Violence in Warring States' Laws
The violence attendant upon the demise of the Ashikaga shogunate found its way into the codes of law compiled with growing frequency by regional warlords during the course of the long civil war known as the Age ofWarring States (Sengoku jidai; roughly, 1467-1615).
The regime was first crippled by the internecine strife of its members - the military governors, who had long provided military support to the Ashikaga and had been entrusted with governing the provinces. A protracted and inconclusive war (1467-77) between two coalitions of governors, nominally headed by two aspiring shoguns, left much of the city of Kyoto in ruins, and the governors themselves exhausted militarily, financially and politically. By exposing the hollowness of the regime from which they drew legitimacy, the governors soon found themselves unable to enforce the loyalty of local warriors in the provinces they governed as shogunal officials.
By the middle of the sixteenth century the vast majority of the houses that had once served as military governors had been destroyed or replaced in the provinces. Their place was taken either by their former military deputies (shugodai), who had long carried out most of the day-to-day provincial administration and developed ties with locals, or by locals themselves. These ‘men of the provinces' (kokujin) began from the small power bases provided by ancestral holdings and fought their way to the conquest of entire districts, provinces and even regions.[238]
Daimyo, as the emergent warlords were known, frequently relied on the administrative and legal frameworks established by the governors they had displaced. Still, by the second quarter of the sixteenth century, they began issuing not only individual decrees of their own but whole law codes. The first to do so were the Imagawa of Suruga province, who issued their code, known as Imagawa kana mokuroku, in 1526.
In the code's final clause, they boldly state: ‘As for the above articles, they are the product of following our repeated realizations and privately recording them for the sake of the domain... [W]e have established this code and it is [composed of] things ruled upon previously... As for the other laws of the realm, even that we privately stopped [drawing] from their precedents is not something [that needs] discussing. '[239] A few years later the Imagawa expanded their code, including an even more forceful statement (suppl. art. 20): ‘It was through our efforts that we issued laws for the province and brought peace; not through the shugo's intervention.'[240] While shogunal lawmakers too, in the thirteenth century, had founded the Joei Formulary on Kamakura's own accumulated legal wisdom, they had implicitly relied on the court's mandate to validate their pronouncements. The Imagawa and other daimyo, instead, used legislation to claim not only legitimacy but also independence.Quite apart from the military force that propelled the daimyo to prominence, the violence of the age is conspicuous, as a range of behaviours in need of regulation, in the greater space devoted to penal law. Fully one-third of the 171 articles of the Date code (Jinkaishu, Collected dust and dirt), for instance, are devoted to violent crimes such as, for example, killing a guest (art. 28), killing a merchant or a travelling ascetic (shugyosha) (art. 33), killing the wrong person (art. 35), poisoning someone (art. 36), wounding someone as a result of an argument (art. 38).[241] Some laws evince concern about the pervasiveness of violence in daily life. The Imagawa code addresses night-time home invasions (art. 7; a recurrent crime in the laws of the time), as well as the penalty for children involved in fights (art. 11; a less common issue), and how to treat a child who has unintentionally killed a playmate (art. 12).[242]
More so even than in shogunal laws, penalties for infractions tended to remain vaguely stated in daimyo codes.
The new rulers' intransigence was denoted obliquely by the novel breadth and variety of definitions of criminal conduct. That penalties for infractions were in general notably harsher than in earlier codes is suggested by those instances in which they were spelled out. The code issued by the Yuki house (Yuki-shi shinhatto) minces no words: ‘Hereafter, if one is disloyal, all his kin must be executed, his family name cancelled, his lands [granted to] someone else' (art. 22).[243] More run-of-the- mill offenders were subject to harsh punishment as well. Article 26 of the Chosogabe house's code (Chosogabe-shi okitegaki) stipulates: ‘With regard to thieves: they should be captured immediately and the magistrate informed. If there is no question about guilt, they will of course be beheaded.'[244] Here, the casual certainty of the penalty is somehow more arresting than the penalty itself. Punishments are made more ominous by appearing as passing mentions, as in the Chosogabe code (art. 28): ‘With regard to someone who injures another without reason: the nature of the death penalty which is to be imposed will be determined after careful examination. Further, if punishment is extended to the offender's relatives, the details of the investigation should be made clear.'[245] The Yuki code contains a similar provision about quarrels conducted without good reason, and here too punishment (confiscation of all lands) may be extended to the culprit's kin (art. 5).[246] Indeed, such reference to the punishment of kin (however more careful the pronouncement) is unmistakable evidence of the draconian nature of the codes.The new codes are also characterised by more frequent and specific articulations of daimyo's monopolistic rights to judicial violence and by careful stipulations concerning delegation of those rights. In his analysis of the Date house's law code, Kobayashi Hiroshi has argued that despite Date efforts to establish their courts as the sole venues for the adjudication and settlement of disputes, the daimyo had to make numerous concessions to the customary rights enjoyed by land stewards in estates throughout the domain.
