183
〈報
告〉
MyResearch,MySubject
‐ComparativeResearchonReligious
InstitutionandLaw‐
NobuyasuKojima
「マ イ ・ リサ ー チ 、 マ イ ・サ ブ ジ ェ ク ト
ー
筆 者 は 本 年4月1E1よ
宗 教 制 度 と法 に 関 す る比 較 研 究 一 」
り1年
間 、 イ ギ リ ス の ロ ン ド ン 大 学 ・TheSchoolof
Orienta且andAfricanStudies(SOAS)のLawandSocialSciences学
Schoo且ofLaw学
科 にVisitingScholarと
部 ・
し て 在 籍 して い る 。SOASは
英 国
に お け る ア ジ ア 、 ア フ リカ研 究 の 拠 点 で あ り、著 名 な 日本 人 法 制 史 家 が 留 学 し
た 大 学 と して も知 られ て い る。
筆 者 は 渡 英 の 前 後 に 、 こ れ ま で 日本 で 行 っ て き た 浅 草 寺 に 関 す る法 史 学 研 究
お よ び 宗 教 制 度 と 法 に 関 す る 今 後 の 研 究 課 題 に つ い て エ ッ セ ー を 執 簑 した が 、
幸 い に もSOASの
Sciences学
関 係 教 員 等 に こ れ を 報 告 す る 機 会 を 得 た 。LawandSocial
部 の 学 部 長MatthewCraven教
長LynnWelchman教
授 、SchoolofLaw学
科 の学 科
授 に は 、 そ れ ぞ れ 研 究 室 を 訪 問 して 口 頭 で 報 告 を行 っ た
上 で 以 下 に掲 載 す る エ ッセ ー を後 日、提 出 した。 両 教 授 は 筆 者 の エ ッセ ー に関
心 を 持 っ て く だ さ り、 学 部 お よ び 学 科 の 関 係 教 員 に そ れ ぞ れ こ れ を お 送 り く だ
さった。
筆 者 はSOASのTheJapanResearchCentre(JRC)の
し て お り、 所 長 のAngusLockyer博
研 究 活 動 に も参 加
士 に も 同 エ ッ セ ー を 報 告 す る こ とが で き
た 。 そ の 他 、 招 待 して い た だ い たTheOxfordInternationalEncyclopedia
!84
ofLegalHistory(ELH)の
BrookesUniversityの
(QC)に
出 版 記 念 レ セ プ シ ョ ン で 知 遇 を 得 た 、Oxford
法 律 学 科 長MeryllDean教
任 命 さ れ たCardiffUniversityのMarkHill名
CoHegeLondonの
誉 教 授 、University
副 法 学 部 長 のAndrewLewis教
VHumanities't部
のPeterFlugel博
Law学
授 、本 年QueenIsCoullsel
科 のWernerF.Menski教
お 渡 し した 。ELHで
士
授 、SOASのArtsand
、 筆 者 が 所 属 す るSOASのSchoolof
授 等 に も 内 容 を お 伝 え した 上 で 同 エ ッ セ ー を
長文 の
「日本 法 」 に 関 す る 項 目 を 執 筆 さ れ たDean教
授 は、
筆 者 の大 学 院 時 代 の 指 導 教 授 で あ る石 井 良 助 先 生 の 論 文 を 参 考 文 献 と して使 わ
れ て い る 。MarkHm名
誉 教 授 は 筆 者 のSOASに
教 会 に 関 す る 著 名 な 研 究 者 で あ り、AndrewLewis教
ロ ー マ 法 学 者 で あ り、PeterF且ugel博
お け る研 究 課 題 で あ る英 国 国
授 は 法 史 学 の 造 詣 が深 い
士 は ジ ャイ ナ教 の研 究者 で ジ ャ イ ナ法 の
歴 史 に 関 す る研 究 論 文 も執 筆 さ れ て お り、WernerF.Menski教
授 は ヒ ン ドゥー
法 を は じ め とす る 南 ア ジ ア の 法 と宗 教 に 関 す る 多 くの 業 績 を 残 さ れ て い る 。 こ
う し た こ と か ら、 日 英 の 法 史 学 研 究 に 関 す る 有 意 義 な ご 教 示 を これ ら 各 教 員 か
ら い た だ く こ とが で き た 。
な お 、 創 価 大 学 に 留 学 さ れ た 経 験 を 持 つ ク ラ ー ゲ ン フ ル ト大 学 のBenjamin
A.Heinz氏
は 、 祖 国 ドイ ツ に 帰 国 中 で あ る に もか か わ らず 、 メ ー ル で 英 語 表 現
に つ き 貴 重 な 助 言 を くだ さ っ た 。 記 し て 感 謝 の 意 を 表 す る 。
Preface
IwouldliketoshortlyexplainSenso-ji(浅
"Buddhisttemple")whichIhaveresearchedonsofar
oneoftheoldesttemplesinEastJapan.Nowadaysalotofforeign
travelersvisitSenso-ji.Therefore,itcanbesaidthatSenso-jiis
oneofthemostfamousBuddhisttempleinJapan.
