Legal Hitory Review vol.58 i2008j
Summaries of Articles


An essay to reconstruct the redaction of al-Shaybani's Asl :
an analisys of a Cairene manuscript
by Hiroyuki YANAGIHASHI
key words : Islamic law, al-Shaybani, Asl, Legal Text, Rent, Employment
 
        Calder writes that the As.l in the present form was "the end-product of a lengthy period of development, involving accumulation of basic materials, successive redaction," and so on, before it was attributed to al- Shaybani, one of the founders of the Hanafi school of law, as was usually the case with juristic texts dating from the third/ninth century. Hallaq, who extensively examined works of legal sciences (ilm usul al-fiqh), remarked that the jurists active in the ninth century often attributed their own opinions, which they developed on the basis of those of the founders of their schools, to the founders themselves, with the result that their opinions were blended with those of the founders in an indistinguishable way. However, neither Calder nor Hallaq clarifies how and when the jurists of that period began to blend their opinions with those of the founders of their school.
        This articles seeks to shed light on the process by which such blending of legal doctrine was undertaken by analyzing a manuscript of "the book of locatio" of al-Shaybani's Asl, some chapters of which appear to reflect the first phase of editing that led eventually to the final version of the Asl. My contention is that these chapters point to at least three stages of organic growth of the text.
        (1) Some chapters consist uniquely of the original Asl, i.e. the statements of al-ShaybaniD
        (2) In the next stage the pupils of al-Shaybani added to the original text new materials, which they put in a detached text. It is worth remarking that they tried to distinguish these new materials, which they deduced mostly from the doctrine of the founders by way of systematic reasoning (qiyas), from the latter's doctrine by using the phrase like "according to qiyas from the thesis of Abu Hanifa, Abu Yusuf, and al-Shaybani."
        (3) In the third stage his pupils or the following generation(s) incorporated into the original text the materials produced during the second stage and their own materials. This stage ended toward the end of the ninth century.
        The transition from the second stage to the third stage may point to the general attitude of the Hanafi jurists of that period to regard the totality of the founders' doctrine and that which derived from it as the Hanafi doctrine, rather than that of Abu Hanifa and/or his immediate pupils.
       


On the Meaning of Reformation Conception of Administrative Litigation System in 1920fs : A Roll of the Court of Administrative Litigation in Temporary Council of Legal System
by Hiroshi ONO
key words F the Administrative Litigation Law, Court of Administrative, Litigation, Reformation of Administrative, Litigation System, Temporary Council of Legal System, Reformation Principles of the Administrative Litigation Law
 
        The purpose of this study is to make clear the historical meaning of the reformation principles of the Administrative Litigation LawiGyouseisaibankaiseikouryouj and the role of the Court of Administrative Litigation which had great influence upon its decision. Most former researches which dealt with the history of administrative litigation system in modern Japan have aimed to elucidate the features of Meiji National System through this system. Therefore, they have centralized their interest on the enactment process of the Administrative Litigation Law (Gyouseisaibanhou). Moreover, many of such researches have regarded the Court of Administrative Litigationigyouseisaibanshoj as ga past relich because administrative litigation system was changed dramatically through the enforcement of the Constitution of Japan (1947).
        But, I place a special emphasis on the fact that the reform bill of the Administrative Litigation Law (Gyouseisoshouhouan) was mentioned as one of the basic materials at the time of the enactment on the Act on Special Provisions of Administrative Case Litigation (Gyouseijikenso- shoutokureihou) and the Administrative Case Litigation Law (Gyouseijikensoshouhou) .Therefore, this study aims to elucidate the content and the historical meaning of the reformation principles of the Administrative Litigation Law that underlaid the reform bill of the Administrative Litigation Law in order to open up a new field in the history of administrative litigation system in modern Japan. In addition, this study takes notice of the role of the Court of the Administrative Litigation for its decision and analyzes the background that that kind of reformation conception was created at the Court of Administrative Litigation.
        As a result, this study makes clear the fact that the Court of Administrative Litigation requested the independence from the other administrative bureaucracy and the above\mentioned reformation conception was created in such movement. And, even fortunately, the reformation conception of the Court of Administrative Litigation was supported from the citizen who demanded the democratization of political system, furthermore obtained the cooperation of attorneys and jurists, and finally reached the completion of the reformation principles of the Administrative Litigation Law.
        But the other administrative bureaucracy strongly opposed the reformation principles of the Administrative Litigation Law that designated the right relief and the administrative control, because it was thought that the conception of the reformation principles of the Administrative Litigation Law became an obstacle to the new policy of national integration (Fusenchianijihoutaisei) which the Department of the Interior planed.


