Law and Society in Imperial Japan: Suehiro Izutaro and the Search ...

to custom and propriety, and not in accordance with tomes of regulations written out in formidable classical Chinese.¹ In an even more general sense, government was in the register of the heavenly, not the mundane—the native Japanese word for “government” is matsurigoto, which implies propitiating the gods, a far cry from the cut-and-dry bureaucratic nature of law in the Tang.² So, the ritsuryō system remained more ornamental and referential rather than the standard for the actual administration of the Japanese state.

This arrangement provided broad leeway for accommodating vagaries between law and society. To take one good example, during the Heian period the prerogatives of the court were combined with broad discretion given to the wealthier peasants in the distant provinces tasked with overseeing the nobles’ latifundia and sending revenues back to the capital.³ Whatever disputes arose among the peasantry hardly ever made it back to the owners of the shōen, or provincial estates. Justice was administered by the estate managers and enforced by the local strongmen (who would later become the samurai) whom the managers employed in lieu of a centrally controlled military presence. Disputes among the nobles themselves were referred to the elders of the imperial court, or, sometimes, to the emperor himself. There were no specialists at law and no magistrates as in China. Justice was meted out by dint of birth, not by virtue of legal scholarship or by appeal to chapters in a given lawbook. Although the putative law of Heian-era Japan was the ritsuryō system adopted from China, the functioning law was a species of benign neglect. In nuce, law in Japan until very recently might be summarized as a biplanar system, or perhaps as an ideal (the law) projected like pale movie light onto reality (society). The laws on the books corresponded only analogically to the society paralleling them, standing off from the thinking and doing that had currency in the world.

Eventually, the strongmen who had been commissioned by the estate managers to keep order among the peasants and enforce the will of the distant shōen owners gained full control of the estates and their revenue.