Sincemyspecialtyislegalhistoryandreligioushistoryduringthe
Edoperiod,IhopetodescribeSenso-jiduringtheEdoperiod.
ThisperiodisabaseofmodernJapan.Thefamousanthropologist
草 寺,"ji"meaning
.Senso-jiis
My research, My subject
John F. Embree described,"The
and cultural
consolidation
the foundation
two and a half centuries
under
the Tokugawa
on which modern
Japanese
based, and the roots of practically
values and social attitudes
daimyo." (The
Japanese
/85
regime
of peace
produced
social organization
all modern
Japanese
is
cultural
can be traced back to the days of the
Nation —A Social Survey —; Rinehart
&
Company, Inc.,1945, P.43)
Afterward,
I would like to present
subject under four headings
conducting.
my subject. I will describe
and the research
The table of contents
my
that I am currently
is as follows.
Preface
1. My research
1-1. The constitution of Tokugawa Japan (Shogunate)
I -2. The history of Senso-ji
I -3. Senso-ji in the Edo period
I -4. The structure of Senso-ji and the Buddhist temple's law
II. My subject
ll-l. Jurisdiction
11-2. Religious and Secular
11-3.Sources of the law
11-4.The Church of England
Ill. Research that I am currently conducting
Epilogue
I . My research
I -1. The constitution of Tokugawa Japan (Shogunate)
Because Tokugawa
temple
Buddhist
was
able
temple
administration
Japan
to
had
though
was not unified country,
exercise
some
the
power
these
were
power.
For
of legislation,
considerably
the Buddhist
example,
the
judiciary
and
limited.
Buddhist temple was able to enact the Buddhist temple's
Jiho) . Therefore,
I have researched
The big
law (
on the Buddhist temple's
law.
/86
It seems
that
constitution
this
research
enables
the
clarification
of
the
and the system of law in the Edo period.
In the Edo period the country was closed to foreign countries,
so
that we may think that it would had been easier to unify the state.
However, the feudal state was not a unified country
Orient. In the Edo period, the Japanese
the
unification
of the
state
However, the centralization
had
even in the
state was a feudal state, so
not
been
accomplished
yet.
in the Edo period had advanced
more
than in the Middle Ages, so that it seems
power which the Buddhist
former age. The unification
that the autonomous
temple had was smaller than in the
of the state was accomplished
in the
Meiji era.
Though there were limits for the big Buddhist temple, the temple
in the Edo period was able to enact the law originally.
The law
enacted
temple's
by the Buddhist
law. The Buddhist
temple's
law, civil law ,criminal
able to appoint
temple is called
by constitutional
law and so on. The Buddhist temple was
TO Buddhist priest, bonze)
The Shogunate
law was composed
the clerical monk (WM
the monk commited
the Buddhist
and punish the monk ({U
who committed
crimes. Of course, when
secular crimes, the Shogunate
punished
him.
allowed the Buddhist temple to create laws as long
as it didn't affect the Shogunate's
interests.
I - 2. The history of Senso-ji
Senso-ji is one of the oldest temples in East Japan. It is told that
Senso-ji was built in the year 628. Therefore,
Horyu-ji
(i
) which is the first World Heritage
However, actually, researchers
during the Nara era (1tf
Senso-ji
is one
Senso-ji is older than
of the
Site in Japan.
are insisting that Senso-ji was built
710^-784 years). Still, we can say that
oldest
temple
in Edo.
