Ashikaga Ascendancy and the Kenmu Formulary

The first shogunate was brought down in 1333 by an emperor, Go-Daigo (1288-1339), who was unhappy with what he perceived to be the warrior regime's usurpation of imperial authority.

On his second attempt Go-Daigo triumphed, drawing support from dis­gruntled warriors, resentful of the Kamakura elite's autocratic ways and deafness to its followers' economic straits.^[227] The fall of the shogunate led to a brief restoration of direct imperial rule, which quickly revealed the winning coalition's diverse (and incompatible) aims: the emperor wished to negate warriors' autonomous political role as keepers of the peace, subordinating them once again to the directives of the court;^[228] the warrior leaders had participated in the uprising in hopes of replacing the regime in Kamakura with another one - also led by warriors - that would be more responsive to their interests.

The fraught circumstances of the second shogunate's birth - its labile claims to a legitimate mandate - had a marked influence on the shape taken by the new regime's institutions and on the laws through which it defined itself.Ashikaga Takauji, who would eventually be named shogun, issued the Kenmu Formulary in 1336, modelling it on the code enacted by the Kamakura regime a century before. The promulgation date is telling, for this ‘shogunal' code was produced at the time of Takauji's military occupation of Kyoto, two years before being granted the office of shogun by a puppet emperor he himself would place on the throne.

The Kenmu Formulary explicitly invokes the Joei Formulary in its pre­amble - a nod that serves to establish the issuing authority's continuity with its predecessor despite its lack of legal sanction. Based in Kyoto instead of Kamakura, the new Ashikaga regime would go on to assert far broader governing prerogatives than its model; over the course of the fourteenth century its legal pronouncements would diverge substantially from their thirteenth-century precedent. Yet the Kenmu Formulary was meant to be a political manifesto as much as a law code. Signalling Ashikaga Takauji's first attempt to position himself as the heir to a century of warrior public authority, the articles are light on substance, more attentive to the weight of past ideals than intent on putting Takauji's imprint on governance. Conspicuous is the code's emphasis on morality (practising frugality, abstain­ing from drinking and carousing, returning improper gifts, emphasising decorum, rewarding uprightness and loyalty). With no hint of irony, the usurper's first legal document calls for an end to lawlessness - an appeal that, combined with articles prescribing the return of vacant lots to former owners and forbidding the commandeering of private residences, strongly hints at the regime's attempt to continue another of Kamakura's legitimising strate­gies: the suppression of its own supporters' private recourse to force.

Yet the provisions, as stated in the Kenmu Formulary at least, had no teeth. Article 3, on ‘The Need for Suppressing Violence', proclaims: ‘Breaking into buildings in broad daylight, burglary at night, murder, and highway robbery cause the cry for help to be heard incessantly. The Shogun must take strenuous measures against these crimes.'^[229] This is more of a lament than a legal provision; it establishes moral credentials rather than prescribing spe­cific action. The violence, unleashed by Takauji's very conduct, may still have been too widespread for the fledgling regime to commit to eradicating it in short order. Indeed, in the formulary's concluding clause, the legal expert charged with drafting the document warns: ‘At the present time hostilities have not yet ceased, and caution is of paramount importance.'^[230]

Throughout its two-and-a-half-century existence, the regime remained more concerned with negatively outlining the violence it deemed unaccep­table than with positively establishing the scope or specifics of sanctioned recourse to force. To be sure, among the more than 500 supplementary articles that followed the Kenmu Formulary, there are some that specify which officials were charged with arresting felons (suppl. art. 473), guarding prisoners' cages (suppl. art. 476) and torturing prisoners (suppl. art. 477).^{[231] [232]} But these articles were issued in 1523, during the regime's long decline and after nearly two centuries of complete silence on the issue. No doubt the matters regulated in these provisions were not, in practice, left unattended for nearly 200 years, but the regime's failure to codify its procedures in writing is a reminder that there were vast and important blank areas in the shogunate's legal output, and that indeed regulations alone cannot serve as the measure of its attitude towards violence. In this sense, laws were primarily revelatory of the regime's understanding of law itself - of how legislation served to make visible the authorities' credentials as much as to regulate fully their daily exercise of power.

Equally inescapable is the degree to which the regime was inclined to define its role through piecemeal prohibition rather than policy; the degree to which, much like its predecessor, it remained more reactive than active in its approach to governance. Its articulations of the limits to be imposed on the use of force remained consonant with the spirit, if not the scope, of the ones first offered by the Kamakura regime.

