all lawsuits, by any means, ended with a judicial decisions. Indeed, in the records of local consistory courts most cases typically lack a final decision. Sometimes parties simply abandoned their cases part-way through the proceedings and in many instances they no doubt settled the matter out of court. It is not unusual to find this indicated in a terse note by the recording clerk stating simply "settled peacefully" (pax est) or "by agreement" (concordia est).[32]
Although parties may have chosen conciliation, the court system clearly did not facilitate this method of dispute resolution. The repercussions of using adjudication as the primary method of dispute resolution in canon law is clear - it is only in the past few decades that advances have been made in accepting alternative dispute resolution methods in the West.[33]
In comparison, the Japanese attitude towards conciliation is deeply rooted in the culture, particularly as Confucian and Buddhist philosophy formed such a large part of medieval Japanese law. As examined above, the legal system is viewed with a certain degree of apprehension, and it is natural that other methods of dispute resolution should emerge. The Japanese believe that unanimity signifies harmonious relations among all parties, and work to ensure that such unanimity exists at least on the surface if not at a greater depth.[34] The notion of collective agreement and responsibility is much stronger in Japan than it is in the West, where the emphasis is more on individual rights. Unlike the ecclesiastical court system, the hearing of disputes in medieval Japan generally consisted of the adjudicator hearing the dispute and then dictating what seemed fair, rather than choosing one side over another. The following passage describes the process:
...the critical feature of the traditional process was its "didactic" quality: Conciliation provided an effective opportunity for officials to instruct the parties with respect to their moral and social obligations, not merely their legal duties. During the course of the proceedings, the judge or other conciliator could castigate one side of the controversy or both for failing to live up to traditional moral standards and still show his benevolence by recommending an equitable compromise.[35]
The role that conciliation plays in the Japanese legal system today is therefore currently of more importance than in Western societies, exemplified in the passing of several acts exclusively dealing with conciliation[36]. This could also be due to Japan's homogeneous nature, as opposed to the myriad of countries making up the West which share variations on the same legal systems.
Because canon law presupposes that Christian beliefs are paramount, there is a certain duality of treatment for transgressors of canon law. There is a distinction made between infractions made within the confines of Christian belief and the fundamental sin of not believing in the Christian ideals - or more accurately, in the Christian beliefs as taught by the Church. The former were generally punished through relatively peaceable means, such as excommunication, interdict, suspension from office, fines, confinement, and purification rites (pilgrimages, flagellation, etc.). The latter, being much more serious in the Church's view, could earn the title of heresy, and could merit "relaxation to the secular arm".[37] This involved a large degree of physical punishment, including branding, beating, amputation of limbs, and various savage forms of execution.
Punishment remained a large part in the dispensing of justice in canon law, perhaps due to lingering Old Testament ideas of equating justice roughly with revenge. Up until the eleventh century, there was a certain amount of flexibility in the types of punishments to be imposed:
Canon law characteristically gave judges broad discretion to fit the punishment both to the crime and to the circumstances of the criminal. In part, certainly, this reflected what is sometimes called the medicinal approach to sentencing, that is, a belief that the primary goal of punishment ought to be rehabilitation of the criminal.[38]
The twelfth to fifteenth centuries saw a more aggressive approach, with the use of inquisition to seek out criminals and punish them, the philosophy taking on a more retributive bent with codified punishments. Modern Western views on punishment now consist of a hybrid of the two attitudes - but there is little doubt that punishment is an integral part of Western legal systems and that the emphasis is generally on retribution rather than rehabilitation.
Japanese attitudes towards punishment differ from Western notions in that the Japanese take a more emotional, less fact-oriented view of crime. Western countries will generally take the stance that a crime has been committed and must be redressed, possibly taking into account mitigating circumstances but not allowing them to eradicate the fact of the commission of a crime. The Japanese legal system will look at the underlying causes of the crime and the emotional state of the criminal. The system encourages confession, and allows for a certain degree of leniency in cases where repentance is shown - and the emphasis of the system is more on compensation than on retribution.[39] This is consistent with the values that developed in Japan during the medieval period, particularly the Kamakura era, when restoration of loss was the primary aim of law. Even during the Muromachi era, when laws were more harsh, punishments for transgressions never attained the brutality of European punishments, and they also retained a direct relationship to the crime itself:
Article 28. Concerning the violent seizure of another's harvests.
Criminal investigation and judgment will be carried out rigorously in accordance with precedent, and the details must be reported to the Bakufu. Once the culprit has been identified, one-fifth of his land shall be confiscated. Those who possess no land shall be exiled. The aforementioned also applies to accomplices.[40]
It should be noted, however, that there is another current of thought that runs through the Japanese legal system which corresponds more nearly to the deterrent, dispute-avoidance approach contained in the ritsu-ryo system in early Japanese history. This philosophy considers harsh punishment for lesser crimes to have a deterrent effect:
Condoning a small offense, when repeated, tends to dull the sting of the law, and people may be misled into thinking nothing of violating laws, short of serious crime...In order to nip the culpability in the bud, there is no substitute for a harsh but reasoned punishment...A harsh punishment meted out against a small crime in its incipient stage would deter the would-be offender from larger crimes.[41]
However, this philosophy is not as prevalent in the application of Japanese law as the trend of compensation and repentance.