The Structure and Characteristic of Eizenryo cUin Japan and Tang
by Youichi SOGAWA
key words F the comparative study of Ritsuryo (Luling) system in Japan and Tang, Eizenryo (the chapter of construction and manual industry), Tianshengling V(the law of Song dynasty), restoration of Tangfs provision, procedure of report
 
        This paper is trying to do the comparative analysis between two Eizenryo ; in Japan and Tang. This consideration is done by the comparison of the chapter provided about the construction and manual industry through examination of Tianshengling. The Eizenryo provided the important procedures especially in the restored 3rd, 4th, 12th and 13th articles. Then, the comparative analysis is tried on the restoration of Tang's Eizenryo, and comparison with Japanese that.
        It is clear that the restoration 3rd and 4th articles provided the principle of report to Shoshosho . And the restoration 12th and 13th articles provided the procedure of report and obtaining permission about labor force, building, manufacture and repair in the capital and provinces. The report of those items, is specified over many times in Tang's system.
        As known, the missing pieces of the restoration 3rd are quoted in Senkoritstu of gToritsusogi `ch, this article is in order to avoid military danger. That is, we should understand that Eizenryo were closely concerned with the both sides of the financial and military. As opposed to such a Tang's system, it is thought that the principle of the report of work force for all the cases did not exist in Japanese Eizenryo. And the procedure in Tang's Eizenryo which obtains permis- sion after report is deleted in Japanese. This modification was from difference of the fiscal structure. It depends on following reason in the difference of fiscal structure. Tang's fiscal decision system was the feature of concentrated organization. On the other hand, Japanese fiscal decision system was the feature of decentralized organization. Especially, in case of the building, manufacture and repair in the provinces, this report was not provided in Japanese system, as Tang' system was provided. In Japan, only procedure of post facto report is made.
        Thus it is understandable that Japanese system was adapting to the specified feature of fiscal structure. Although a large scale modification is not found, it is thought that the reception based on a compilation plan of Japan took place.


Das Fürstengericht im deutschen Hoch- und Spätmittelalter
By Masaki TAGUCHI
key words : Fürst, Kurfürst, Hof, Gericht, Privileg
 
        Als Privileg des Reichsfürstenstandes im Hoch- und Spätmittelalter ist das Vorrecht zu nennen, dass ein Fürst vor dem Gericht im Herrscherhof nur von den Fürsten als seinen Standesgenossen geurteilt werden sollte. Dieses sogenannte Fürstengericht untersucht der vorleigende Aufsatz anhand der Urkunden gründlich und er bemüht sich damit die Bedeutung des Fürstenstandes in der Entwicklung der deutschen Reichsverfassung zu klären. Die Teilnahmen und Urteilsfindungen der Fürsten häuften sich als Gerichtspraxis in der ersten Hälfte des 13. Jahrhunderts, vor allem von den 1210er bis zu den 1230er Jahren. Nachdem diese Praxis einmal unterbrochen wurde, erschien sie in der zweiten Hälfte des 14. Jahrhunderts unter Karl IV. wieder, und zwar in der reduzierten Form mit dem kurfürstlichen Kern. Aber dieser zweite Aufschwung neigte am Ende des 14. Jahrhunderts zu lähmen. Im 15. Jahrhundert begannen dann die anderen Fürsten als Kurfürsten die Zusammensetzung und das Verfahren des Fürstengerichts juristisch zu erörtern und das führte zu der Etablierung des Fürstengerichts im strengeren Sinne. Aus dem hier geklärten Verlauf ist zu zeigen, dass der Reichsfürstenstand nach seiner Abschliessung erst sehr spät zur Reife kam und dass die deutsche Reichsverfassung sich vom Hoch- zum Spätmittelalter noch nach langem Hin und Her entwickelte.


A trend of the research on the interdicts in the ancient Roman LawFone branch of the legal history concerning the administration or government
by Takeshi SASAKI
key words F ancient Roman Law, interdicts, administration, government
 
        In contrast to "actio", the interdicts in the ancient Roman Law are considered to be administrative, but in the some recent trends of the research on the interdicts, one is toward the regulations or rules as an administrative or governmental action, referring the interdicts as material, on the basis of the archeological and historical results which were gained not from the centralistic view of history but from the regional one.
        On a parallel with the Roman Law study itself, in which the jurisprudence and the historical studies intertwine, this trend consists of two kinds of research ; one clarifies the contents and the procedure of the protection by interdicts, and another analyses the situation of Roman administration with the intention of studying legal history. Therefore, by assimilating the results of various sciences related to legal history, the prospects of the research on the interdicts as to new issues and methods would be good.