History of Japanese Law

The history of Japanese law includes early legal codifications. As early as the 7th century, the Ritsuryō, based on Confucianism and legalism, was codified. Since 1870, Japan has increasingly oriented itself towards Western legal systems.

Pre-modern law

Premodern law was strongly shaped by the Chinese system, which was based on the philosophical considerations of Confucianism and legalism . This early Japanese law was codified in the Ritsuryō in the 7th century . In the Ritsuryō (律令) there was a great reception of the Chinese law of the Tang Dynasty . State administration, taxation and military organization were comprehensively regulated in it. The Ritsuryō also contains a catalog of criminal provisions.

Edo period

Meiji period (1868-1912)

Reorganization of State and Society With the Meiji Restoration , the structure of the state and society changed. Itagaki Taisuke's political ideas led to parliamentarianism and the first founding of parties in Japan and East Asia (1874 Aikoku Kōtō愛国公党 Public Party of Patriots, 1875 Aikokusha愛国社 Patriotic Society, 1881 Jiyūtō自由党 Liberal Party and 1889 部大同idō 楽 Kurabu Club of the Kurabu Kurabu Club Great harmony).

Reception of western law

Japan had already come into contact with Western law, especially in the form of international treaties, in the Tokugawa period . The resolution of these unequal treaties initially required knowledge of the legal systems on which they served as a basis. Another motivation for the reception of Western law was the establishment of a modern state administration that required officials and judges. Some young Japanese had already studied law in the Netherlands and tried to spread Western legal thought. The Japanese government therefore decided in 1870 to create a position for legal training in the Ministry of Justice. French law teachers in particular were invited - the best known of them was Gustave Boissonade . In contrast, English common law was taught at the Tokyo Kaisei School (today Tokyo University ). An important step by Japan on the way to a modern legal system was the establishment of the Japanese Imperial Court ( Daishin'in ) in 1875. The Japanese government gave this as a requirement:

“In civil matters they decide according to the law, if there are no laws, according to custom, and if there is no custom, according to jōri . "

A first failed attempt at codification consisted in a translation of the French Civil Code . In the area of criminal law, Boissonade developed a penal code and a code of criminal procedure, based on the French model. The codification of civil law followed, with Boissonade taking over property law himself and leaving family and inheritance law to Japanese students. The result of this work was structured according to the (French) institutional system and took over recent developments in French science and jurisprudence, as well as comparative law . It was introduced in 1890 and was due to come into force in 1893. Against this first civil code, however, violent resistance arose on the part of the common law school. The dispute soon became politicized: Progressives supported the French school, conservatives the English one, arguing that the new codification was a copy of the Civil Code and that it did not take sufficient account of Japanese tradition. As a result of the political balance of power, Parliament decided in 1892 not to put the Civil Code into force for the time being.

The authors of the Japanese Civil Code: Masaakira Tomii , Kenjiro Ume , Nobushige Hozumi .

The Japanese government then decided to try a second time and commissioned Nobushige Hozumi , Masaakira Tomii and Kenjiro Ume with a second codification of civil law, which should better take into account the Japanese tradition and the findings of comparative law. This second attempt after the pandect system was crowned with success: in 1896 the general part, law of obligations and property law, and in 1898 family and inheritance law came into force. This ZGB, which is still valid today, adopted many of the solutions from the old ZGB, but organized them according to the structural principles of the German Civil Code. In inheritance and family law, traditional Japanese institutes such as landlord and landlord succession were mainly adopted.

