Page:Shinto, the Way of the Gods - Aston - 1905.djvu/255

Rh Dr. Weipert says: "There are in the Kojiki and Nihongi numerous instances of arbitrary punishment inflicted by rulers, chieftains, &c., or of private revenge, but nothing shows the existence of fixed punitive laws or conventions.

......If we confine ourselves to the prehistoric times of Japan, we find in them no other traces of conceptions of a binding law than those handed down to us in the rituals dedicated to the Gods. It was indeed the power of the ruler which held the community together, but the idea of the society being subject to lawful restraint was to be found only in the religious sentiments of the people. To the extent of these sentiments alone can it be said that a lawfully regulated community and a consciousness of such existed in those days. Now since we take criminal law to be the publicly regulated reaction of a community against all acts of its members which are detrimental to the common interest, we can scarcely hesitate to describe the Ohoharahi as the first source of Japanese criminal law." This is a special application to Shinto of the principle laid down in general terms by Dr. Pfleiderer that "the beginnings of all social customs and legal ordinances are directly derived from religion." Max Müller has expressed himself nearly to the same effect.

I hardly think that the Japanese facts bear out these views. It may be admitted that before the seventh century there were no "fixed punitive laws or conventions in Japan." But between this and mere "arbitrary punishment" or "private revenge" there is a middle term, and I submit that it was precisely to this stage that the Japanese nation had arrived at this time. A common law was in existence, unwritten and ill defined, leaving much room for arbitrary procedure and punishments, but yet a reality. It dealt, as there is evidence to show, with matters so essential to the welfare of the community as reason,