Treatise 113: Law and Punishment I

¶Since antiquity, those who have held the realm have been unable to govern without penal law. A benevolent ruler stands toward the people as one who guards and rears an infant; yet when there is no alternative, he must wound flesh and skin and take away life. That he applies punishments and penalties grounded in righteousness, and dares not pardon, is not because he lacks compassion, tenderness, or a sense of what cannot be borne. Punishment is employed in order to put an end to punishment, and penal law ultimately aims at a state in which there is no punishment. To exhaust what righteousness requires is precisely what makes it the utmost expression of benevolence. Now, the establishment of penal law has its origin in the Age of the Gods. The heavenly offenses and earthly offenses appear in the liturgy of purification. The sage emperors, embodying the will of the kami, established the penal codes and thereby set the myriad people right; their origins reach back to a remote and ancient age. In the most ancient times, however, those above ruled over those below with mysterious virtue, and those below served those above with loyalty and good faith. High and low were as one body, and government valued simplicity. Whenever someone committed an offense, he was for the most part permitted to reform by swearing an oath to the kami and undergoing purification. The myriad people lived in harmony and affection and together attained a state of benevolence and longevity. In such an age, what need was there to speak of statutes and articles of law? But as the way of the world lost its ancient form and men's hearts gradually inclined toward deceit, Crown Prince Jōgū (Note: Prince Shōtoku) first composed a constitution. When Chūsō (Note: Emperor Tenji) restored the dynasty, he commanded Fujiwara no Kamatari to revise and compile the codes (ritsuryō) and to draw up regulations and institutions, which far surpassed those of earlier ages. Successive courts followed them, with some additions and reductions. The books of the supplementary regulations and procedures (kyaku and shiki) were likewise compiled one after another during the Kōnin, Jōgan, and Engi eras. Now the ryō fixed the grades of the noble and the humble and the institutions of the state; the kyaku were the matters that the hundred officials and functionaries were constantly to carry out; and the shiki were the laws that they were constantly to observe. All government of the state was necessarily conducted in accordance with these. Those who could not follow them, who committed wrongdoing and fell into guilt, were all judged uniformly by the ritsu (penal code). This is how our imperial court, following the Way of the kami while adopting the institutions of Tang, selected and determined the great codes of a hundred generations, and it may truly be said that they were complete. The ancients said, "Punishments are light or heavy according to the age," and also, "In governing a newly founded state, use light codes; in governing a peaceful state, use middling codes; in governing a disordered state, use heavy codes." Therefore leniency and severity, firmness and gentleness each answer to their own age, and to make slackening and tightening, relaxing and hastening all suit the occasion is the standard for ten thousand generations, one that cannot be changed. Now, if one surveys together the traces of how punishment was used in earlier ages, the government of high antiquity was concise and strict in establishing law and always took benevolence and forbearance as its root. Those who were cruel and fond of killing were limited to the two emperors Yūryaku and Buretsu; of others there is nothing to be heard. When Chūsō (Note: Emperor Tenji) fixed the institutions, the reason the articles were made fine and detailed was truly that there was in them an intention of benevolent generosity and sorrowful compassion (Note: literally "grief and pain"). Hence virtue and punishment operated side by side, and the way of orderly rule was greatly accomplished. From the middle period onward, the court drifted into leniency and lost its firmness. In the most extreme cases, even those who excavated imperial mausolea, who killed their own mothers, or who as warriors killed people at will in order to display their power, received penalties of no more than exile or banishment. Even monks who bore arms and violated the imperial residence were merely placated and sent back. Even one who shot at a retired emperor, or one who killed an attendant, was likewise punished only by a reduction of one degree and sentenced to exile. If one traces why punishment came to be so ineffective, it derives from the successive courts' devotion to Buddhism. When the transforming influence of virtue was not yet operating, and the system of punishment had already fallen into disuse first, how could the imperial enterprise fail to decline? When the hegemonic government (Note: the shogunate) was established, it monopolized authority and fortune, and its use of harsh penalties and stern laws came fairly close to the idea of applying heavy codes to a disordered state. Robbers and bandits were thereby awed into silence, and it was said that a measure of calm was gained for a time. But its benevolence, forbearance, and sorrowful compassion could in no way match those of antiquity. The Liji says: "If you instruct them with virtue and regulate them with ritual, the people will come to have a heart to reform (Note: a heart that seeks of itself to correct wrongdoing). If you instruct them with government and regulate them with punishment, the people will come to have a heart to evade (Note: a heart that seeks to escape the net of the law). To cut off evil before it sprouts, to raise up instruction at the faintest sign, and to make the people move toward goodness and keep far from guilt without being aware of it themselves: what could one rely on for this, if not virtue and ritual?" Therefore, to spread instruction and improve customs, and to embody a benevolent and forbearing heart in administering auspicious punishment (Note: punishment in accord with reason), is something that a gentleman in a superior position cannot but give his mind to. Accordingly, I trace the course of earlier ages, discuss their gains and losses, set them out in detail in a chapter, and compose the Treatise on Law and Punishment.