This
temple
is
My research, My subject187
dedicated
to the Kannon
Compassion)
The
qua
Avalokitesvara,
which was discovered
pronunciation
of
in the Sumida-river
"Kannon"
is
pronunciation
of "canon".
Senso-ji
Tendai sect of Buddhism (XG).
In the Kamakura
era (*AIM,
the Bodhisattva
heard
(I;lif:1111).
just
is a Buddhist
of
like
temple
the
of the
the monks of Senso-ji went to
Kamakura to pray for the souls of the dead. In the age of wars (!l1Ji
Oft),
Senso-ji was subject to the House of Hojo in Odawara
(/J\
FNIg:IL 1E). In the Edo period, Buddhist temple was subject to the
rule of Ieyasu Tokugawa.
0)
noticed
Senso-ji
to
the history
control
Consequently,
built by
to
head monk Tenkai
of Senso-ji and he would
Edo
commoners
who
the Shogunate.
some
Tenkai
served
worshipped
degree.
For
example,
Senso-ji
principal image (*
honzon ), the religious
Buddhist temple system and so on.
use
Kannon.
which was
as the chief
Senso-ji was able to defend
(X
eventually
Senso-ji was put under Kan'ei-ji (,jc),
Kan'ei-ji . However,
then
The Shogunate's
priest
of
its tradition
by
can
retain
observances,
the
the
I -3. Senso-ji in the Edo period
First of all, the basic structure
the earlier era. Additionally
by the Shogunate
of Senso-ji was continuous
from
Senso-ji was enfeoffed
with a domain
and was able to rule the branch
temples. In the
precincts of Senso-ji there were 34 small temples which were
included in Senso-ji. In these small temples there were the chief
priest who were subject to the chief priest of Senso-ji. But in 1740,
the Shogunate appointed the priest of Kan'ei-ji to Senso-ji in order
to control Senso-ji strongly. After that the priest of Kan'ei-ji served
as the priest of Senso-ji concurrently.
used the Buddhist
temple to strengthen
I think that the Shogunate
its own power,
because
188
the
legitimacy
succeeded
of power
was weak though
in the integration
A religious
authority
of the nation
the Shogunate
had
in military power.
was able to be maintained
generally
in the
Edo period though the Buddhist temple was under the rule of the
Shogunate
religion
power.
We can
was very
Shogunate
Buddhist
large
entrusted
temple.
the Shogunate
say that in this age the role of the
in ruling
the people.
the management
Then, considerable
For example,
of family register
autonomy
the
to the
was admitted
by
as long as the Buddhist temple played such roles.
I -4. The structure of Senso-ji and the Buddhist temple's law
Next, I would like to describe the case of Senso-ji concretely.
two deacon
({4
were chosen
The
Yakusya) of the whole of the temple (--11.1Issan)
by elections
from among the chief priest of 34 small
temples. The chief priest of 34 small temples voted in the election.
The chief priest of 34 small temples was chosen
monks
final
in Senso-ji in many cases. Though
appointing
power,
Sensoii
was able
matters
concerning
such
to hold
to the
intention
monk's
Kan'ei-ji maintained
of Senso-ji
meetings
temple
from among the
was valued.
and decide
management.
a
The
various
deacon's
election was done in the meeting, too.
As it was
mentioned
Buddhist temple's
above,
Senso-ji
was
law. I will briefly describe
able
to enact
the
it. At the latter term
of Edo period, the monks were in debt to the wealthy merchants
because
they were generally
and maintenance
poor by reason
of the Buddhist
temple
of the construction
and so on. Sometimes
they were not able to pay back their debts. As a result, they would
come to trial. The Shogunate
as
possible
primarily.
though
Therefore,
the
left such lawsuits to Senso-ji as much
Shogunate
should
Senso-ji had to legislate
have
tried
them
the law of debt. In
My research, My subject
The Diary of Senso-ji (PY,recorded
as "the
/89
Q atd Senso-ji-Nikki)
Buddhist
temple's
such a law was
law of debt"
(tf i 41=4
Shakkingin-Jiho).
