Rise of the Samurai Lawyers
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 shiki—the warriors’ bundle of rights attached to the land—were held on an almost at-will basis; a proprietor could easily terminate them. This led to exploitation and abuse, to the increasing fury of the samurai.
The kuge were able to get away with this for a while, because the samurai faced a collective action problem: The only way to use their military power against the court would be for a sufficiently large portion of their class to cooperate. Eventually this happened, in the Genpei War of 1180 to 1185. After his victory in that conflict, the samurai leader Minamoto Yoritomo created the Bakufu and based it in the city of Kamakura. After his sudden death, the Hōjō clan consolidated the institution.
The Bakufu was not a government that ruled all of Japan. It was a corporate body of samurai that provided governance services to its members, who were no longer under the jurisdiction of the court. The kuge government still existed and continued to exercise powers, but not over the members of the Bakufu. And the Bak
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