鎌倉幕府の庭中
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概要
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The research on the system of litigation under the Kamakura Bakufu has been accumulating since before the War in a very well arranged fashion of comparing and fitting this system within the framework of modern systems of litigation. However, in this tendency one can descern no attempt by researchers to grasp medieval society as a wholistic phenomenon. In this essay the author investigates the Bakufu's way of administering justice by concentrating on the characteristically medieval institution of teichu (庭中), or directly petitioning the Bakufu's court from "within the garden." The accepted explanation of teichu had heretofore been offerred by the legal historian, Ishii Ryosuke, who defined the institution as a remedial procedure classed along with appeals over the generally allowed three petitions (osso 越訴) for reduesting a re-trial on grounds of errors in legal procedure by the court. However, through an investigation of petitions delivered through the procedure of teichu to the Bakufu prefects (tandai 探題) in Kyoto (Rokuhara 六波羅) and Kyushu (Chinzei 鎮西), the author was able to establish that rather than a request for redress in procedural errors, teichu was actually a form of directly filing petitions with the court's clerk (hikitsuke tonin 引付頭人). Therefore based on this evidence combined with consideration of the "spacial order of things" within the architecture of the Bakufu headquarters in the Kanto plain, the term teichu can be thought of as expressing the action of directly petitioning the Bakufu's court verbally from the environs of its garden. Next in consideration of the two important elements of teichu, the garden and verbal communication, the author was able to establish that originally filing (shinsei 申請) of petitions was done orally and that the stage for this oral presentation was a garden. That is to say, the origins of this garden-staged, orally-presented petitioning procedure of the Kamakura Bakufu are to be found in the classical period when such filing procedures were of an everyday nature and also when litigation procedures possessed a magical aspect related to the world of mythology. Also within the Bakufu trial system written oaths (kishomon 起請文) served an extremely important function as court evidence, showing that this trial system ultimately rested on the magical force of native deities (kami 神) and the buddha. In the Muromachi period, as well, this aspect is present in such facts that during teichu of persons accused of causing the illness of the Tenno (天皇) by witchcraft, the procedure of testimony by boiling water (yugisho 湯起請) was carried out to determine innocence or guilt. The custom of teichu, the symbol of classical magic which lay within the medieval trial system, survived until the Sengoku period at which time Oda Nobunaga, the herald of things to come in the Early Modern era, finally put an end to the mythological aspects of legal procedure, thus marking an important turning point in the history of Japanese jurisprudence. It is for this reason that the view of a medieval trial system which fails to take into account the important element of classical magic should be revised.
- 1983-12-20