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In the early 13th century, the warrior elite of Christian Europe subjected their ruling monarchs to a structured legal framework, commencing with the Magna Carta in England in 1215, followed by a series of subsequent treaties across the continent. Concurrently, a sophisticated system of ethical standards and behavioral guidelines emerged, designed to regulate professional soldiers. Military force and authority were thus bound by established legal principles, marking a significant step towards constitutional governance. This parallel development of legal systems in both Europe and East Asia offers a fascinating study in comparative history, particularly regarding the rise of the Samurai and the establishment of the Kamakura Bakufu in medieval Japan.
The Rise of the Kamakura Bakufu: A Parallel to European Legal History
While the narrative of European legal evolution is widely recognized, a strikingly similar transformation occurred in East Asia during the same period. This analogous shift is explored in a forthcoming academic paper by Peter Leeson, an economist at George Mason University. In “Anākī: The Law and Economics of Samurai Organization,” Leeson delves into the genesis of the Kamakura Bakufu (literally “tent government”) in feudal Japan.
Samurai and the Kuge: A Study in Power Dynamics
The samurai constituted a class of highly skilled, specialized warriors, proficient in combat and lethal force, akin to European knights in numerous aspects. However, a key distinction existed: their entitlement to land and its yields was contingent upon the court aristocracy, known as the kuge.
These nobles, lacking substantial military strength, were largely incapable of maintaining effective order throughout much of Japan. Consequently, they employed samurai, not only for military services but also as administrators and supervisors of their domains. The samurai were tasked with collecting rents from tenant farmers, managing estates, and remitting revenue to the proprietors in Kyoto, the imperial capital. The power dynamic between these two groups was inherently imbalanced. In disputes arising between a proprietor and a samurai, judicial authority rested with the proprietor, effectively making them the judge in their own case. Furthermore, the shiki—the rights package associated with land tenure for warriors—were precarious, held virtually at the proprietor’s pleasure and easily revoked. This asymmetry fostered exploitation and injustices, inciting growing resentment among the samurai.
The Genpei War and the Birth of the Bakufu
The kuge maintained this exploitative system for a period, primarily because the samurai faced a collective action dilemma. Effectively challenging the court’s authority required a substantial degree of cooperation across the samurai class. This unity eventually materialized during the Genpei War (1180-1185). Following his victory in this conflict, the samurai leader Minamoto Yoritomo established the Bakufu, situating it in Kamakura. After Yoritomo’s unexpected death, the Hōjō clan solidified the institution’s foundations.
The Bakufu as a Governance Structure
The Bakufu did not govern all of Japan in its entirety. Rather, it functioned as a corporate entity of samurai, offering governance and judicial services exclusively to its members, who were thereby removed from the direct jurisdiction of the imperial court. The kuge government persisted, retaining certain powers, but its authority did not extend to members of the Bakufu. Moreover, not all samurai were incorporated into the Bakufu. Consequently, while the Bakufu exhibited many characteristics of a sovereign entity, its sovereignty was limited to its members. As Leeson notes, “Kamakura-era Japan was a dual polity….’Warrior rule’ properly belongs to later periods in Japanese history.” A European analogy might be drawn to a military order, such as the Templars or Hospitallers, evolving into a sovereign jurisdiction, albeit with a broader membership base. In some respects, the Bakufu’s position mirrored that of the Roman Catholic Church in contemporary Europe.
Gokenin: Membership and Obligations
Samurai who were members of the Bakufu were designated gokenin, meaning honorable housemen. Only gokenin could initiate legal proceedings in Bakufu courts, thus exclusively benefiting from its comprehensive protection and advantages. In exchange, they were obligated to provide military service to the organization and perform routine guard duty at its Kamakura headquarters. Membership was on a voluntary and largely hereditary basis. The Bakufu did not actively pursue membership expansion, partly due to concerns that it would overburden its judicial apparatus and dilute its efficacy, but also because its existing power base was sufficient for its needs. Indeed, significant expansion, undertaken later in response to the Mongol invasions, contributed to the system’s eventual collapse in 1333.
Jitō and Shugo: Positions within the Bakufu
Gokenin could be appointed to two principal roles. The jitō shiki entailed land rights granted by the Bakufu, instead of a proprietor, while maintaining responsibilities to the proprietor. This arrangement provided significantly enhanced security of tenure. The other option was the shugo, a position akin to a constable, wielding diverse administrative authorities, including law enforcement and criminal prosecution capabilities.
Neutrality and Impartiality of the Bakufu
Two pivotal features of the Bakufu’s structure ensured its function as a neutral and unbiased arbiter, both in disputes among its members and between members and external parties. Firstly, the Bakufu itself did not operate as a significant landowner or engage in the administration of more than a minimal number of estates. This meant it lacked any vested financial interest in the outcomes of the legal cases it adjudicated. Its primary organizational objective was to be effective, fair, and to be perceived as such.
