But although there was little religious sanction of morality in ancient Japan, it by no means follows that there was no morality. We have seen that there are moral elements in the character of the Sun-Goddess as delineated in myth.[196] Law, which is the enforcement by penalties of a minimum altruistic morality, certainly existed. A Chinese author, in a description of Japan as it was in the later Han period (a.d. 25-220), says that "the wives and children of those who break the laws are confiscated, and for grave crimes the offender's family is extirpated.... The laws and customs are strict." In 490 we hear of two men being thrown into prison for crimes. The Mikado Muretsu (488-506) is said to have been fond of criminal investigation. The Nihongi condemns theft, robbery, rebellion, and non-payment of taxes, none of which matters is taken formal cognizance of by Shinto. Without some law, unwritten and ill-defined though it was, and unequal and fluctuating in its application as it must have been, the Japanese could not possibly have reached even the moderate degree of organized government which we find them enjoying at the dawn of their history.
The earliest so-called legislation which we meet with is embodied in a proclamation issued by the Regent Shōtoku Taishi in a.d. 604. On examination these "laws" prove to be a sort of homily addressed to Government officials, recommending harmony, good faith, a respect for Buddhism, obedience to the Imperial command, early rising, decorum, disinterestedness in deciding legal cases, fidelity to one's lord, and benevolence to the people. In 645 a "beginning of regulations" was promulgated. It relates to the status of slaves and their children. In the following year a set of rules was issued regulating the construction of tombs forbidding human sacrifice in honour of the dead, &c. In the same year laws were promulgated dealing with dishonesty, retaining slaves belonging to other people, bringing plaints of adultery before the authorities without having the evidence of three credible witnesses, &c. "Severe penalties" are threatened in case of their infraction. In 681 a sumptuary law in ninety-two articles was enacted. In 682 flogging was limited to 100 blows: in 689 a book of laws was distributed to all the local authorities; and in 701 the code known as the Taihōriō was promulgated. The latter was borrowed from China, and no doubt Chinese influences had much to do with the more partial legislation which preceded. Shōtoku Taishi's advice to officials is thoroughly Chinese. But the examples quoted show that such enactments were not made without reference to the wants of Japan. It may be inferred from Shōtoku Taishi's mention of "legal cases," and from the regulation of procedure in cases of adultery, that there was already in existence a body of unwritten common law by which a rude sort of justice was administered. Prisons are mentioned more than once in the seventh-century records.
Dr. Weipert says:[197] "There are in the Kojiki and Nihongi numerous instances of arbitrary punishment inflicted by rulers, chieftains, &c., or of private revenge, but nothing shows the existence of fixed punitive laws or conventions.... If we confine ourselves to the prehistoric times of Japan, we find in them no other traces of conceptions of a binding law than those handed down to us in the rituals dedicated to the Gods. It was indeed the power of the ruler which held the community together, but the idea of the society being subject to lawful restraint was to be found only in the religious sentiments of the people. To the extent of these sentiments alone can it be said that a lawfully regulated community and a consciousness of such existed in those days. Now since we take criminal law to be the publicly regulated reaction of a community against all acts of its members which are detrimental to the common interest, we can scarcely hesitate to describe the Ohoharahi[198] as the first source of Japanese criminal law." This is a special application to Shinto of the principle laid down in general terms by Dr. Pfleiderer that "the beginnings of all social customs and legal ordinances are directly derived from religion." Max Müller has expressed himself nearly to the same effect.
I hardly think that the Japanese facts bear out these views. It may be admitted that before the seventh century there were no "fixed punitive laws or conventions in Japan." But between this and mere "arbitrary punishment" or "private revenge" there is a middle term, and I submit that it was precisely to this stage that the Japanese nation had arrived at this time. A common law was in existence, unwritten and ill defined, leaving much room for arbitrary procedure and punishments, but yet a reality. It dealt, as there is evidence to show, with matters so essential to the welfare of the community as treason, rebellion, and robbery, none of which is so much as mentioned in the Ohoharahi. Indeed we could scarcely expect to find such offences noticed in it, as the application of the criminal law in these cases places the guilty persons far beyond the reach of a purifying process.
In an organized community like the ancient Japanese there must have been many torts recognized by public opinion. We know that adultery and dishonesty were punishable. Yet Shinto takes no notice of them. The only civil wrongs singled out for religious denunciation relate to agriculture. The ancient authorities enumerate, among the misdeeds of Susa no wo, "breaking down the divisions of rice fields," "filling up irrigation ditches,"[199] "sowing seed over again," with one or two other offences of a similar kind, and the Ohoharahi includes them in its schedule of sins which require absolution. But surely rights of property (we can recognize germs of them in the lower animals) are long antecedent to religion, and offences against them are recognized as offences against man before they became sins against God.
