Learning from history and connecting to the future: The intersection of legal practice and academic knowledge in practice

100 years ago, Santaro Okamatsu , a civil law scholar, left behind a vast body of knowledge in written documents and a significant legacy of achievements in the legal system and education of modern Japan and the development of legal systems in East Asia. The Institute for East Asian Legal Studies began its activities with the mission of analyzing those historical documents, which have now seen the light of day after many years, and passing them on to future generations. We spoke with Professor Emeritus Hiroshi Asako, who initiated the research, and Professor Kaya Wani, who serves as the current director of the Institute.

◆ Research activities began with an encounter with the unknown “Okamatsu Santaro Documents”

──Your research theme is “Legal Systems and Legal Culture in East Asia.” What exactly are you involved in?

Wani: To put it simply, our activities are centered on “collecting, organizing, and publishing historical documents from courts and other institutions in Taiwan and Korea during the Japanese colonial period” and “organizing, preserving, and publishing documents from those involved in colonial rule.” Our main aim is to organize and build existing legal materials related to Japanese colonial rule as a common asset for the academic community so that they can be used for a wide range of research. At the same time, from the perspective of promoting the “intersection of legal practice and academic knowledge,” we are also conducting research on the development of modern Japanese law, legal studies, and education, as well as the impact that Japan’s colonial management and legal system had on the laws of East Asian countries.

Some of the research results have been published and are available to the public, such as “Catalogue of Okamatsu Santaro Documents Held at Waseda University Library” (Maruzen-Yushodo) and “The Legacy of Okamatsu Santaro” (Seibundo).

Asako: The intersection of legal practice and academic knowledge means how the practical world of law, such as actual trials, policy planning, and legislation, is linked to academic achievements in jurisprudence and history. Researching and examining these can also help us think about the state of modern and future legal systems and society.

──As one of the results of your activities, you published “The Legacy of Okamatsu Santaro” in August this year (2024). What kind of research was the basis for this book?

Asako: This is deeply related to the background of the Institute’s founding, but it began when the family of Santaro Okamatsu, who was active during the Meiji and Taisho periods, including pioneering the study of Japanese civil law interpretation and being involved in the governance of Taiwan, donated to Waseda University Library a number of books and documents left behind by him. In 1999, the Okamatsu family decided to donate the materials, which had been stored in the Okamatsu family archives for about 80 years since Okamatsu’s death in 1921 (Taisho 10), when they rebuilt their home. This is a huge collection of approximately 7,000 books and a collection of documents that, when lined up on shelves, reaches a height of 15 meters.

The collection includes academic materials and records related to the governance of Taiwan that Okamatsu himself created, collected, and organized as he was an outstanding researcher and an avid reader, as well as materials from his father, Okamatsu Okoku, a renowned Confucian scholar and educator from the end of the Edo period through to the Meiji era. It is a collection of extremely high academic value that covers a wide range of fields from the dawn of modern Japan.

The National Diet Library was initially approached about donating the materials, but as it became clear that a catalog would be necessary to donate the materials, and creating one would be extremely time-consuming and labor-intensive, we were fortunate enough that the materials were donated to the Waseda University Library, and researchers from the School of Law and other institutions were tasked with organizing and researching the materials. It was around this time that we decided to launch the Institute for East Asian Legal Studies, taking advantage of the framework of the “Project Research Institute,” which had been launched as a place for diverse researchers to work together across the boundaries of specialized fields.

Wani: Creating a catalog of such a vast and wide-ranging material as the Okamatsu documents requires approaches from various disciplines and takes several years. In fact, experts from various fields, including law, history, political science, and area studies, as well as from other universities and the legal profession, gathered together to form a research team with the support of a Grant-in-Aid for Scientific Research from the Ministry of Education, Culture, Sports, Science and Technology. I myself have been involved since 2012, and at the time, while working at another university, I was mainly involved in research from the perspective of legal history.

◆ Learning from the wisdom of Okamatsu, who put the idea of “Where there is society, there is law” into practice

──Santaro Okamatsu is an indispensable figure when talking about the history of Japanese legal systems. What was his connection with East Asia?

