Law & Society in Japan
Class 1: An overview of the Japanese legal system and theories of legal transplant
Lecture + readings
This class provides a general introduction to the origins and features of the modern
Japanese law, by examining the history of Japanese legal reforms as a case of ‘legal
transplant’. The modern Japanese law has come under the influence of the ‘Western’
laws: French, German and North American. What then was the outcome of such
‘import’ of numerous foreign statues? We will examine this question further with
cultural aspects, by an example of organ transplant and the transformation of
concepts of ‘rights’ in Japan.
INTRODUCTION
Socio-legal studies: how law is used and practiced in practice (‘living law’).
In this course, Japan will be used as an example to use socio-legal studies.
Main questions of this course:
What does law in Japan look like and how does it relate to the socio-cultural and
political context there?
What are the important theories to understand the relation between law and
society, and how can we use them to study laws of a specific country?
Japan is often considered ‘unique’, with a common explanation be the fact that it is
an island country. On the other hand, it is a proud member of international
community, as one of the countries considered ‘modern’ or ‘developed’ in Asia.
If Japan is so ‘unique’, what about its legal system? What are the particularities of
Japan’s legal system, and how its legal rules and practices interact to respond to the
globalized environment? This course explores the relationship between law and
society with examples from Japan’s legal system, particularly its constitution, labor
law, civil law, criminal law, and international law. Particular attention is devoted to law
‘in action’ and ‘informal’ procedures and practices relevant to the functioning of
national laws and policies. As will become clear, ‘informal’ procedures and practices
– that is: procedures and practices not strictly governed by formal legal rules – have
been an important, institutionalized part of the practical functioning of these laws and
mechanisms. This ‘institutionalization of informality’ can be understood against the
government’s historical efforts to prevent ‘over-juridification’ of society as well as a
‘rule by law’ approach to governance. Besides examining socio-cultural contexts in
which the Japan’s legal system operates, the impact of recent rule of law oriented
(and at times politically motivated) reforms will be addressed.
BACKGROUND MODERN JAPANESE LEGAL SYSTEM
Related quiz-question: What is the historical background of the modern Japanese
legal system (since 19th century), and how does the background impact the current
system?
,Related article: Introduction to comparative law - Zweigert, Konrad & Kötz (1998).
Four meassure points in legal history of Japan since 18th century:
1. Tokuwaga law
o Japan came under the influence of the highly developed Chinese civilization at
an early stage. In the 7th & 8th centuries the rulers of Japan were great
admirers of Chinese intellect: literature, art, Buddhism & pattern of state.
o In Japan there was a hierarchy of salaried officials and emperors (Mikado’s)
with individual omnipotence. Tho from the 12th century on really the Shogun
(title for military leaders, appointed by the emperors) had the real power. After
many wars between powerful families in an attempt to win the Shogunate,
which led to an extended period time of unrest, the situation became stabilized
under the Shogunate of the Tokuwaga family (1603-1867).
o At that time the country had a strongly feudal and stratified social structure
(craftsman & tradesman → farmers → priests, doctors, scholars, officials and
soldiers of the princes (predominantly from the Samurai class) → the Shogun).
Social philosophy best adapted to this kind of society was Confucianism
o Tho a comprehensive courts system developed in the course of time,
disputes of 'private law' were mainly resolved, just as in China,
conciliation procedures in the relevant social groups.
o See more in class 4
2. Isolation policy (Sakoku; 1633-1853)
o Japan closed doors to almost all other countries. Relation- and trade-building
Japan with other countries was very limited. Only a few Dutch and Portuguese
traders were allowed, and had to stay in a specific place (Desima, Nagasaki).
One of the factors was that they were afraid of the Christian influence in
Japan. So at that time, the government suppressed Christianity in Japan
and Japanese Christians needed to hide their faith.
o Common Japanese people were kept from leaving the country.
3. Re-opening & import foreign laws (1854-1898) = 1st wave of legal system
reform
o Early 18th century: relaxation of ban on import Western books and Western
technology played some part in the industrialization (iron; shipbuilding).
o 1853: American black ships arrived in Japan, to demand the re-opening of the
country. There was a high demand from America and other Western countries
for this to happen. Japan still used medieval technology to fight, which made
this a big threat.
The treaties imposed on Japan were unequal, and in it foreigners enjoyed
extra-territorial status, which means they are exempted from criminal and
civil law. Instead these matters were handled by consular courts led by
foreigners. So no full control over legal matters relating to foreigners.
o Led to much opposition in Japan, fuelled by xenophobia and a growing desire
to get rid of the Shogunate. The Emperor became the head of this opposition.