The conception of law as an impartial system, predicated on the truth and on rights or duties has caused a tendency to think of law as an abstraction, somehow removed from society. It is not. The very fact that different legal systems exist points to the influence of history, culture and society on the application and formulation of laws. The comparison of canon law and Japanese law in the medieval period further underlines this fact, since neither are applied in modern legal systems - yet the influence of both are still felt in today's laws. This brings up a sort of "chicken or egg" question of whether the two medieval systems developed with their respective philosophies because of the difference in peoples, or whether the systems were responsible for the differences we see today. There is no black- and-white answer to this question; the only answer is that everything that we do affects not only the beliefs of contemporary times, but also those of the future. Law comprises not only the values embodied in the actual rules and regulations, but also the cultural attitudes surrounding legal issues. It is therefore necessary to try to view the law in an historical context - or lose the understanding of why the law exists as it does and how it should progress in the future. And without an understanding of the reasons behind the law, what would distinguish humans in this regard from machines automatically and blindly following the dictates of a program?
Brundage, James A. Medieval Canon Law. Longman Group Ltd. (London, 1995)
Bull Unam Sanctam, Course Casebook, History of Legal Thought - CML 3392, Fall 1997
Deanesley, Margaret. A History of the Medieval Church 590-1500. Methuen & Co. Ltd. (London, 1925)
Grossberg, Kenneth A. & Nobuhisa, Kanamoto. (Trans.) The Laws of the Muromachi Bakufu. Monumenta Nipponica, Sophia University (Tokyo, 1981)
Haley, John Owen. Authority without Power: Law and the Japanese Paradox. Oxford University Press (New York, 1991)
Inoue, Mitsusada. Introduction to Japanese History before the Meiji Restoration. Kokusai Bunka Shinkokai (Tokyo, 1962)
McGrath, Alister. The Intellectual Origins of the European Reformation. Blackwell Publishers (Oxford, 1994)
Noda, Yosiyuki. Introduction to Japanese Law. University of Tokyo Press (Tokyo, 1976)
Oakley, Francis. The Western Church in the Later Middle Ages. Cornell University Press (Ithaca, 1979)
Romanus pontifex indubitanter efficitur sanctus: Dictatum Papae 23 in retrospect and prospect, in Ullmann, Walter. The Church and the Law in the Earlier Middle Ages: Selected Essays. Variorum Reprints (London, 1975)
Sansom, George. A History of Japan to 1334. Stanford University Press (Stanford, CA, 1958)
Tanaka, Hideo. The Japanese Legal System. University of Tokyo Press (Tokyo, 1994)
Van den Wiel, Constant. History of Canon Law. Louvain Theological & Pastoral Monographs #5 (Louvain, 1991)
[ ]1 Yosiyuki Noda, Introduction to Japanese Law (Tokyo: University of Tokyo Press, 1976), at 21.
[ ]2 George Sansom, A History of Japan to 1334 (Stanford, CA: Stanford University Press, 1958), at 42.
[ ]3 Mitsusada Inoue, Introduction to Japanese History before the Meiji Restoration (Tokyo: Kokusai Bunka Shinkokai, 1962), at 14.
[ ]4 Confucius said, "If I judge a dispute I cannot do other than what others do, but what I sincerely want is to do my best to see that there is no dispute."
[ ]5 Inoue, op. cit. note 3, at 43- 44.
[ ]6 Interestingly, this code is entirely based on reason rather than emotional, moral or previous legal principles. It attempted to set out precisely how the bushi should proceed to be neutral arbiters.
[ ]7 John Owen Haley, Authority without Power: Law and the Japanese Paradox (New York: Oxford University Press, 1991) at 40.
[ ]8 Haley, op. cit. note 7 at 44.
[ ]9 Noda, op. cit note 1, at 35.
[ ]10 Noda, op.cit note 1, at 37.
[ ]11 I have said that it is unsurprising that
the term "canon" was adopted for two reasons - firstly, the carpenter's rule may have a connection to
Joseph's profession as a carpenter (widely believed to have been Christ's profession before becoming a
prophet), and secondly, because the people who originally formed the large part of the Christian
movement were artisans and tradesmen rather than the abject poor or the higher nobility.
The Greek and Latin terms come from the following text:
Constant Van den Wiel, History of Canon Law (Louvain: Louvain Theological & Pastoral
Monographs #5, 1991) at 11.
