Chapter 18

l a w a n d p r e c e p t s f or t h e w a r r i o r h o u s e s

The Kamakura shogunate is perhaps best remembered in history as a regime

of law and justice, although for most of its first half century, it had no law of its
own with which to dispense justice. When the regime was founded in 1185, it
was administered autocratically by its leader, Minamoto Yoritomo, the lord of
Kamakura, who made no significant effort to establish new laws for warrior
society but, rather, accepted in general the jurisdiction of the country’s two
existing bodies of law: the law of the imperial court of Kyoto and the customary
law compiled by the independent estates (shōen) that by this time controlled
most of Japan’s agricultural lands.
As noted in earlier chapters, after Yoritomo’s death in 1199, a power struggle
lasting several decades ensued in Kamakura that was finally won by the Hōjō,
who were related to Yoritomo by marriage. By establishing the office of shogunal
regent (shikken), the Hōjō became the real rulers of the young warrior govern-
ment under figurehead shoguns (first Fujiwara and, later, imperial princes). In
1221 in a brief clash of arms, the Hōjō put down an attempt by the retired
emperor Go-Toba to overthrow the shogunate (discussed in chapter 11). Victo-
rious in this clash, which was known as the Jōkyū war, the Hōjō were able to
assert Kamakura rule over the country far more extensively than before.
In 1224, the Hōjō established the Council of State (Hyōjōshū), which under
their leadership became the shogunate’s principal decision-making body.
Through this council, assembly rule superseded the one-man governance of
414 the me die va l a ge : de s p a ir, de liverance, and dest iny

Yoritomo, the shogunate’s founder. In 1232, Hōjō Yasutoki (1193–1242), generally

regarded as the finest of the shogunal regents, issued a document known as the
Jōei Code,1 comprising fifty-one articles, that was intended as a guide for
the conduct of the Council of State but that also became the starting point for
the development of warrior law, distinct from both court law and estate law.
To prepare the Jōei Code, Yasutoki consulted legal specialists from Kyoto
and studied court law assiduously. But as he made clear, the Jōei Code was
designed exclusively for warriors and would not compete with or seek to displace
the older law. In letters he wrote to his brother at this time, Yasutoki stated that
his primary aim was to set standards for the fair and equitable handling of suits,
and he vowed to rectify the practices of the past that had enabled the powerful
to prevail over the weak and those of higher status to defeat their social inferiors
through favoritism, bribery, and the like. Yasutoki said he feared that the cour-
tiers in Kyoto would ridicule attempts by the ‘‘eastern barbarians’’ to establish
their own law. But he noted that in the provinces not one person in a thou-
sand—or even ten thousand—could understand court law. Hence to apply such
law to suits arising among provincial warriors was like luring animals into traps.
In addition to being fair and equitable, therefore, the code he was preparing
would be written in a manner readily understandable by everyone.2
The Jōei Code is not a formal set of laws. Rather, it establishes certain rules,
identifies categories of legal concern, and provides standards for warrior behav-
ior. Yasutoki clearly intended the code to be only a starting point for the creation
of warrior law, stating that if anything were found to be missing from it, the
code should be amended through the addition of supplementary articles (tsuika-
hō). In practice, the Council of State and other bodies of the Kamakura sho-
gunate passed judgment on accusatorial suits (suits brought by plaintiffs against
defendants), and their judgments or decisions became supplementary articles
to the Jōei Code. Some seven hundred of these articles survive, many if not
most dealing with land disputes, the area of greatest concern to warriors.
Yasutoki’s aim in the Jōei Code was to base law primarily on precedent and
principle (dōri). By precedent, he had in mind especially the decisions made
in Yoritomo’s time. Thus, for example, in article 3 of the code, in which he
discusses the duties of the provincial constables (shugo), Yasutoki observes that
these duties were permanently established by Yoritomo himself. In article 8,
dealing with deeds to land, he decrees that the precedent established in Yori-
tomo’s time was to recognize as legitimate the claim to a holding, even in the
absence of a deed, if the holder could prove that he had been in possession of
the land for at least twenty years.

