淸代土地法秩序における「慣行」の構造

Abstract

The legal system, as it applied to land tenancy and real estate dealings in the Qing 清 period, was based mainly on custom and had little recourse to statute law. As a result, research regarding the details of particular customs related to real estate is not insubstantial. According to this research, it was generally accepted that custom was considered to have the same value as "common law". Shiga Syuzo 滋賀秀三 recently pointed out, having studied the source of law in Qing civil trials, that unlike western common law, the customs of the Qing period were not adopted as the source of law. At the very least it is clear that these customs of Qing period China differ from premodern western common law in that they are based on different models and occupy different social positions. In this paper, what kind of position the civil customs of Qing period China occupied, in the society of its time, will be actively discussed. In the first section, what concept the local authorities had of these customs and to what degree they could exercise some influence over these is discussed. In the second section, what kind of role these customs played in relation to the individual behaviour of the people of the region is discussed.