试论日本镰仓时期的武家法

The Legal Code of Buke in Kamakura Period of Japan

镰仓初期幕府依据其统治需要制订颁布了武家第一部成文法《御成败式目》,并以此为基础不断充实、完善武家法体系,构建了以诉讼为核心的武家法律制度。与同时期的公家法、本所法相比,武家法以武家社会的习惯法、先例及施政条令为主要渊源,重视维护武士利益及武家的统治秩序,具有明显的武家特色。在诉讼制度方面,武家的合议制度、回避制度都具有相当的进步意义,但对习惯法的继承却约束了武家法制的健全发展。

In early Kamakura Period, the first written law-“Goseibai Shikimoku” was enacted to serve the governance of Bakufu. Later on, the ruling government enriched the contents and constantly perfected the legal system, and eventually established a legal system characterized by litigation. Compared with other legal systems such as the laws for Kuge and Shoen, the legal code of Buke was based on the customary law, precedents and administrative regulations, and paid more attention to protecting the interests of the samurai and the order of ruling. In terms of litigation, the collegial system and the avoidance system were quite progressive. However, relying on customary law had constrained the development of the legal code of buke.