Moreover, the Ohoharahi is wanting in the first essential of a criminal law. It provides no fixed punitive sanction. It is true that the culprit was in some cases obliged to supply at his own cost the necessary offerings for the ceremony, and that practically this amounted to a fine. The original intention, however, was not to punish the offender, but to avert the wrath of the Gods. And it must be remembered that individual cases of purification were exceptional. For the offences of the nation generally, which it was the main object of the Ohoharahi to absolve, no punishment was practicable, or indeed dreamt of. The Ohoharahi fines of purificatory offerings may have contributed to a system of criminal law, but they were certainly not its main source. The case of Japan seems to prove that, in many cases at least, altruistic morality, even in the crystallized form of law, is in advance of religion. And may we not point to cases in our own country where religion withholds its sanction until the law has become well established? The following extract from the Nihongi shows that the distinction between criminal law and offences against the Gods, with their respective punishments, was recognized at an early period:--
"a.d. 404 Winter, 10th month, 11th day. The Imperial concubine was buried. After this the Emperor, vexed with himself that he had not appeased the divine curse, and had so caused the death of the Imperial concubine, again sought to ascertain where the fault lay. Some one said: 'The Kimi of the Cart-keepers went to the Land of Tsukushi, where he held a review of all the Cart-keepers' Be, and he took along with them the men allotted to the service of the Deities. This must surely be the offence.' The Emperor straightway summoned to him the Kimi of the Cart-keepers and questioned him. The facts having been ascertained, the Emperor enumerated his offences, saying: 'Thou, although only Kimi of the Cart-keepers, hast arbitrarily appropriated the subjects of the Son of Heaven. This is one offence. Thou didst wrongfully take them, comprising them in the Cart-keepers' Be after they had been allotted to the service of the Gods of Heaven and Earth. This is a second offence.' So he imposed on him the expiation of evil and the expiation of good, and sent him away to Cape Nagasa, there to perform the rites of expiation. After he had done so, the Emperor commanded him, saying: 'Henceforward thou mayest not have charge of the Cart-keepers' Be of Tsukushi.' So he confiscated them all, and allotted them anew, giving them to the three Deities."
Ceremonial Purity.--Things displeasing to the Gods are called by the Japanese tsumi (guilt), and the avoidance of such things by their worshippers is called imi (avoidance). As Motoöri points out, the tsumi of Shinto comprises three distinct things, namely, uncleanness, sin or crime, and calamity. The distinction between ceremonial impurity and moral guilt (of certain specific kinds) was probably obscure to the ancient Japanese. Certain calamities are included among tsumi because they were looked upon as tokens of the displeasure of the Gods for some offence, known or unknown. All tsumi involved religious disabilities or punishments.
Uncleanness holds a far more important place in Shinto than moral guilt. As in the Mosaic law, it assumes various forms. Actual personal dirt was considered disrespectful to the Gods, as we see by the frequent mention of bathing and putting on fresh garments before the performance of religious functions. The Ohoharahi includes the committing of nuisances among the offences to be absolved by it.
Sexual Immorality and Uncleanness.--It was probably because the consummation of a marriage was thought to defile the house in which it took place that a special nuptial hut was in the most ancient times provided for this purpose. The same idea is illustrated by the custom which existed until quite recently of sousing with buckets of water on New Year's Day young men who had been married during the preceding year. According to a novel called 'Hino-deshima' it is now the bride who is thus saluted while on her way to her husband's house. The bridegroom is treated by the boys of the neighbourhood to volleys of stones which break his paper windows. In later times sexual intercourse generally caused temporary uncleanness. Virgins were selected as priestesses and as dancers before the Gods. But there were no vows of perpetual chastity, and they married in due time just like other girls. The Nihongi mentions a case of the appointment of a princess as priestess having been cancelled on account of her unchastity. A modern Japanese writer says: "At Ise to-day Laïs opens her doors to the pilgrim almost within sight of the sacred groves. To accept her invitation does not disqualify him in his own eyes nor in the eyes of any one else for the subsequent achievement of his pious purpose. A single act of lustration restores his moral as well as his physical purity." Perhaps this puts the matter too strongly. Those shameless wights Yajirō and Kidahachi, the heroes of the Hizakurige, were troubled with scruples in this matter, which were not, however, invincible.