Rise of the Samurai Lawyers

HOW A STABLE AND RELATIVELY JUST LEGAL ORDER EMERGED IN MEDIEVAL JAPAN

- STEPHEN DAVIES

IN THE EARLY 13th century, the warrior aristocracy of Christian Europe bound its ruling monarchs to a structured legal system—first with the Magna Carta in England in 1215, and then with a succession of other treaties across Europe. Slightly later, a complex code of moral norms and rules of conduct arose, aiming to restrain professional warriors. Force and power were now subjected to legal rules, and the path to constitutional government was underway.

That story is well-known to Americans and Europeans. But it is not the only such case. Something very similar happened simultaneously in East Asia. That change is the subject of an important new paper forthcoming from Peter Leeson, an economist at George Mason University. With “Anākī: The Law and Economics of Samurai Organization,” Leeson examines the birth of the Kamakura Bakufu (literally “tent government”) in medieval Japan.

The samurai were a class of skilled professional warriors, experts in deadly force. They were similar to European knights in many ways, but there was one major difference: They depended on others for any rights they had to land or its product. Specifically, they depended on the court aristocrats—the kuge.

These nobles had no real military power of their own and were not able to enforce order effectively in much of Japan. So they hired samurai, sometimes to provide military force but also as stewards and managers of lands: collecting dues from tenants, running estates, and sending income to the proprietor in the capital, Kyoto. The power between these two classes was asymmetric: In disputes between a proprietor and a samurai, judicial authority lay with the proprietor, making him a judge in his own case. In addition, the