National Language, National History and Original Law : Formation and Development of National Self-Consciousness in the Law

本研究旨在通过比较西方和日本的原始语言、历史和法律的含义，来厘清民族自我意识的发展。一些重要的结果如下。关于古代西方，已经表明了古罗马家庭的双重功能，即排斥非罗马人和融合他们。关于古代晚期和中世纪早期的蛮族法律，指出了强调罗马影响和国王立法权的理论倾向，注意到了法律形成部落集团的作用，并论证了拉丁语的问题，几乎只有在野蛮法律中才使用拉丁语言。至于中世纪德国的史学，已经证实历史著作不是作为德意志国家的历史而是作为罗马帝国的历史而写的。还有人指出，即使在中世纪晚期的历史著作中，“德国”形象也很少与宪法有关，主要与德国以外的事务有关，并且在每个地区都是不同的。与此同时，在法律书《萨克森斯皮格尔》中，作者似乎对宪法有着明确的形象，即国王通过封建关系授权的法律法院制度，国家实质上仅限于德意志王国。就日本而言，中国古典文学研究与日本古典文学研究、探究性研究与教条主义研究的双重对抗影响了明治时代日本民族史学的形成。这种学术史学通常远离国家故事，从国家的角度来评价历史人物和事件。

This study aimed at clearing developments of the national self-consciousness by investigating meanings of original language, history and law in comparison between the West and Japan.There are many points discussed within this cooperate-study. Some important results are as follows. Concerning the ancient West, dual functions of the ancient Roman family, to exclude non-Romans and to integrate them, have been indicated. As regards the barbarian laws in the late antiquity and early middle ages, the trend of theories, which emphasize the Roman influences and the king's legislating power, has been pointed out, the effect of law to form the tribal group has been noticed and the problems of Latin language, almost only which is used in the barbarian laws, have been argued.As for historiography in medieval Germany, it has been confirmed that historical works were written not as the history of German state but as the history of Roman Empire. It has also been indicated that even in the historical writings of the late middle ages the "Germany"-images were few concerned with the constitution, mainly joined with affairs outside of Germany and various in every region. In the law-book "Sachsenspiegel" meanwhile, whose author seems to have had clear image of constitution as the system of law courts delegated from the king through the feudal relationship, the state was substantially limited to the German kingdom. This has been regarded as an example of relation between law and national self-consciousness.As for Japan, it has been pointed out that double confrontation, the study of Chinese classical literature versus the one of Japanese and the inquiring study versus the doctrinal study, influenced the shaping of Japanese national historiography in Meiji-era. This academic historiography was usually far from the national story, which assessed historical persons and affairs from the national point of view.