CW: Suicide

This episode we are talking about Law and Order--where Ritsuryo system gets its name. We are going to look at some of the underlying theory of how the government was set up and then some of the new laws people were expected to follow and examples of punishment--as well as pardons and general amnesties.

For the blogpost, check out: https://sengokudaimyo.com/podcast/episode-145

Rough Transcript

Welcome to Sengoku Daimyo's Chronicles of Japan. My name is Joshua, and this is Episode 145: Law and Order in the Reign of Temmu

The sound of struggle could be heard, as a man, hands bound behind him, was roughly brought into the courtyard by several sturdy men. They thrust him roughly to the bare ground in front of the pavilion. The man's clothes were disheveled, his hair was unkempt, and his right eye was swollen shut. He was a stark contrast from the four officials standing over him, and even more from those who stood in the pavilion, above, prepared to dole out judgment. A clerk was handling the paperwork at a nearby desk, but the court official already knew this case. He had read the reports, heard the testimony of the witnesses and, to top it all off, he had read the confession. It seems it had taken some coercion, but in the end, the criminal before him had admitted to his wrongdoing.

And thus the official was able to pronounce the sentence with some sense of moral clarity. After all, if this man was innocent, why would he confess? On the other hand, if he were truly innocent, how would he even have come to their attention? Even if he was not guilty of this crime, if he had been such an upstanding citizen, why would his neighbors have accused him in the first place?

One way or another, justice was being done.

We remain—for at least the next couple of episodes—firmly in the reign of Ohoama, aka Temmu Tennou. There is a lot more in this reign, and we are reaching a period where we won't be able to cover nearly as much as previously, so we'll have to summarize some things, but there is still a lot here to discuss. Last episode we looked at what was happening outside of the court. This episode we turn our attention back to the center, and specifically, what law and order meant in Ohoama's time.

This period is called the Ritsuryo period, and as the name indicates, it is characterized by the set of laws and accompanying penal codes, the ritsu and the ryo. Most of these codes are no longer extant, only known to us by other sources which contain only fragments of the originals. But it was this adoption of a continental style of law that seems to most characterize this period. So this episode, we are going to look at the project Ohoama kicked off to establish one such law code —possibly even the first actual—for Yamato, as well as some of the examples of how law and order were enforced.

In Episode 143 we talked about Ohoama's historiographical project, which kicked off in the third month of 681 and culminated in the very chronicles we have been poring over. However, a month before that, we see the start of a different and likely more immediate project, as the sovereign ordered work to begin on a new legal code. This task was decreed from the Daigokuden to all of the Princes and Ministers -- who were then cautioned to divide it up and take it in shifts, since after all, they still needed to administer the government. And so this division of labor began.

The code would take years to compile, so, like so many of the ambitious projects of this reign, it was not quite ready by the time of Ohoama's death in 686. In fact, it wouldn't be promulgated until 689, and even then that was only the "Ryou" part of the "Ritsuryou"—that is to say it contained the laws, the "ryou", but no the penal code, or "ritsu". Still, we are told that the total body of laws was some 22 volumes and is known today as the Asuka Kiyomihara Code. It is unfortunately no longer extant—we only have evidence of the laws based on those edicts and references we see in the Nihon Shoki, but it is thought by some to be the first such deliberate attempt to create a law code for Yamato. We do have an earlier reference to Naka no Ohoye putting together a collection of laws during his reign, known as the Afumi Code, but there is some question as to whether that was actually a deliberate code or just a compilation of edicts that had been made up to that point. These various codes are where the "Ritsuryo" period gets its name, and the Asuka Kiyomihara Code would eventually be supplanted in 701 by the Taihou code—which is one of the reasons why copies of previous codes haven't been kept around. After all, why would you need the old law code when you now have the new and improved version?

This also means that often, when we don't have other evidence, we look to later codes and histories to understand what might be happening when we get hints or fragments of legal matters. The Chronicles often make note of various laws or customs, but they can be sparse on details. After all, the main audience, in the 8th century, would be living the current law codes and likely understood the references in ways we may have to work out through other sources.

As for the Kiyomihara Code, there are further notes in the Chronicles that seem to be referencing this project. Besides the obvious—the new laws that were promulgated through various edicts—we see a few entries sprinkled throughout that appear to be related to this project. First, I would note that in the 10th month of the same year that they started the project, 681, there was issued an edict that all those of the rank of Daisen on down should offer up their admonitions to the government. Bentley notes that Article 65 of the Statutes on Official Documents provides a kind of feedback mechanism via this admonitions, where anyone who saw a problem with the government could submit it to the Council of the State. If they had a fear of reprisals they could submit anonymously.

This entry for the 10th month of 681 could just refer to a similar request that all those who had a problem should report it so it could be fixed, but in light of several other things, I would also suggest that it was at least in line with the ongoing efforts to figure out what needed to be figured out vis a vis the laws of the land. Later, in the 8th month of 682 we see a similar type of request, where everyone from the Princes to the Ministers were instructed to bring forward matters suitable for framing new regulations. So it looks like that first year or so there were, in a sense, a lot of "listening sessions" and other efforts going on to give deliberate thought to how the government should operate.

A few days later in 682 the Chronicles tell us that the court were working on drawing up the new laws, and as they did so they noticed a great rainbow. Bentley suggests that this was an auspicious sign—even Heaven was smiling on the operation.

So we know that there was lawmaking going on. But what did these laws actually look like? This episode we are going to look at both criminal law – crimes and punishments, and gow they could be mitigated as well as those laws that were less about criminal activities and more about how the state itself was to be run.

As I just stated, a lot of the laws and edicts are not necessarily about criminal activities. Many of them are about the government and how it works—or at least how it is supposed to work. Some of this helps to reveal a bit about the theoretical and philosophical underpinnings of this project. That said, I'm not always sure that Ohoama and his officials were necessarily adherents to those philosophies or if they saw them more as justifications fro their actions. And, in the end, does it matter? Even if they weren't strict Confucianists, it is hard to argue that Confucian theory didn't loom large in their project, given its impact on the systems they were cribbing from. Furthermore, if we need to extrapolate things that go unsaid, we could do worse than using Confucianism and similar continental philosophies as our guide, given what we see in the record.

A particularly intriguing record for understanding how that government was supposed to work is a declaration that civil and military officials of the central and provincial governments should, every year, consider their subordinates and determine what promotions, if any, they should receive. They were to send in their recommendations within the first ten days to the judges, or "houkan". The judges would compare the reports and make their recommendations up to the Daibenkan—the executive department of the Dajokan, the Council of State. In addition, officers who refused orders to go on various missions for the court were ineligible for promotion, unless their refusal was specifically for genuine illness or bereavement following the loss of a parent.

This feels like an important note on how the whole bureaucratic appointment and promotion system worked. It actually follows early ideas of the meritocratic bureaucracy that was at the heart of how the government was supposed to work. It isn't quite the same as magistrates roaming the land and seeking out talented individuals, but it still demonstrates a promotion system that is at least nominally about the merit of the individual and not solely based on personal patronage—though I'm sure the sovereign, the sumera no mikoto, or t...