The chief priest of 34 small temples were ordered
lot of money
by the chief priest of Senso-ji. Moreover,
debt that the deacon
witnessed
corporation,
not to owe a
was
only the
and the union of the Buddhist temple
admitted.
Because
the
Buddhist
temple
had
was
a
the debt of the Buddhist temple and the debt of the
chief priest were distinguished.
Therefore,
not able to inherit the personal
of the Buddhist temple
the Buddhist temple was
debt of the chief priest. The union
had always to watch
out each Buddhist
temple.
The Buddhist
temple's
law of punishment
was not recorded
in
The Diary of Senso-ji. However, the articles to which the priest was
punished were recorded in this Diary. Though it was not codified,
there is a customary law concerning with punishment in Senso-ji .
The monk was punished if he disturbed the peace, the religious
observance,
and
the order
monk was light generally.
in Senso-ji.
legal
punishment
Senso-ji could create
of the
In many cases the monk was confined
to his temple. A certain researcher
the
The punishment
as an
treated that it was not so much
administrative
the Buddhist
temple's
penalty.
Therefore,
law for both of civil
and criminal sides.
II. My subject
I would
mentioned
like
to describe
above.
my
subject
based
on
my
research
190
II-1. Jurisdiction
I want
to compare
In Europe
there
to research
the
the
Buddhist
temple's
law with the
are a lot of researches
canon
on the
law of the Church
Because
the
Church
of England
between
the
nation
and
thinking
about
the
relation
the
has
religion.
between
canon
the
in particular.
a unique
It serves
law.
law. I hope
of England
built
canon
relationship
as a reference
nation
and
the
in
religion
in
Japan.
The
ecclesiastical
suits
but also
suits
concerning
try
the
court
secular
could
suits,
ever
for example
contracts.
secular
have
In Japan
suits.
I hope
money
was
tried
the
the
not
only
divorce
suits
Buddhist
to research
why
religious
and
temple
there
the
couldn't
was
such
a
difference.
Furthermore,
Europe,
want
the
II-2. Religious
should
and
the
background
secular
the
between
such
a
trial
ages
of Japan.
in
I
of this difference.
difference
matter.
that we should
clarify
modern
for
and Secular
consider
relationship
think
necessary
but this was not so in the former
to clarify
We
generally
problems.
between
the
we
should
Moreover,
the
church
research
trials
on the
I want
and
history
to research
religious
consider
the
secular
of the
them
matter
the
trials.
Roman
profoundly
I
law to
in the
future.
We should
say that
the
the religious
matter
or the
the
religious
religious
before
matter.
matter
the
difference
and
separation
was
very
matter
But
the
event
concerning
the
doctrine
would
be
in the Buddhist
temple
would
be
actually,
secular
of religion
complicated.
the
matter
and
For
difference
between
is ambiguous.
politics
was
example,
Especially,
established,
we
the
can't
this
clearly
My research, My subject
separate
the
punishment
commandments
to a monk.
(A'4E)— a monk's
commandments
in the
Edo
secular
power
On
the
became
I want
Ritsuryoho).
Buddhist
of Japan,
temple
temple
was
able
punishment
of the
in the
in the village
in the
the
relationship
matter.
religious
on
thinking
religion
commandments
not widely
reserached
important
when
Nobles
enacted
law .
the Buddhist
Kugeho , tit-15
for the monk was
for the layman . Moreover,
the Buddhist temple's
law
of the autonomy
about
provided
Buddhism
Islamic
of the
law
for
based
we should
to clarify
the
(a.-?.yy Shari'a)
the relationship
because
Shari'a
on
the
research
Buddhist
that I am
between
the law
is a system
of
in Islam.
are
in Japan,
considering
temple's
(s.`ci-
Therefore,
commandments,
the
Court
of punishment
was
of the
It is the
Buddhist
here.
Buddhism.
in when
of the
The germ
of the
interested
religious
the
discussion
research
to enact
law
law deeply.
the
to
of punishment
temple's
temple's
law based
of one
the Imperial
the system
commandments
the
— was
intervention
public
the secular
sources
has appeared
Buddhist
the
the
like
to the misdemeanor.
commandments
and
that
and
the
from the system
Buddhist
on
matter
However,
concerning
Nyobon
temple.
law as the law of the Court
different
against
secular
the
secular
of the law
times
temple's
of
the prototype
to contemplate
In ancient
the
with a woman
also the
is a result
I would
the religious
and
the prohibition
and
it is said
Japan.