This neutrality was reinforced by the second crucial aspect: the voluntary nature of membership. Should the Bakufu become partial or biased, proprietors possessed the capacity to organize resistance or terminate the agreement under which it operated. If the Bakufu disappointed its members, they could withdraw their allegiance, thereby weakening its military strength. Consequently, the Bakufu had compelling incentives to maintain genuine neutrality and objectivity. For instance, in a significant early decision, Minamoto Yoritomo returned territories seized during the Genpei War to the imperial court and the kuge.
The Bakufu’s Judicial System: A Two-Tier Structure
The judicial services provided by the Bakufu to its members were structured within a two-tiered court system. The first tier was the Board of Coadjudicators (hikitsuke), consisting of three to six divisions, typically five. Each division comprised a chairman, three to four senior judges, and several court clerks. Above this was the Board of Councillors (hyōjōshū), acting as a supreme court rendering final judgments, and also functioning as a deliberative assembly. This higher board included the chairmen from each division of the Board of Coadjudicators and senior Bakufu officers – around two dozen individuals in total. The organizational framework was thus straightforward and uncomplicated.
Legal Procedures and Due Process
Legal procedure was similarly streamlined. Leeson elaborates on this, drawing from the Sata Mirensho, a handbook compiled towards the later period of the Bakufu’s existence. The defining characteristic was that the Bakufu operated solely as an adjudicative entity. It did not initiate prosecutions; instead, it provided a forum for disputing parties to present their cases and obtain a binding resolution. The court considered both oral and written evidence, with greater weight assigned to documentary evidence. The process was transparent, ensuring all parties had complete access to opposing evidence and arguments. The final verdict included a comprehensive explanation of the rationale for the ruling and the reasoning employed to reach it. In essence, the system incorporated due process.
The Goseibai Shikimoku and Samurai Common Law
The body of law applied by the court is codified in the Goseibai Shikimoku, a compilation of norms and precedents formulated in 1232. This legal text reveals a common law system evolving organically from resolved cases. These cases both generated and refined precedents, which were then generalized to establish comprehensive and adaptable legal principles. The law thus developed was further refined by the principle of dōri—the samurai community’s inherent sense of justice. The primary objectives of the law were to constrain and govern the authority of the Bakufu and its agents, to curb samurai violence, to ensure orderly inheritance and property transfer, and to prevent procedural abuse by litigants.
Effectiveness and Predictability of the Legal System
Leeson contends that the system was effective, impartial, and predictable. Its efficacy is demonstrated by its success in a market test: it did not lose clients or cases to alternative systems. Its impartiality is evidenced in surviving records of case handling. And its predictability is reflected in the increasing prevalence of out-of-court settlements. This rise in private agreements occurred not due to excessive litigation costs but because precedent made outcomes frequently foreseeable, encouraging parties to reach settlements without further formal action. (Such private agreements still required court ratification to be legally enforceable.)
A Remarkable Achievement in Legal Order
This entire system represented a remarkable achievement. The samurai were, after all, trained combatants. The temptation to misuse their power and engage in predatory behavior must have been substantial, and systemic collapse can occur with relatively few instances of defection. Yet, the Kamakura Bakufu endured for 148 years.
Universal Challenges of Power and Law
This situation highlights a recurring challenge in human societies, extending beyond Japan and Europe. Safeguarding against exploitation and upholding individual rights necessitates the application of force; it cannot always be achieved solely through consensus, social norms, or non-violent sanctions. For such coercion to enhance rather than undermine social stability, those who wield it—often a warrior class—must protect themselves against internal threats while simultaneously limiting their own authority over the broader population. Limiting internal conflict within the warrior group risks the group preying on the rest of society; failing to limit internal conflict courts civil war or similar chaos. Both Japan and Europe achieved some success in addressing these challenges, albeit through divergent paths.
Divergent Paths: England and Japan
In 12th century England, for example, the reign of Stephen exemplifies the second problem, characterized by unrestrained conflict within the warrior class regarding property and inheritance claims. In response, Henry II initiated legal reforms. However, the monarch and his officials then utilized these legal mechanisms to oppress the wider warrior class, as well as other segments of society. Consequently, the barons collectively rebelled and compelled the king to accept being bound by the legal system he administered. This agreement, of course, became the Magna Carta.
Convergence in Eurasia: Coincidence or Common Factors?
Why did this parallel process unfold at opposite ends of Eurasia around the same historical juncture? It could be mere coincidence. Alternatively, it might stem from shared technological and military advancements—particularly, reduced costs associated with certain weaponry and an economic surplus enabling a significant portion of the population to dedicate themselves fully to developing martial prowess. Another commonality was the evolution of a code of conduct, which, to varying degrees, restrained warrior conduct. (Similar developments also occurred in the Islamic world and China.)
The Rule of Law: Not Inevitable but Achievable
Regardless of the underlying causes, this progression was not predetermined. The rule of law is not an inherent or universal attribute of human societies; oppressive and arbitrary governance has been prevalent throughout history. Yet, occasionally, despite formidable obstacles, a stable and relatively equitable legal order can emerge and endure.