1867: Position of Shogun so weakened that he had to withdraw and place
full governmental power in the hands of the Emperor
Changes:
, The country entered into closer links with foreign nations to learn from their
technical and scientific knowledge, which had some influence.
The old feudal state had been changed into an absolute monarchy,
admittedly retaining its patriarchal social structure
Made Japan into a constitutional monarchy in 1889.
All powers of decision remained with the Emperor, but;
Lower House: people voted by wealthiest citizens (2% population).
Upper House: people noble by birth or by imperial accolade.
o To abolish the unequal treaties and to preserve Japan’s independence, Japan
was in need to establish a Western style of laws and courts, to show the other
countries that Japan has a modern legal system that can treat foreigners fairly.
Prof. Boissonade (French) got the task to draft a criminal code.
1880: Criminal Code (strong influence French law).
Prof. Boissonade (French) then got the task to draft a civil code
Prof. Roesler (German) got the task to draft a commercial code.
Both presented at the same time. However there was much opposition, mostly
toward the civil code (civil law controversy). The Japanese parliament
wanted more attention paid to traditional legal institutions. Both drafts were
shelved.
The preparation of the civil code was now given to a commission consisting
of three Japanese professors.
1898: Civil Code & new constitution (Strong influence German law)
a. German civil code was rated as the most mature product of the
continental art of legislation;
b. German civil code answered to the tendency of Japanese legal
scholars to systematic theorizing;
c. German civil code was a product of the German Empire, whose
political stance must have been appealing for conservatives;
d. French civil code turned out to have several technical defects.
1899: Commercial code (also strong influence German law)
It was only in family law and law of succession that the draftsmen adopted any
number of Japanese institutions, notably the so-called 'family system'. These
laws have a lot to do with values. So there came to be a sort of mixture
between Western imported laws and Traditional Japanese norms and family
systems.
o This legal reform is seen as one of the factors behind Japanese
transformation into an economy and military power. Because of the
constitutional defects, the military started to exercise more control over foreign
and domestic affairs, with ultimately led to the defeat of Japan in World War II.
4. The US occupation (1945-1952) = second wave of legal system reform
o Led by Douglas MacArthur (Supreme Commander for Allied Powers) and
Emperor Hirohito.
General headquarters consisted of US civil servants and military personnel
o The occupation caused various reforms, which changed economic regulation,
family law, criminal procedure and the core system itself. Based on US
models.
, The most controversial reform is Article 9 of the Japanese constitution, said
to be forced and made by the US, which says renounces the country of
starting a war and saying it’s not allowed to have land, sea or air forces.
Trying to change this was very hard. The article still exists, but Japan
does have armed Self-Defence Forces which, by accepted broad
interpretation, are allowed to provide material support to allies engaged
in combat internationally.
Some say the constitution should be amended, however, and that the
law should be changed to one that has the autonomy of Japan, instead
of another country.
o Influences on legal studies: much less of purely dogmatic approach but
producing many more studies of the interaction of law and society and the
practical operation of individual legal institutions.
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Such studies confirmed the perception that imported legal rules need to be
understood and applied in a manner suited to special conditions country and values
of its people. Thus in last few years Japanese legal scholarship has increasingly
emancipated itself from foreign models and become increasingly conscious of its
autonomy.
Even though in Japan there were different imported statutes with Western influences,
it turned out they had little practical effect and didn’t become ‘living law’. The Western
legal ideas, mainly the focus on individualism, did not suite the traditional legal ideas
of Japanese society, which gives much importance to social bonds and the individual
place in the family, kin-group, village community, membership of the guild,
relationship with landowner, etc. After all industrialization changed very little in the
social structure of the country. The Western legal and judiciary system are therefore
barely used by the Japanese as they’d rather settle their agreements through
arbitrary and peaceful conciliation (rooted in Confucian tradition) than bring it into the
open by litigation.
E.g. marriage disputes are carried by an external middleman, disputes between
neighbours are preferred to be settled amicably, traffic accidents are solved in
mediation offices, contract performance are negotiated in compromise, etc.
o A judge must always apply abstract, impersonal, and schematic rules of law,
and usually ends up by handing down a decision which does right to one party
at the price of doing wrong to the other.
o In Japanese thinking a person owes a duty of gratitude to who renders a
service or confers a benefit, and tho this duty isn’t to be adverted to, let alone
sued on, but one can expect it to be acted on (unwritten, ethically binding).
Even if not possible to reach agreement, polarized procedure before the state
judge may still be avoided. Japanese law offers the parties a special statutorily
regulated arbitral procedure On the request of a party the court may set up an
arbitral committee containing two or more laymen under a judge whose chairman-
parties to the dispute, listens to what they have to say and tries to move them
towards a friendly agreement.