1. Jōei was a period that lasted only one year (1232). The formal name of the Jōei Code is
Goseibai shikimoku (Formulary of Adjudications).
2. Satō et al., eds., Chūsei hōsei shiryō shū, vol. 1, pp. 56–59.
 Law and Precepts for the Warrior Houses 415

When no precedents could be applied in adjudicating a suit, Yasutoki held

that the judgment should be based on principle (dōri). We observed in chapter
11 that Jien, writing in Gukanshō, used the term dōri to indicate the various
‘‘principles’’ that he believed governed the course of Japanese history. For count-
less readers of Gukanshō, Jien’s use of dōri has hindered rather than helped in
seeking to understand the text. But the term as more generally employed had
the meaning of ‘‘reasonableness,’’ ‘‘common sense,’’ or ‘‘rightness,’’ and this is
how Yasutoki, a younger contemporary of Jien, intended it to be applied to
warrior law. In short, dōri was to be the real basis for dispensing fair and equi-
table decisions in legal cases brought before the Kamakura shogunate.

the jōei code

The fifty-one articles of the Jōei Code deal with a broad range of topics, including the
granting and holding of land, the duties of shogunate officials, the bestowal and receipt
of estate property, the rights of inheritance, and the apprehension and punishment of
criminals. The following is a sampling of these articles, chosen to illustrate some of
the distinctive features of the new warrior law promulgated by the Kamakura shogun-
ate. Among the distinctive features are the limitations placed on the duties and rights
of the shogunate’s own principal officers in the provinces and estates, that is, the
constables and stewards (articles 3 and 5); the recognition of the continuing, indepen-
dent jurisdictions of both court-appointed officials (governors) and estate holders (ar-
ticle 6); the twenty-year rule applied to the possession of land (article 8); and the
granting and holding of land and adoption of heirs by women (articles 18, 21, and 23).
The articles dealing with women are particularly interesting because they show that
women enjoyed considerable rights of ownership and privileges of family membership
in Kamakura warrior society based on the practice of divided inheritance, that is, the
division of estate property to all offspring, female as well as male. But within a century
or so, most of these rights and privileges were lost, as warrior society shifted to the
practice of single inheritance or the exclusive inheritance of both economic wealth
and political authority by the male successor to a family’s headship.

Article #1. The shrines of the gods must be kept in repair; and their worship
performed with the greatest attention. . . .
Article #2. Temples and pagodas must be kept in repair and the Buddhist
services diligently celebrated. . . .
Article #3. Concerning the duties of the constables (shugo) in the provinces.
It was decided in the time of Lord Yoritomo3 that these duties should be: 1.
providing for guard duty at the imperial capital [Kyoto]; 2. suppressing rebel-

3. Here and elsewhere in the Jōei Code, Yoritomo is referred to as ‘‘Great General of the
Right (utaishō),’’ which is an abbreviation of the highest court title he held, ukon’e taishō.
416 the me die va l a ge : de s p a ir, de liverance, and dest iny