WANI Kaya (Director/Professor, Faculty of Law)

Wani: Okamatsu studied civil law and private international law in Germany, France, and Italy in his twenties, and then became a professor of civil law at the same time as the opening of the Faculty of Law at Kyoto Imperial University (now Kyoto University Faculty of Law). He is known for his excellent works such as “Liability for No Fault Damages,” and is a scholar who developed German-style legal interpretation in Japan. On the other hand, he was also a person who worked hard to improve the laws in Taiwan at the request of Kodama Gentaro, who served as Governor-General of Taiwan after the Sino-Japanese War, and Goto Shinpei, who was the Chief Civil Administrator of the Taiwan Government-General’s Office.

Asako: Taiwan, ceded by the Qing Dynasty, was Japan’s first colony. There were various opposing opinions regarding how to govern it, with the “inland extension ideology” claiming that Japanese domestic laws should be applied as is, and the “special governance ideology” claiming that this was not appropriate for Taiwan, which had different language, human nature, and customs from Japan. In the end, the latter ideology advocated by Goto Shinpei and others was adopted, and recognizing that it was necessary to first investigate local customs, Okamatsu was chosen to lead the project, and the Taiwanese Traditional Customs Survey Project began. This was in 1899 (Meiji 32).

Okamatsu continued to research Taiwan’s old customs for nearly 20 years after that, while serving as a director of the South Manchuria Railway at the request of Goto Shinpei, who became the president of the company, he was also deeply involved in creating a governing system, such as drafting bills and policy proposals. However, the situation changed when Hara Takashi, who advocated inland extension, became prime minister in 1918 (Taisho 7), and Okamatsu’s tireless research into old customs and his efforts to enact Taiwan’s Civil Code based on that research ended without bearing fruit.

──Looking back now, it seems that laws and social systems are only possible if they are rooted in the culture and lifestyle of a place.

Wani: That’s right. There is a saying that “where there is society, there is law,” and the nature of law changes completely depending on the type of society that is assumed. Without that awareness, the legal system cannot function. Okamatsu’s awareness of the issues he pursued, which seems obvious today, was both old and new, and very current.

We are now moving towards a legalized society where all kinds of problems that arise in society are solved by law and the legal system, and are written down as rules. In this context, it is extremely difficult to decide how to approach customs and what to position as rules and at what level. I believe that the attempt that Okamatsu undertook 100 years ago can provide many insights for us living today.

◆ Various aspects of the era as seen in East Asian court records during the Japanese colonial period

──How have the Institute’s activities developed since it began cataloging the Okamatsu documents?

Asako: It took nine years to organize and catalog the donated documents. In 2008, they were published by Yushodo (now Maruzen-Yushodo) as “Catalogue of the Okamatsu Santaro Documents in the Waseda University Library Collection” and “Microfilm Version of the Okamatsu Santaro Documents,” and were made available to the public. Historical materials such as the Okamatsu Santaro Documents are different from public records held by the government, as they contain various notes written by people involved in their creation and use, as well as drafts leading up to their completion, making them extremely important in understanding the situation and thinking of the time.

ASAKO Hiroshi (Advisor/Professor Emeritus, Waseda University)

The next step was to start research on Japanese colonial rule and the establishment of modern law in East Asia based on the Okamatsu Santaro documents. To proceed with this, I went to Taiwan and, while examining documents related to the Taiwan Governor-General’s Office that had been left behind, I happened to be able to see the criminal trial records of the Taichung District Court during the Japanese colonial period that were stored at the Judicial Officers’ College (formerly the Judicial Officers’ Training Institute) of the Ministry of Justice in Taiwan. This was an introduction I received when I visited a Waseda graduate who was serving as the vice president of the Judicial Yuan (Taiwan’s highest judicial body) at the time. Around the same time, I learned that Professor Wang Taisheng of the National Taiwan University School of Law was working on creating a database of court records, and we decided to work together on the cataloging project, including image data held by National Taiwan University. In addition, the families of Chikusa Tatsuo and Miyauchi Tokiko donated documents to the Waseda University Library, which I organized and cataloged.

Wani: Actually, there are court records from the time when the Japanese Government General of Korea was in Korea, and the Institute has been researching and organizing these as part of its activities. By comparing these records, it is possible to get closer to the true nature of the former colonial rule by Imperial Japan.

