Japanese Law as a Figure of Comparative Law
Professor Michiatsu Kaino
The cover title represents the issues we have been studying in recent years at the Waseda University Institute of Comparative Law. “Identity of Japanese law” has also been a study subject of the Institute of Comparative Law for the last few years. In my opinion, these two mean the same.
The study subject, “identity,” has been sometimes questioned probably due to the “self-centered = exclusive” nuance this concept has. However, as one will soon realize when doing a research or communicating with others in a foreign country, when we discuss about Japanese law, we are often put into the situation where we have to explain the “whole” characteristics of Japanese law due to a low level of understanding of Japanese law. This means that we need to prepare for an answer to the question, “what is Japanese law?” It is certainly not enough to correctly explain about Japanese law by saying whether it is continental law system or common law system. The critical difficulty is that there are virtually no materials written in western languages, particularly English, to teach Japanese law. This does not necessarily mean that the level of Japanese legal study is low. “Identity” means, in short, the fact that Japanese law itself is a product of comparative law. If there were any theory that can explain Japanese law in a few words, it would be no wonder if Japanese law takes a leading position in the comparative law arena. Unfortunately this is not the case, and we often feel frustrated.
Japanese law has characteristics of “comparative law” because of the reception of law in the Meiji era. The codification of law was conducted by the Meiji government at a staggering rate of speed to eliminate unequal treaties and extraterritorial rights. Much research is carried out on this process, but in short, it was urgent for the Japanese government to create westernized laws to press powerful European and American nations to revise unequal treaties imposed upon it. Japan succeeded in “cutting off” all its old laws with a top-down approach by using this “external pressure,” an approach unique to Japan. The effect of this is often discussed in recent years in relation to the land-law-related issues, such as transformation of various communal rights to the land that existed in the old era to the modern private ownership rights, and consequent adverse effect of private monopoly over land by land ownership.
It is important to remember that the aforementioned codification was possible in Japan because Japan already had the following infrastructure and foundation of what could be called a practice of “comparative law”: a judicial system centered on the Court of Cassation (Daishinin) and prefectural courts was in place; law schools directly operated by the Meiji government such as Meihoryo and Justice Department Law School existed and these schools offered French law education; there were other national schools competing with the aforementioned law schools, such as Kaisei Gakko and Teikoku University offering English law courses; private law schools mainly offering French law courses, such as Meiji University, Hosei University, Senshu University and Kansai University were founded and competing with English law-centered universities such as Chuo University, Waseda University and Nippon University; and most of the professors of these universities had studied in Western countries. Equally important was the contribution made by so-called “hired foreigners” who were highly educated. Among them, a visit of Boissonade in 1874 was of particular importance. His first lecture at the Justice Department Law Schools was on “natural law.” Boissonade is the drafter of Crime Control Law (equivalent to current Code of Criminal Procedure) and the old Criminal Code that replaced old Penal Code and Revised Penal Code that were based on the old Chinese system. It is also noteworthy that the first proposal he presented to the Lord Minister of Justice Takato Ooki was “Proposal to Abolish Torture.” Although the concept of natural law he attempted to convey was not quite accepted, the introduction of German historical jurisprudence had important effects. The Civil Code drafted by Boissonade was enacted in 1890 and was scheduled to be promulgated in 1893, and the Commercial Code drafted by a German Roesler was also enacted in the same year and was scheduled to be promulgated in January 1 of the following year. However, the promulgation of both Civil Code and Commercial Code was postponed due to the establishment of Code Examination Committee, which revised the entire Civil Code and substantial part of Commercial Code. This revision was driven by a rapid rise of scholars inclined to the German jurisprudence. No detailed explanation can be given in this article as to the background of dominance of German jurisprudence school at that time, but in short, the Meiji Civil Code, which is the current Civil Code, that replaced the Boissonade’s Civil Code was drafted based on the first draft of German Civil Code and promulgated in 1898, amazingly two years earlier than the promulgation of German Civil Code in 1900. Japan accomplished unbelievable feat to promulgate a law much earlier than the promulgation of its mother law in their county!
Due partly to the fact that the first draft of the German Civil Code was later revised with strong opposition of Gierke and others, the Japanese Civil Code was strongly influenced by “Pandekten jurisprudence” that was completed by Windscheid rather than the German Civil Code. Even after the promulgation of German Civil Code, the Japanese Civil Code continued to be influenced by German jurisprudence and Japanese civil law study was once exclusively based on German law. However, as Professor Eiichi Hoshino verified in his study, there are some French influence at the base of Japanese Civil Code and this mixed nature of Japanese Civil Code is particularly noteworthy. For example, although the Code distinguishes “Real Rights” (right in personam) from “Claim” (right in rem), French-style principle of will theory and requirements to assert against third parties are adopted in transfer of real rights; and in tort, it adopts the principle of comprehensive provisions as seen in Article 709 of the Civil Code, instead of German individual provisions.