Hostilities between the northern-court-backed Ashikaga and the southern­court loyalists continued to flare up throughout the country for about half a century. As a response to repeated and diffuse military challenges, the shogunate was forced to devise a way to give its provincial governors (shugo) the military and financial resources to respond (as well as incentives to stay loyal). The solution adopted (in 1352) was to allow governors to carry out requisitions of taxes paid by all estates in the province where a distur­bance occurred (with exceptions for the holdings of certain proprietors). In 1355, the collection was extended to all provinces in times of crisis. By 1357, governors were allowed to requisition not half the payments but half the lands.1⁹

The cumulative effect of these laws, known as hanzei (half-tax) decrees, was momentous. They were, characteristically, incremental responses to a political and military problem, yet the solution they offered also represented an important departure, for the right to confiscate the income of aristocratic proprietors for the needs of the warrior regime was, in effect, a suspension of the regime's primary raisond'etre - the safeguard of the lawful order and the suppression of violence - for the sake of the regime's survival. This position could be rationalised as necessary for the suppression of greater political unrest, but its implications were nonetheless profound.

This rapid cession of authority helped transform provincial governors into more than mere representatives of the regime, for it enabled them to forge ties with local warriors by doling out the fruits of requisitions to those loyal to them.

It should not surprise that, at the same time as it granted its governors greater latitude fiscally and militarily, the shogunate felt compelled to issue a law (in 1352; suppl. art. 60) ‘[c]oncerning punishment for waging war. An individual who has a shogunal order to enforce must wait for the Bakufu envoy's transmission of that order to put it into effect... Hereafter, anyone engaging in offensive warfare, no matter the reason, will have all of his property confiscated. On the other hand, any who act in self-defense will have one-half of their lands seized.'^[233] Conflicts between, on the one hand, Ashikaga partisans and officials in the new regime and, on the other, aristo­cratic proprietors and other warriors both threatened the shogunate directly and undermined its mandate to keep the peace. To accommodate warriors' penchant for settling scores privately, the regime upheld a distinction between ‘offensive' and ‘defensive' warfare.^[234]

The first time Ashikaga law had addressed the matter (in suppl. art. 26), referring back to an article in the 1232 code as precedent, had been in a series of pronouncements handed down early in 1347. Here the issue had been more explicitly presented as a matter of private enmities, rather than of the irregular execution of shogunal directives: ‘Even if a man bears a clear grudge, he must make an appeal to the Shogun and respect his judgment. To willfully commit murder will be punished. In the case of offensive warfare, although one's original petition may be justified, not to wait for the Bakufu's decision will be punished as a crime. Still more so, those who do not have justification [for offensive warfare]...^,22 Breaking the peace was tanta­mount to encroaching on shogunal prerogatives, and the punishment was accordingly severe.

Indeed, here and in other similar articles, the shogunate acknowledged what dangerous precedents the hanzei decrees could become, allowing as they did the regime's representatives to move aggressively with little super­vision. Yet we see the authorities move tentatively, displaying great consis­tency in the enunciation of general principles (private violence is unacceptable), but going back and forth on the consequences of violations. The criminalisation of offensive and defensive warfare was again the object of a law (suppl. art, 58) signed by Takauji himself some time before 1352: ‘Although both are crimes, it is particularly hard to evade punishment for the crime of offensive warfare. In that case, punishment will depend on how severe the offense has been. As for punishing defensive warfare, that will be decided upon investigating the details and weighing the situation.'^{[235] [236]} Compared with the authorities' stance in both the earlier law (art. 26) and the later one (art 60), here the exclusive right to the exercise of legitimate violence is restated in principle, even as violators are assured that their actions will be judged case-by-case.

Yet the recurring attention to offensive and defensive warfare and to the abuses of power by shogunal representatives remained a response to the violence of the fourteenth century rather than a voluntary pursuit of new justifications for the exercise of the regime's military capabilities. That these laws were a testimony to the Ashikaga's embattled beginnings is confirmed, indirectly, by the lack of new pronouncements on offensive and defensive warfare during the shogunate's heyday, roughly 1369-1467. They reappeared early in the sixteenth century, a time of particular instability within the regime, when multiple contenders vied for the offices of shogun and head of the shogunal administration. Supplementary article 390 (1514) opens by invoking and restating the 1347 precedent. It goes on to add: ‘However, in the present decree, offensive warfare is even more strictly prohibited. Anyone who disobeys will be executed. If he flees, his fellow conspirators will be sought out and punished.'^[237] Two years later (1516), supplementary article 396 returns to the matter, emphasising the economic punishment: ‘Those who carry out offensive warfare, and thereby commit bloodshed and murder, shall have their property confiscated.'²⁵

Murder and bloodshed appear, as they did in the earlier laws, but what remains central to these provisions is the association between breaking the peace and disobedience. Article 60, cited above, was issued together with another provision (article 61), ‘Concerning those who disobey shogunal orders.'²⁶ And, beginning in the late fifteenth century, the ever-deepening crisis of shogunal authority gave rise to a number of statutes addressing its followers' unruliness: ‘Concerning the obligation to report to the Bakufu if members of the shogunal guard commit offenses'²⁷ (art. 266; 1463); and ‘Prohibition against forming leagues and engaging in uprisings'²⁸ (art. 304; 1490). Gradually emerging, in these later laws, is the sense that subordinates' abusive uses of authority and military force were a threat not only to the shogunate's legitimacy but to its very pre-eminence.