Thus the code guaranteed a steward's right to kill resisting peasants and requisition their lands, as well as his right to discipline his retainers and serfs. Kobayashi concedes that these prerogatives were essentially limited to the sphere of the local estate and to the exercise of the intrinsic prerogatives of land stewardship - to cases in which the retainer or servant breached the main compact with his master. If instead that master protected or hid a follower guilty of a crime - a crime against the law of the domain - then the violation fell within the jurisdiction of the Date.[247] Yet crucial here is not (or not mainly) daimyo law's actual reach, but rather its function in delimiting lawful recourse to force. Provisions such as those found in the Date code do not so much protect stewards' authority as declare the warlord's right to articulate the limits of his and his steward followers' respective jurisdictions, by arrogating the right to establish, as domainal law, the contours of customarily held prerogatives.The peculiar intersection of criminal conduct and (dis)loyalty returns again and again in sixteenth-century codes. Article 22 of the Yuki code is only one example, if a particularly vivid one. The same code returns to the issue in article 28: ‘However much loyalty his family may have displayed in past generations, if one is indiscreet, or lacking in preparedness, or does not serve [the Yuki], he [and his family] must be eliminated.'[248] In a similar vein, the Chosogabe code states (art. 84): ‘As regards family name and succession designation for loyal retainers: If a vassal commits a crime and has to be punished, his family name will not be affected if the offence was a minor one. But if he commits a major crime, his punishment should include the loss of his family name.'[249] Like the Yuki law, this one is primarily concerned with weighing a vassal's past loyalty against his present disloyalty.
Yet a provision in the Date code (art. 61) is suggestive of the degree to which crime and disloyalty were commensurable categories in the eyes of the law-making daimyo: ‘After being judged a bandit, said thief, even if he serves loyally, must not be pardoned glowingly. Furthermore, that thiefs sons and grandsons must not be employed indiscriminately, nor must there be any vassalage.'[250] In prohibiting the exchange of loyalty for lawfulness the provision implicitly concedes not only the perceived fungibility of the two, but also lords' frequent willingness to condone breaches of the peace by those who otherwise provided loyal support. This is the same dilemma confronted in their respective codes by the Yuki and Chosogabe, both of whom, in deciding whether or not to show clemency to those with a history of loyalty (and if so, when, and how much), were forced to return to the centuries-old equation of antisocial conduct and disloyalty.Despite building their rule on local power relations rather than official appointments, then, sixteenth-century warlords were forced to reckon with the problem that had vexed the two shogunates: any effort to shore up legitimate authority through legislation and adjudication was undermined by the ruler's imperfect ability to keep the peace - or, at least, to arbitrate the cases in which the peace could not be kept. Had daimyo come full circle?
Despite daimyo's reputation as iconoclasts, most sixteenth-century warlords were eager to borrow the trappings of imperial and shogunal authority and to prove their ruling bona fides through cultural patronage and intermarriage with aristocrats. Indeed, it is easy to overstate the novelties introduced by sixteenth-century warlords in fields of military recruitment, vassal organisation, taxation and, of course, law, and scholars recently have pointed out how much warlords looked back to hallowed precedents.[251] Yet the precarious localism of these men's political beginnings also encouraged them not only to be experimental about the policies they created and to be selective about the ones they borrowed; they also encouraged them to be aggressive, rather than simply reactive, in implementing their policies.
Warfare being their primary occupation, they worked hard to improve their ability to muster troops, restructuring their warrior bands and spelling out more clearly the parameters of service.[252]They did much the same in rationalising their exclusive recourse to violence by crafting new and more intrusive approaches to the adjudication of disputes and conflicts. In code after code, self-redress, long the bane of shogunal authority, became more clearly and fully encompassed among acts of disloyalty; the distinction between offensive and defensive violence faded and disappeared. In a landmark essay, Katsumata Shizuo showed how the redefinition of self-redress as a criminal offence - regardless of merits - was part of broader assertions of daimyo jurisdiction. Daimyo encouraged local communities to resist the lordly authority of the daimyo's own followers and to seek redress to their grievances in the daimyo's courts, thus simultaneously undercutting powerful followers' autonomous lordship and forging deeper ties with village leaders, who could then be integrated into the warlords' war machine. Crucial to these manoeuvres was the promulgation of laws that discouraged internecine conflict by punishing all parties to a violent dispute indiscriminately (known in Japanese as kenka ryoseibai ho, or ‘laws punishing both sides in disputes').[253]
Both codes issued by the Takeda house of Kai and Shinano, in 1547 and 1574 (both known as Koshu hatto no shidai), include such provisions: in case of disputes, principals and accessories alike were to be punished, equally and regardless of merits (1547 code; art. 12); in quarrels, punishment should be meted out to all regardless of merit (1574 code; art. 17). The Imagawa code (art. 8) declares anyone party to a quarrel guilty, regardless of merits.[254] The Date code (art. 20) declares that fault will be found ‘regardless of reports of right or wrong' (rihi hiro ni atawazu) and ‘even in cases of absolute righteousness' (shigoku no dori).[255] Most extreme in its monopoly of legitimate violence is the Yuki code in which the daimyo extends his arrogation of initiative to all uses of force. Three successive articles adopt the principles at work in the proscription of feuding - of lawless military action - to encompass what may have been less self-consciously private mobilisation: warriors must not head out against the enemy when hearing the battle-conch, but rather request instructions from above (art. 67); warriors must not head to the battlefield alone and without armour, no matter the emergency, but form a unit (art. 68); warriors must not undertake surveillance missions on their own, without prior orders (art. 69).47