In addition, as Professor Yoshio Hirai verified in his study that the principles applied in a famous 1854 English case, Hadley v. Baxendale, are included in the Japanese Civil Code in relation to “damage” and “foreseeability” that are becoming more and more important in connection with “European Tort Principle” and “Contract Principle”, the influence of English law, i.e. common law, on the Japanese Civil Code is also apparent. These characteristics of Civil Code alone prove that Japanese law itself has characteristics of comparative law. The insight of scholars in the Meiji era deserves to be praised, but their study could not go beyond “imported study.” Since law itself was “imported”, legal thinking – interpretation and administration of law in consideration of the norms and the huge background behind it – could not but be diluted. I would like to emphasize that the study on comparative law and legal history was the main contributing factor to the change of this situation.
One of the important issues in the current process of unification of Europe is unification of law. This does not mean that unification of law on a global scale that was once a dream of comparative jurisprudence is now being discussed. As well-known, in Europe, there is a tradition of “ius commune” derived from the early Roman law. This “ius commune” was considered to be a supplemental source of law that supplemented local laws and customary laws. However, its role was said to have ended as a result of establishment of codes in each country led by the establishment of French Civil Code. The European Parliament passed resolutions in March and September 2006 that it would request the European Commission to take the initiative on the establishment of European Contract Law and European Civil Code, and the European Commission resolved that it should work towards the creation of these laws. Apart from this movement, since 1982, a committee consisting of scholars called “Commission on European Contract Law” (commonly known as Ole Lando Commission) has been working on the establishment of model law for the future Uniform European Contract Law, and in 1995, 1999 and 2003, it completed the Principles of European Contract Law (PECL). In relation to this, there is an argument on whether or not 2001 revised German Law of Obligations adopted the PECL.
With this background, the current situation in Western Europe is that comparative law study as well as legal history study is undergoing a renaissance. It is important to note that, as seen in the response of European countries to the financial meltdown originated in the United States, in the midst of globalization, the comparative law study in Europe is now seeking harmonization of law in a more pluralistic form, unlike the unification of law previously sought.
However, there is more than one stream of such study. The Institute of Comparative Law held, as part of events celebrating its 50th year, a symposium on December 8 and 9 2007 under the title of “The Path of Pandekten” (formally, “Legal Terminology in the Globalization Era: Comparative Study on Transplant of Law in Europe and Eastern Asia”). In this international symposium, the Director of the Institute of European and Comparative Law of University of Oxford, Professor Stefan Vogenauer, named two renowned scholars, Helmut Coing and Reinhard Zimmermann, as comparative law scholars who were calling for a pursuit of “in-depth study from basic comparative and historical perspectives” before pursuing the unification of judicial system and codes at the European level. He also indicated that there were also criticisms against their insistence as “fruitless regression to the old origin.”
In any event, it is true, in the context of aforementioned Principle of European Contract Law, that the meaning of contract in the present time will completely differ depending upon how contracts are perceived – whether the will of the parties should be emphasized or its function as a tool to smoothly operate the market should be emphasized. This argument is not irrelevant to the discussion on the law of obligations in the Civil Code of Japan that need to be revised urgently. The theories of Professor Zimmermann, who is a teacher of Professor Vogenauer, are originated from the issues raised by the contact of common law in South Africa with European continental law or Roman law, and are dynamic. The temporal axis of comparative law perceived in his study is different from that of traditional comparative law. It will have a profound meaning to re-verify, as the extension of “The Path of Pandekten”, “in-depth study from basic comparative and historical perspectives” on the basic legal concept of the Civil Code that existed at the time of enactment in relation to the “Pandekten” system that is clearly being received in a different manner in Eastern Asia. Similarly, it is my hope that, in collaboration with the current leading comparative law scholars in the Western and Asian countries, we could realize a plan to verify: his deep thinking regarding the basic concept of law in relation to the question whether the principles of good faith, fair trade and other versatile principles can be incorporated in the “Principle” as a soft law at the European level; and his intellectual work that goes back to the Roman law and discusses about laws in European continent and England at a horizontal level including a discussion from historical and comparative perspectives.
I believe that, by doing so, we can find a clue to resolving the urgent issue that is being exposed through the establishment of American style “law schools” in Japan, namely whether or not study of history and basic theories and study of interpretation of law should be separated or united in a modern manner. The comparative law study is equally important as legal history in the same context. The modern resurgence of perspectives that have been lost since the birth of modern era and modern nation state is interconnected with these issues - this is the message from the Institute of Comparative Law and we look forward to receiving response from the audience abroad.