A doctrine of fair use

This one is old, but still has its charm:

Ōoka Tadasuke (大岡 忠相?, 1677 – February 3, 1752) was a Japanese samurai in the service of the Tokugawa shogunate. During the reign of Tokugawa Yoshimune, as a magistrate (machi bugyō) of Edo, his roles included chief of police, judge and jury, and Yamada Magistrate (Yamada bugyō) prior to his tenure as South Magistrate (Minami Machi-bugyō) of Edo. With the title Echizen no Kami (Governor of Echizen or Lord of the Echizen), he is often known as Ōoka Echizen (大岡越前?). He was highly respected as an incorruptible judge. In addition, he established the first fire brigade made up of commoners, and the Koishikawa Yojosho (a city hospital). Later, he advanced to the position of jisha bugyō, and subsequently became daimyo of the Nishi-Ōhira Domain (10,000 koku).

Ōoka was born in 1677, but did not come into public notice until he was 35, when he was appointed an obscure judgeship. When he accepted this job, he found out that there was a long–standing boundary dispute between the farmers of the Yamada and Wakayama (Kishū) fiefs. While it was obvious that the Yamada claim was the just one, however, no previous judge had been fool enough to irritate Yoshimune, Lord of Kishū, as he was very close to the shogun, Tokugawa  Ietsugu. However, Ōoka took up the case, and immediately settled it on its merits.[1] Yoshimune was so impressed that when he became shogun five years later, he took the unusual action of promoting Ōoka over hundreds of other candidates, to the important post of machi–bugyō (magistrate) of Edo (old name for Tokyo). The post of machi–bugyō combined the duties of mayor, police chief, judge, and fire marshal. (http://en.wikipedia.org/wiki/%C5%8Coka_Tadasuke)

pensive wannamote

Hmmm.. how would Ooka decide this one?

Now it so happened in the days of old Edo, as Tokyo was once called, that the storytellers told marvelous tales of the wisdom of Ooka Tadasuke. This famous judge never refused to hear a complaint, even if it seemed strange or unreasonable. People sometimes came to his court with the most unusual cases, but Ooka always agreed to listen.  And the strangest case of all was the case of the Stolen Smell.

It all began when a poor student rented a room over a tempura shop – a shop where fried food could be bought. The student was a most likeable young man, but the shopkeeper was a miser who suspected everyone of trying to get the better of him.

One day he heard the student talking with one of his friends:

“It is sad to be so poor that one can only afford to eat plain rice,” the friend complained.

“Oh,” said the student, “I have found a very satisfactory answer to the problem. I eat my rice each day while the shopkeeper downstairs fries his fish. The smell comes up, and my humble rice seems to have much more flavor. It is really the smell, you know, that makes things taste so good.”

The shopkeeper was furious. To think that someone was enjoying the smell of his fish for nothing! “Thief!” he shouted, “I demand that you pay me for the smells you have stolen.”

“A smell is a smell,” the young man replied. “Anyone can smell what he wants to. I will pay you nothing!”

Scarlet with rage, the shopkeeper rushed to Ooka’s court and charged the student with theft. Of course, everyone laughed at him, for how could anyone steal a smell? Ooka would surely send the man about his business. But to everyone’s astonishment, the judge agreed to hear the case.

“Every man is entitled to his hour in court,” he explained. “If this man feels strongly enough about his smell to make a complaint, it is only right that I, as city magistrate, should hear the case.” He frowned at the amused spectators.

Gravely, Ooka sat on the dais and heard the evidence. Then he delivered his verdict:

“The student is obviously guilty,” he said severely. “Taking another person’s property is theft, and I cannot see that a smell is different from any other property.”

The shopkeeper was delighted, but the student was horrified. He was very poor, and he owed the shopkeeper for three month’s smelling. He would surely be thrown into prison.

“How much money have you?,” Ooka asked him.

“Only five mon, Honorable Honor,” the boy replied. “I need that to pay my rent, or I will be thrown out into the street.”

“Let me see the money,” said the judge.

The young man held out his hand.

“Drop your coins from one hand to the other”, ordered the judge.

The judge listened to the pleasant clink of the money and said to the shopkeeper:

“You have now been paid. If you have any other complaints in the future, please bring them to the court. It is our wish that all injustices be punished and all virtue rewarded.”

“But most Honorable Honor,” the shopkeeper protested, “I did not get the money! The thief dropped it from one hand to the other. See! I have nothing.” He held up his empty hands to show the judge.

Ooka stared at him gravely.

“You can no longer call him thief, for he has paid you fairly.”

“I have decided that: the price of the smell of your food shall be the sound of his money.”

“Justice has prevailed as usual in my court.”

Thusly I offer compensation for what I have read, and invite you to enjoy my ridiculous blog.

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