1991 Fiscal Year Final Research Report Summary
Historical Research on Notions Pertinent to State and Law
| Project/Area Number |
01301064
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| Research Category |
Grant-in-Aid for Co-operative Research (A)
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| Allocation Type | Single-year Grants |
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| Research Field |
Fundamental law
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| Research Institution | Faculty of Law, Hokkaido University |
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Principal Investigator |
ISHIKAWA Takeshi Hokkaido University ; Professor Emeritus, 名誉教授 (20000648)
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| Co-Investigator(Kenkyū-buntansha) |
ISHII Shiro The University of Tokyo ; Faculty of Law ; Professor, 法学部, 教授 (00009797)
MURAKAMI Jun'ichi The University of Tokyo ; Faculty of Law ; Professor, 法学部, 教授 (80009795)
NARUSE Osamu Seijo University ; Faculty of Arts & Literature ; Professor, 文芸学部, 教授 (70011278)
YAMADA Kingo Hitotsubashi University ; Faculty of Economy ; Professor, 経済学部, 教授 (70017523)
KOSUGE Yoshitaro Hokkaido University ; Faculty of Law ; Professor, 法学部, 教授 (00000654)
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| Project Period (FY) |
1989 – 1991
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| Keywords | History of Notions / Constitution / Law as Proposal / Learned Law / Legislative Movement / Court of Justice / Bargaining / Consent |
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| Research Abstract |
The following results have been obtained from our historical research on notions pertinent to state and law in Europe :
I) The european law changed its character very much in the twelfth century. The law up to that time had been uncertain, contradictory and only a proposal, which had force only by the acceptance of its users. In that century an effort began to a certain, consistent and normative law through the papal legislation (legislative movement) and the legal science (learned law).
II) The court of justice had a great importance in the law and constitution before modern times. The word "recht" meant principally a court of justice or judgment in the "Sachsenspiegel". The important political and legal acts were done in the form of judgment.
III) The litigants played a much more important role in the judicial process until eighteenth century or so than in the modern legal process. The efficacy of judgement depended essentially on litigants' consent, therefore the border between judgement and compromise was not clear. On this point an analogy to the Japanese legal culture can be found, but the respect for the contest and the rational process for judgement or compromise make a difference.
IV) The modern formally rational law can be considered as product of the effort written above in I). The compromise or the bergaining nevertheless has kept its significance. The contemporary law is respecting more and more the bargaining and consent of litigants. This movement should be considerpdin such historical context.
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