| Chapter 1: | From Ōoka Tadasuke to Hozumi Yatsuka |
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at heart, a performance.5 For example, it was a Tokugawa law that a daimyō had to nominate a successor before he (the daimyō) died or was otherwise incapacitated. In theory, this was to avoid any disagreements—and, potentially, any rebellions—over who the legitimate heir to the ruling daimyō’s position was to be. In practice, it was not always possible to designate a successor before a daimyō died or fell ill. In such cases, the following arrangement came to be the norm. The ill daimyō (or his corpse, as it happened) was laid out on his bed behind a folding screen. A Tokugawa official was then summoned to witness the daimyō “sign” the document of succession, nominating his official heir. In the presence of the official, a member of the daimyō’s household would manipulate the immobile hand of the daimyō, stretching it out from behind the screen and affixing the daimyō’s seal to the document of succession. Everyone, of course, knew that the daimyō was either ill or dead and therefore incapable of signing documents. But society, or the part of it legible and responsible to the law, was obliged to fulfill the law’s strictures even when that fulfillment had been rendered completely impossible. It was what would later be called a “legal fiction.” The law was satisfied, even if by a transparent lie, and society could go on muddling through as before. The “great peace” had been maintained.
This predominance of the legal fiction during the reign of the samurai extended to other areas of Japanese society, too. In court cases from the time in which peasants came before daimyō-appointed magistrates to answer charges of infringing on the daimyō’s absolute prerogatives, for example, it was common to find those magistrates exercising mercy and effecting justice by framing the case in false terms. The semi-legendary master of this method of rearranging fact in order to keep the law from having to bend was Ōoka Tadasuke, Echizen-no-kami (1677–1752). Ōoka’s great skill as a judge was in judiciously ignoring what the law told him to do. Ōoka was revered during his own time and thereafter, but then forgotten in the Meiji rush to “modernize” and Westernize. He was subsequently rediscovered in the 1920s by the law and society practitioners in Japan, who saw in his wise judgments the deft navigation