Konden Einen Shizai no Ho (the law allowing permanent ownership of newly cultivated land) (墾田永年私財法)
"Konden Einen Shizai no Ho" was a law which was proclaimed as "choku or mikotonori" (an order under the name of Emperor) on June 27, 743, during the reign of Emperor Shomu in the middle of the Nara Period that allowed permanent ownership of "konden" (land that farmers newly cultivated). In olden times, it was called "Konden Eisei Shiyuu no Ho." It was a law that became the basis for shoen (manor system).
Original Texts
Modern Translation:
Note: Translation may possibly include some errors.
Itsubun (lost description)
However, according to an article with the same date in roll No.15 of "Shoku Nihongi" ("Chronicle of Japan Continued"), it was issued in the same way as an imperial order, and it can be understood to have included the following lost description.
(The details will be described later.)
Modern Translation:
Background
Sanze Isshin Ho (the law to permit farmers to own their newly cultivated lands for three generations) was issued in 723, and allowed ownership of konden for three generations. However, since the owner had to return their land to the state after three generations, the law did not increase farmers' willingness to develop new lands. Considering this, the government issued Konden Einen Shizai Law that allowed farmers to regard the land as their permanent property.
Impact on Ritsuryo System
According to the Ritsuryo Code which was the fundamental law at the time, all the land in the country were, in principle, state-owned, and such public lands were allotted to common people for their cultivation (this allotment was called "kubunden"), and it was stipulated that the collection of taxes be made from their harvests (this tax was called "so"). As a result, enforcement of the Konden Einen Shizai Law was regarded as an overthrow of public land which was its major premise, and it is generally considered as an omen of the breakdown of the Ritsuryo system.
However, as there was a description on 'private fields' in Article 29 of "Tatsukai" in extant Yoro Ritsuryo Codes (a version of Ritsuryo Codes revised in the Yoro era), the Ritsuryo system was not necessarily founded only on "public lands." When one reads the articles of the Ritsuryo Codes carefully, one may be able to understand the purpose of making the most use of cultivated land that were available. It may be said from this standpoint that there is a view that rather than denying the Ritsuryo Codes, the Konden Einen Shizai Law was reinforcing the aim of the law of the Ritsuryo Codes.
The original text said "by this (the Sanze Isshin Law), farmers became lazy making their cultivated lands desolate again." However, it still remains doubtful whether farmers of the third generation were really discouraged after only twenty years from the enforcement of the Sanze Isshin Law. Based on this, some view that this was the result of inducement of profit by the wealthy or large temples rather than by farmers.
Interruption of Law Enforcement
When Dokyo assumed the position of Daijodaijin Zenji (a master of Zen Buddhism and a grand minister of state) acting as a guardian for Emperor Koken on April 4, 765, cultivation of new lands was becoming quite fierce, and Daijokanpu (official documents issued by Daijokan, the grand council of state) that prohibited the ownership of cultivated lands was promulgated. It is believed that in its capacity as a government, cultivation of new land was once prohibited, for the wealthy and large temples increased their own cultivated lands by the enforcement of the Konden Einen Shizai Law.
On November 17, 772 however, when Emperor Konin ascended the throne after the demise of Empress Shotoku, and Dokyo fell from power, a Daijokanpu which permitted the ownership of cultivated lands (on condition that farmers not be tormented) was promulgated. It is believed that the government was compelled to allow resumption of land development due to the pressure brought on by the wealthy like the Fujiwara clan and large temples.
Elimination of Space Restriction Clause
As was mentioned above, the stipulation that limited the size of privately-owned land that was contained in "Shoku Nihongi" ("Chronicle of Japan Continued"), was deleted from "Ruijusandaikyaku" (rolls of assorted regulations from three reigns). Rules and regulations contained in the "Ruijusandaikyaku"were supposedly based on "Kyaku" (the Wu reading) compiled in the year of 820 under the reign of Emperor Konin, which were a collection or compilation of imperial orders and decrees of Daijokan (Grand Council of State) proclaimed provisionally from time to time in order to partially amend Ritsuryo Codes of ancient times. "Shoku Nihongi" had already been completed in 797, which was 23 years earlier than the publication of "Ruijusandaikyaku," and the sentences written in "Shoku Nihongi" are considered as the original sentence (or sentence akin) describing the imperial orders.
According to the researches of Eisho MIYAGI, Daijokanpu dated on March 1 and 5 in 811were both contained in the same "Ruijusandaikyaku," and they are believed to have been issued as a premise of various restrictions provided in imperial orders proclaimed during the Tenpyo Period. If his researches were correct, restrictions on space of land may have been the current law when "Shoku Nihongi" was compiled, and it increases the possibility that the stipulation was selected and put on record in exactly the same form. Therefore, stipulations on the restriction of space was deleted at the time when "Koninkyaku" (collection of various Imperial orders issued during Konin era) was compiled, and the sentence without restriction clause were recorded on the Koninkyaku, which are believed to have been adopted in "Ruijusandaikyaku."
As for its context, other than the pressures from persons of influence as a result of laxity in the Ritsuryo system, it was the time of slump in agriculture during the Konin era, as was evident from "Nihon Koki" ("Later Chronicle of Japan") and so on. It is considered that it was the result of policies that were formulated to preserve and expand cultivated land for emergency measures in solving financial and food shortage.
Relationship with Jorisei (system of land subdivision)
Most of the Jorisei system of land subdivision that exist everywhere in Japan except Hokkaido and Okinawa, are believed to have begun after the middle of the Nara Period. As a result, it is considered that Jori in various places was enforced around cultivated land which was developed by the Konden Einen Shizai Law.