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

本研究的目的是通过考察西方与日本在原语、历史和法律意义上的比较，来厘清民族自我意识的发展脉络。这次合作研究讨论了很多问题。一些重要的结果如下。关于古代西方，已经指出了古罗马家族的双重功能，即排斥非罗马人并使他们融合。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，注意到法律对形成部落集团的作用，并对几乎只在蛮族法律中使用拉丁语的问题进行了争论。在中世纪德国的史学方面，已经证实历史著作不是作为德意志国家的历史而写成的，而是作为罗马帝国的历史。甚至在中世纪晚期的历史著作中，“德意志”的形象也很少与宪法有关，主要是与德意志以外的事务联系在一起，并且在各个地区各不相同。与此同时，在《萨克森明镜》一书中，其作者似乎对宪法有着清晰的形象，即通过封建关系由国王委派的法院制度，国家实质上仅限于德意志王国。这被认为是法律与民族自我意识之间关系的一个例子。对日本而言，中国古典文学研究与日本古典文学研究、研究性研究与教理研究的双重对抗影响了明治时期日本国史的形成。这种学术性史学通常远离民族故事，从民族的角度来评价历史人物和历史事件。

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.