Ancient History of Crime and Punishment: Divine Judgment and the Rule of Law

Raskolnikov, the young student protagonist of Dostoevsky's masterpiece "Crime and Punishment," murders an old pawnbroker and steals her money, boasting that it is not a crime if it serves the world. He claims that while the hero Napoleon caused many deaths in war, no one would call him a criminal. While this does not apply to Raskolnikov's case, in criminal law, crimes based on religious or political convictions are distinguished as "crimes of conscience." Whether euthanasia is considered a crime also varies by country. In ancient China, the relationship between Confucian rites, which made revenge against a father's enemy a duty, and state laws, which made murder a crime, was a significant issue. Types of crime and punishment vary across the East and West and throughout different eras.

The Gaza Strip in Palestine has been blockaded by Israel for many years and is often called an open-air prison. In October 2023, after Hamas launched a cross-border attack on Israel, Israel began a large-scale assault on the Gaza Strip with overwhelming military force. The offensive has not weakened, and the conflict has intensified. Approximately one year and ten months have passed since then.

The characteristic of ancient Japanese law lies in the multi-layered nature of the Ritsuryo codes and the indigenous laws that preceded them. It could be described as a mixture of secular law and divine law. The preamble to the Code of Hammurabi, famous for "an eye for an eye, a tooth for a tooth," states that King Hammurabi was summoned by the gods to bring justice to the land. In ancient societies where church and state were unified, royal law needed to borrow the authority of the gods. In contrast, the Chinese Ritsuryo codes from the Qin and Han dynasties onwards used the rational thoughts of Confucianism and Legalism as their theoretical pillars, allowing them to function without relying on divine authority.

However, in Japan, acts disliked by the gods, such as interfering with agricultural rituals, were considered crimes, and the distinction between crime and punishment was ambiguous. Punishments written as "death penalty" (shikei) or "exile" (rukei) in Chinese codes were written as "capital punishment" (shizai) or "banishment" (ruzai) in Japanese codes, terms that continued until the Edo period. During the Heian period, the "Oharae" (Great Purification) to cleanse impurities caused by "Amatsu-tsumi and Kunitsu-tsumi" (Heavenly and Earthly Sins) became an annual event, and purification was used alongside the punishments of the Ritsuryo codes. Ancient trials by ordeal (Kugatachi), which determined guilt or innocence based on the degree of burns from boiling water, were revived as "Yu-kisho" in the Middle Ages and continued until the beginning of the early modern period. The Ritsuryo provision for the severe punishment of killing a lineal ascendant, which treated the murder of a parent as a grave crime, was carried over into the criminal law of the Meiji era and beyond. Although it was ruled a violation of Article 14 of the Constitution (equality under the law) by a Supreme Court decision in 1973, it was not removed from the Penal Code until 1995.

The inspiration for writing this book came in the spring of 2023, when I received a request from the editorial department of Yoshikawa Kobunkan to write an easy-to-understand account of what ancient Japanese punishments were like, and how they differ from or are the same as those of the present day. Although this task exceeds my abilities, I have done my best to be creative. I would be honored if you would read the book for further details.

Ancient History of Crime and Punishment: Divine Judgment and the Rule of Law

Akira Haseyama

Yoshikawa Kobunkan

240 pages, 1,980 yen (tax included)