The increasing influence of German law was also evident in numerous other codifications from the period between 1890 and 1930: The Meiji constitution is based heavily on the Prussian constitution of the time, while the commercial code of 1899 is largely based on the German commercial code . The code of civil procedure is based on a draft by Hermann Techow . The reception of German law also took place primarily through a "reception of theories". Regardless of the legal texts, Japanese jurisprudence often contra legem introduced theoretical products of German jurisprudence: “[One] cannot [...] say that the Japanese Civil Code is a copy of the Civil Code; Japanese civil law studies, however, are a copy of German civil law studies. "

Taishō period (1912-1926)

The First World War diminished the influence of German law. Instead of going to Germany, Japanese legal scholars now traveled to the United States, England and France. Especially under criticism Izutaro Suehiros at the dogmatic Begriffsjurisprudenz they turned more to the case law and the free legal François Genys to. So after his return from the USA and France in 1921, Suehiro founded a working group with the aim of finding the living law of Japan. The legal sociology of Ehrlich and Weber also exerted an influence . The second half of the Taisho period also marked the beginning of social legislation in Japan.

Shōwa period (1926–1989)

The Japanese defeat in World War II also had a profound impact on the legal system. Even before the constitution of 1946 was enacted, an arable land reform was passed that made almost all tenants free farmers, trade unions were formally recognized, and labor protection laws followed in 1947. After the constitution was passed, there were reforms of commercial, economic and criminal procedural law. All of these reforms took place during the time of the American occupation, so American law had enormous influence. Assumptions that Japan would break out of the continental European legal system in the long term have not yet become reality; The influence of German civil law studies - namely Karl Larenz ', Josef Essers and Ernst von Caemmerers - is still great, alongside US sprinkles such as legal sociology (“law in action”), case lexegesis and comparative law.

literature

Banno, Junji: Japan's Modern History, 1857-1937: A New Political Narrative . Routledge, London - New York, 2014, ISBN 9781138775176

Jansen, Marius B .: The Cambridge History of Japan. Volume 5, The Nineteenth Century . Cambridge University Press, Cambridge - New York - New Rochelle - Melbourne - Sydney, 1989, ISBN 9781139055093

Röhl, Wilhelm: History of Law in Japan since 1868 . Brill, Leiden NL, 2005, ISBN 90 04 13164 7

Sims, Richard: Japanese Political History since the Meiji Renovation 1868-2000 . Palgrave MacMillan, New York, 2001, ISBN 9781850654476

Steenstrup, Carl: History of Law in Japan until 1868 . Handbook of Oriental Studies, Fifth Section: Japan, Sixth Volume: State, State Thought, Second Section: Law, Brill, Leiden NL, 1996, ISBN 90 04 10453 4

Vlastos, Stephen: Opposition Movement in Early Meiji 1868-1885 . In: Jansen, The Cambridge History of Japan, p. 367 ff.

Weyrauch, Thomas: The party landscape of East Asia . Longtai, Heuchelheim 2018, ISBN 978-3-938946-27-5

Individual evidence

↑ Steenstrup, History of Law in Japan until 1868, pp. 30 ff.
^ Röhl, History of Law in Japan since 1868, p. 29 ff .; Weyrauch, The Party Landscape of East Asia, pp. 25 ff., 36 - 38; Sims, Japanese Political History since the Meiji Renovation, p. 45, Vlastos, Opposition Movement in Early Meiji, p. 402 ff.
↑ ^a ^b ^c ^d ^e ^f Kiyoshi Igarashi: Introduction to Japanese Law . Scientific Book Society Darmstadt, Darmstadt 1990, ISBN 978-3-534-06914-9 , pp. 1-17 .

[1] Steenstrup, History of Law in Japan until 1868, pp. 30 ff.

[2] Röhl, History of Law in Japan since 1868, p. 29 ff .; Weyrauch, The Party Landscape of East Asia, pp. 25 ff., 36 - 38; Sims, Japanese Political History since the Meiji Renovation, p. 45, Vlastos, Opposition Movement in Early Meiji, p. 402 ff.

[igarashi_1_17-3] ↑ ^a ^b ^c ^d ^e ^f Kiyoshi Igarashi: Introduction to Japanese Law . Scientific Book Society Darmstadt, Darmstadt 1990, ISBN 978-3-534-06914-9 , pp. 1-17 .