II-3. Sources
The
hand,
Ages
between
This
Buddhism
relations
in the Buddhist
temple
Middle
the
sin of having
period.
the
Concretely,
of the Buddhism
other
Buddhist
of
191
the
In this relation , the law and
unified in Shari'a . Shari'a is still
but it would
sources
appear
of the
that Shari'a
law
because
is
in
192
Shari'a the Qur'an is assumed
to be the most important
source of
the law.
11-4. The Church of England
Firstly,
leyasu
Conrad
D. Tatman
and described
between
the Tudor
compared
the difference
to compare
the reign
power of the state.
Secondly, I want to research
between
the secular
courts
sixteenth
to seventeenth
of Henry VIII with
Senate
researches:
of control
(Politics in
and
the
of
in the relationship
the ecclesiastical
in terms
reign
on religion by the
the transition
century
courts
of the change
from
in the
system.
In finding books that describe
the
before
system
University Press, 1967, PP. 239-241) .
Tokugawa Ieyasu from the viewpoint
constitutional
in the constitutional
period and the Edo period
the Tokugawa Bakufu; Harvard
I want
Henry VII with Tokugawa
House
Library,
the English ecclesiastical
University
of
London
courts in
(in
recent
Ecclesiastical Law, 3rd ed., Mark Hill, Oxford University
Press, 2001. The Rise and Fall of the English Ecclesiastical Courts,
1500-1860; R. B. Outhwaite, Cambridge
University Press, 2006, etc),
I will start with the research
books. I will take care to
in these
point out novel points taken from these books.
III. Research that I am currently conducting
There
are numerous
SOAS Library.
In
western
particular,
language
works
I have
been
on Japan
listing
the
in the
books
describing the legal and religious history in the Edo period written
in English in these works. Moreover, I have commented
and
referred
to these books as much as possible.
I have checked
the
My research, My subject/93
chapters
to which these books correspond
list in chronological
order.
useful for future research
clearly, and compiled
I am convinced
a
that this list will be
on the Edo period at the SOAS.
Epilogue
Although
countries
history
the comparison
of the history
is indispensable
to
and
conducted
culture
in Japan
like to research
understood
features
island
of Japan,
clarify
and culture
the
such
characteristics
research
on
how the
Moreover,
state of Japan
convinced
of the
necessarily
as much as it might be. Therefore,
history
and
culture
such as a history of monarchism
modern
is not
in the U.K. In the U.K. and Japan,
nation.
of foreign
it is said that
has been
that the comparative
very worthy subject.
interested
politics
in parliamentary
there
influenced
of the
of the
by the U.K. I am
of Japan
and the U.K. is
the political
in graduate
that
is
are shared
and the status
Firstly, I investigated
course
of Japan
the construction
research
the U.K. during my master's
I would
history
school.
values
of
I became
discussion
and
gradual reform of institutions. As a result, I felt that Japan where
those traditions were lacking would learn by following the U.K.
It was the great writer Soseki Natsume
(1iE
L-i) who, during the
Meiji Era journeyed
alone to study in the University of London, so
insightfully pointed
this out. Through his novel Sanshiro (r
he laid forth a criticism, saying that "The thoughts
repeat the activity of 300 years that appeared
1111,71fj)
of the Meiji era
to the history of the
West in 40 years"(ti1YAoa! !GI YI`of`aG
GGttt,tEI4=~n!i1
C~~I
-F-*--vg . i . L "c
) . Influenced by Soseki's novels and essays, I
began
to consider
in Japan.
the meaning
I investigated
and problems
of the modern
the history of the former modern
age
ages of
194
Japanbycenteringonthelawandthereligioninmydoctoral
courseingraduateschool.Ifurtherresearchedtheseproblemsat
TheInstituteofOrientalPhilosophy(東
洋 哲 学 研 究 所)whereIam
currentlyservingasthetrustresearcher.Hereafter,Iwouldliketo
doaformalresearchontheU.K.anddeepenunderstandingo1'
JapanthroughBritisheyes.
(29/05/2009)
(本学 法学 部 教授)
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