Conflict between the Meiji Written Law and the Traditional Common Law at the Rural Community Level : A Court Case concerning the Ownership of Land in a Kanagawa Village, 1880

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  • 明治「近代」法制の導入と伝統的農村慣習法 : 家産所有と家長権の事例研究
  • メイジ キンダイ ホウセイ ノ ドウニュウ ト デントウテキ ノウソン カンシ

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The Meiji Government reorganized the Tokugawa baku-han Regime into one nation state. But this integration procedures did not easily come to an end and often caused conflicts between people. The aim of this paper is to clarify this process by investigating a dispute over and ownership of land between the village headman and one of the peasants. Under the Tokugawa Regime the social order within a rural community had been maintained by the common law which differed between localities. Even the contracts about the ownership of land were drawn by the tacit consents among the village dwellers and oral promises without written documents. The common law system was interwoven with the written law systems proclaimed by the Tokugawa and hanshu (landlord) of each province. The written law system established by the Meiji Government was, however, expected to be applied to all localities uniformly. And the written law system required written documents in most cases. Thus the people with writing ability obtained a more abvantageous position against illeterate people. Meanwhile the common law still continued to be effective within the rural community as customs, therefore the treaty between village people was still concluded by oral promises and it became some times difficult to defend themselves against people outside the village community. The people who actively adapted to commercial economy inevitably made contracts with people outside their own community and were naturally trained in legal procedures of the Meiji legal system. The people in this class became to occupy a ruling position in the rural communities.

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