[ ]12 For more information about the political and intellectual intricacies of the medieval Church, please see: Francis Oakley, The Western Church in the Later Middle Ages (Ithaca: Cornell University Press, 1979) and Alister McGrath, The Intellectual Origins of the European Reformation (Oxford: Blackwell Publishers, 1994)
[ ]13 The fact that early Christian law related solely to internal matters is unsurprising, given the inability of the early Christians to practice their beliefs openly, let alone regulate any public matters such as property or government.
[ ]14 James A. Brundage, Medieval Canon Law (London: Longman Group Ltd., 1995), at 9.
[ ]15 The Empire had been divided; Gratian was the emperor of the West, while Theodosius was the emperor of the East.
[ ]16 Van den Wiel, op. cit note 11, at 31.
[ ]17 Margaret Deanesley, A History of the Medieval Church 590-1500 (London: Methuen & Co. Ltd., 1925) at 91.
[ ]18 The Benedictine Rule essentially dictated that monks should live in discipline and asceticism, sing choral prayers at certain times, practice renewed piety, pay strict attention to the liturgy, and obey the abbot of the mother house.
[ ]19 Deanesly, op. cit. note 17, at 136.
[ ]20 The circumstances included those
benefices vacated by the ecclesiastic dying at the papal court or while employed by the curia, and
were subsequently extended by later popes.
Francis Oakley, The Western Church in the Later Middle Ages (Ithaca: Cornell University
Press, 1979) at 49.
[ ]21 The Bull Unam Sanctam, Course Casebook, History of Legal Thought - CML 3392, Fall 1997, at 20.
[ ]22 The phrase essentially changed from
being "All human peoples" to "All faithful Christians".
Romanus pontifex indubitanter efficitur sanctus: Dictatum Papae 23 in retrospect and
prospect, in Walter Ullmann, The Church and the Law in the Earlier Middle Ages: Selected
Essays, (London: Variorum Reprints, 1975) at XI 258.
[ ]23 Oakley, op cit. note 20, at 132.
[ ]24 Deanesley, op cit. note 17, at 231.
[ ]25 It should be remembered that the power of God was a very real sanction and threat in medieval times, unlike today where the justification for war is generally based on humanitarian or general moral grounds. However, the underlying temptation of economic power remains the same through the ages.
[ ]26 The debate over the status of the native peoples was carried on in the sixteenth century by such thinkers as Vitoria and Las Casas, and essentially boiled down to whether there was hope for unconverted natives to reach Purgatory, since they would have no hope of Heaven, only of Hell. The moral debate was not about whether conquest was right, but what to do with the peoples after conquest had been achieved. This attitude has shaped native policy in North America even to present day.
[ ]27 Brundage, op cit 14, at 139.
[ ]28 These are virtuous rulers who had previously written philosophical works on governance.
[ ]29 Trans. by Kenneth A. Grossberg & Kanamoto Nobuhisa, The Laws of the Muromachi Bakufu (Tokyo: Monumenta Nipponica, Sophia University, 1981) at 21.
[ ]30 Noda, op cit. note 1, at 159- 60.
[ ]31 Oddly, the Japanese model is arguably
a closer match to the implementation of a natural law than was the canon law system. The giri
code extends to all aspects of human life, and requires flexibility of attitude and adaptability to do
what is right in the appropriate circumstances while remaining in tune with understood principles.
Instead of being bogged down with semantics and codification of natural law, the Japanese simply act
on what is right at the time, in possibly a more humane fashion. The following passage from Hideo
Tanaka, The Japanese Legal System (Tokyo: University of Tokyo Press, 1994) at 293
demonstrates this:
This unwritten law of humanity extends to every phase of Japanese life. When making judgments, courts must turn their attention to such questions as: Was the accused under unusual stress at the time of the crime? Had he suffered an especially embittering childhood? Is he now repentant and willing to lead a good life hereafter? If a court evaluates such factors, it is thought to have acted wisely, or humanely. If it does not, no matter that its verdict
[ ]32 Brundage, op cit note 14, at 134.
[ ]33 In fact, it is only this year that mediation will become mandatory in all civil, non-family disputes in Ontario, a plan that will be phased in and hopefully completely integrated by the year 2001.
[ ]34 Tanaka, op cit note 31, at 291.
[ ]35 Haley, op cit note 7, at 93.
[ ]36 These acts include the Conciliation of Land Lease and House-Lease Affairs Act of 1922, the Conciliation of Personal Affairs Act of 1939, and the Conciliation of Commercial Matters Act of 1926.
[ ]37 Brundage, op cit note 14, at 152.
[ ]38 Brundage, op cit note 14, at 151.
[ ]39 Haley, op cit note 7, at 135.
[ ]40 Grossberg, op cit note 29, at 41.
[ ]41 Tanaka, op cit note 31, at 303.