lions; and 3. tracking down and apprehending murderers. But of late, deputies
(daikan) of the constables have been dispatched to districts and towns (gunkō),
where they have imposed levies. Although not provincial governors (kokushi),
they have interfered in the provinces’ administration. Although not stewards
(jitō), they have coveted profits from the land. Such behavior is utterly unprin-
cipled. . . .
Article #5. Concerning the withholding by a steward (jitō) of the assessed
amount of the annual rent (nengu). If a complaint is submitted to the central
proprietor (honjo) of an estate that the annual rent has been withheld by a
steward, an accounting will be made at once and the complainant will receive
a certificate specifying the balance that may be due him. . . .
Article #6. Governors of the provinces and estate holders (ryōke) may con-
tinue to exercise their usual jurisdiction without reference to the Kantō [i.e.,
the Kamakura shogunate]. . . .
Article #8. Concerning a fief that a plaintiff, although holding a deed of
investiture, has not possessed over a period of years. If the current holder has
been in possession of the fief in question for more than twenty years, then, in
accordance with a precedent established in Lord Yoritomo’s time, it will not be
transferred to the plaintiff, whatever he may claim in seeking to obtain it. . . .
Article #11. Whether, because of a husband’s crime, the landholding of a
wife should be confiscated or not. In the case of serious crimes, such as rebellion
and murder, as well as banditry, piracy, night attacks and burglary, the husband’s
guilt will extend also to the wife. But if, as the result of a sudden dispute, the
husband wounds or kills someone, the wife will not be held responsible. . . .
Article #18. Whether or not parents, having given a daughter a holding in land,
may reclaim it because of a later falling out with the daughter. Legal scholars
have held that, although sons and daughters differ in gender, they are equal in
terms of the benefits bestowed upon them by their parents. Hence, a gift to a
daughter should be as irrevocable as one to a son. But if a gift to a daughter
were irrevocable, she might rely upon that fact and not scruple to go against
her filial duties. Parents therefore must, when thinking of bestowing a gift of
land on a daughter, consider whether or not there might later occur a dispute
between them and the daughter. . . .
Article #21. Whether or not a wife,4 having received a grant of land from her
husband, can retain that grant after divorce. If the wife has been rejected be-
cause of a serious transgression, she will not be allowed to retain the grant even
if she possesses written documentation for it from an earlier time. But if the
wife has been virtuous and innocent of any fault and was discarded by the
husband in favor of something new, then the grant given her cannot be re-
voked. . . .

4. It states here ‘‘wife or concubine,’’ but the remainder of the article refers only to ‘‘wife.’’
 Law and Precepts for the Warrior Houses 417

Article #23. Concerning the adoption of heirs by women. The intent of

earlier law was not to allow adoption by women. But from the time of Lord
Yoritomo to the present day it has been a fixed rule to allow a childless woman
to bequeath her land to an adopted child. . . .
[Adapted from Hall, ‘‘Japanese Feudal Law,’’ pp. 37–45; PV]

TH E LAW OF THE MU ROMAC HI SHOGUNATE

When Ashikaga Takauji overthrew the government of Emperor Go-Daigo’s

Kenmu Restoration in 1336 and established the Muromachi shogunate (see
chapter 12), he faced formidable problems. Go-Daigo himself fled to Yoshino
in the mountainous region south of Kyoto, proclaimed that he was still the
rightful emperor, and founded what came to be known in history as the
Southern Court. Takauji and his followers were accordingly obliged to contend
not only with the disorder and dislocations caused by the recent fighting against
the Restoration government but also with a new, rival regime in the Southern
Court whose warrior supporters launched a war against them that lasted for
more than half a century (until 1392).
One of Takauji’s first concerns was where to place the seat of his shogunate.
Although he finally decided on Kyoto because of the geographical advantages
it offered in fighting the Southern Court, he apparently passed over Kamakura,
the capital of the previous military regime, only with great reluctance. As ob-
served by Nikaidō Ze’en, head of a group of legal scholars and others whom
Takauji consulted about policies and principles of governance, Kamakura had
been a site of both glory and disgrace for the country’s military. It was a site of
glory when Yoritomo established the first shogunate there and when Hōjō Yosh-
itoki ‘‘seized the empire during the Jōkyū era’’ (i.e., foiled the former emperor
Go-Toba’s ‘‘rebellion’’ against the Kamakura shogunate in 1221), but it was a site
of disgrace when the later Hōjō regents ‘‘accumulated evil unceasingly by their
arrogance and selfish desires’’ and the shogunate had to be destroyed. In Ze’en’s
thinking, what mattered most was how a government was run and not the
location of its seat; therefore Kyoto would serve as well as Kamakura. In his
words, ‘‘The rise and fall of a capital . . . depends on the quality of a government.
. . . [M]an’s misfortune is not to be found in the bad luck of his dwelling place.’’5
In the eleventh month of 1336, Ze’en and seven others presented to Takauji
the Kenmu Code (Kenmu shikimoku), a document in seventeen articles that
Ze’en called an ‘‘opinion’’ to guide the shogun in rule. The decision to have
the code divided into seventeen articles was clearly made with Prince Shōtoku’s
famous Seventeen-Article Constitution in mind, and indeed, the Kenmu Code

5. Grossberg and Kanamoto, trans. and eds., The Laws of the Muromachi Bakufu, p. 15.