Of course, there are various stances and approaches to looking at history, but we base our analysis on jurisprudence while also relying on history to look at the formation of the legal world in each region. This is closely intertwined with politics and economics, and requires verification from a variety of fields.

──The Legacy of Santaro Okamatsu is a work that brings together all of these multifaceted elements into a single compilation.

Wani: Yes. As a sort of summary of the results of the Institute’s activities over the past few years, we held the “International Symposium Commemorating the 150th Anniversary of the Birth of Santaro Okamatsu: Colonial Legal Systems and Academic Knowledge in East Asia” in November 2022, and this book is based on the contents of that symposium. Using this as a springboard, we would like to continue to deepen our consideration of various themes that Okamatsu has raised in the present day, such as issues related to legal systems, legalized societies, and the university system.

◆ How to preserve valuable materials and academic achievements in the digital age

──Professors, are there any research topics that you are particularly interested in?

Wani: Speaking of the relationship with legalized societies, I would like to delve a little deeper into the reality of custom research. Actually, my main specialty is the legal history of the Edo period, but I have also been interested in and worked on the legal history of the Ryukyus. The Ryukyus have deep exchanges with Taiwan, and my interest in how that relationship influenced each other’s customs and legal systems led me to join the activities of this Institute. Even in early Meiji Japan, custom research was conducted when the legal system was introduced from the West. How were the customs of each region, which were extremely different under the feudal domain system, consolidated into the legal system of the new nation? I believe that such research can provide perspectives that can be applied to the present day.

Asako: For me, the biggest task is to transcribe the Okamatsu Santaro documents. Many of the Okamatsu documents are written in characters that are very difficult to read, making them difficult to understand. If they are made public, they will not be used by many researchers. I am thinking about proceeding with the effort to transcribe them so that they can be read properly and to print them.

──At the 74th General Meeting of the Legal History Society held in 2023, discussions were held with an eye toward passing this knowledge on to future generations.

Wani: Yes. The Institute for East Asian Legal Studies also participated in this general meeting of the Legal History Society as a co-sponsor, and a mini symposium planned by Professor Asako and myself took up the themes of “Inheritance of paper-based materials and library collections” and “Challenges in the age of digitalization of court procedures.” I was concerned that the value and status of paper-based materials may be left behind behind the rapid progress of digitalization, and so I confirmed their importance and exchanged opinions on how to encourage their inheritance.

The role of researchers is not just to disseminate new research results. It is equally important to ensure that valuable historical materials and information are passed on to the next generation. Materials that are discarded as unnecessary according to current values may be valuable in 100 years. In an era where digitalization is becoming established as a given, but at the same time, the younger generation is losing their sense of paper media, how can we raise awareness of this crisis and create standards for preservation and inheritance? I think this is an important issue.

Asako: That’s right. There are systems for “special preservation” and “criminal reference records” for civil and criminal court records. For example, records of civil cases in which important constitutional decisions were made should be preserved as “special preservation.” However, it came to light that more than 80% of these records were actually discarded, and the fact that the decision on “special preservation” was left to the courts became an issue. For that reason, a new system was established at the beginning of this year (2024) to thoroughly implement “special preservation,” but my concern is whether it is enough to preserve only records of cases that have special significance for the era in the first place.

When people in the future look back at court records from 100 years ago, shouldn’t we preserve all records, not just those with special significance, so that they can understand the social conditions and court trends of the time from many cases? In the case of paper media, this is physically impractical, so the idea of “sample preservation,” which preserves a certain percentage, would be effective, and it would not be impossible to preserve all records in electronic media. Although the digitalization of civil litigation procedures has already begun, rules on how to preserve and view digitized records have yet to be created. At the mini symposium, we discussed such issues.

──Finally, Professor Wani, please tell us your future aspirations as director.

Wani: I would like to use the research results and academic materials we have obtained so far to create an environment that will enable many people, including young researchers, to tackle their own research topics without being obsessed with whether or not the results will be useful right now. I think that is the ultimate goal of this Institute.

Left: WANI Kaya (Director/Professor, Faculty of Law, Waseda University)  Right: ASAKO Hiroshi( Advisor/Professor Emeritus, Waseda University)