2. ALLEGED MODERNIZATION OF LAW IN THE MEIJI SYSTEM

(1) Systematic reception of Western law

The Meiji Restoration means, literally, the restoration to the Meiji Tenno of the sovereign power over all of Japan from the Shogun Tokugawa who had been the de facto ruler of the country.

“All this does not mean, however, that early Japanese law has no place in an extensive or profound study of contemporary law. There may be a marked difference between the modern and the old law at the level of state law, but at the level of living law there was no break in continuity. The latter evolved spontaneously and unconsciously. Historical continuity interrupted in the conscious continues in the subconscious, and this subconscious factor plays an important role in the social life of the Japanese people today.... The relationship, between the old and the new law is one that has not yet been fully studied, and the historical study of Japanese legal thought itself is still a virgin field.” (ibid.: 39; italics mine)

The author is right in declaring the existence of indigenous factors still functioning in contemporary modernized Japanese law as living law, but he left unattempted its further exploration, except for limited mention of the validity of custom and jori (reasonableness) and discussions on giri ("the manner of behaviour required of one person to others in consequence of his social status"), (ibid.: 217–224, 159–183).

Contemporary Japanese law was founded by the overall legal reform following the Meiji Restoration. But, as is well-known, it suffered a considerable change after World War II, which caused or promoted disappearance of some indigenous factors that had survived in the Meiji received system. Some comments on the period before World War II may be useful for a more correct understanding of the situation.

First, main legislations after the Meiji Restoration⁹ are listed.

(2) Received and indigenous factors: Especially of the

Constitution

Some remarkable features of Japanese reception of Western law by the above codification are found in the underlying listed facts.

First, the reception was not simple adoption from a single model. For instance, the Constitution was truly modelled after the absolutist Prussian one. But it was adopted after a thoughtful consideration by Japanese political leaders who compared the various Western constitutions with one another, ultimately, unanimously adopting a conservative policy. Such a policy as a result of comparative consideration was approved by many “prominent men of the Western world” at that time (Takayanagi, 1963: 9).¹⁰ This means secondly that the Japanese reception of a constitution was not imposed, but voluntarily achieved by her own choice, even though the choice was made in unavoidable international circumstances. The comparative consideration, and the voluntary nature, left room for the survival of indigenous factors.

Thus, the Japanese reception of Western law in the Constitution was an interacting process between received and indigenous factors, sometimes an amalgamation or coexistence, sometimes a collision or struggle between them. The power of Tenno declared in the Constitution and prescribed in other laws will pointedly illustrate this process.

In the Constitution, the indigenous authority of Tenno was armed with a received absolutist character. Tenno was the only ruler holding sovereign power. The people were subjects without sharing any powers. As a result, the Diet, not being the representative of the people, was no more than an organ to assist Tenno, without any power of its own. In fact, the Diet was able to enact statutes which the government had to obey. But there were two powers of Tenno beyond the Diet.¹¹ One was to issue Imperial Ordinances, whether to modify the prescription of the statute or to establish any measures besides the statute for national well-being as Tenno saw fit. The other was the prerogative of the Supreme Command which developed the military law independently of the government. Thus, the absolutist power of Tenno¹² was truly prescribed after the received Prussian model. But the indigenous authority of Tenno had not wholly been covered by the received system. It required another form to embody itself into a valid, normative system. The concept of kokutai (national polity or national structure) was developed for this reason.

Briefly, the essence of kokutai was the reign of Tenno, as declared in Article 1 of the Meiji Constitution, that “The Empire of Japan shall be reigned and governed by a line of Emperors unbroken for ages eternal,” and, as expressed by a foreign observer, “the deep spiritual relationship between the Tenno and his people” (Oppler, 1976: 49), which required an ethical code.

“There was an unmistakeable reaction to the rapid pace of Westernization, and a desire to return to the purity of �Japanism.’ It served to indoctrinate generations of school children, through periodic public readings of the rescript and through required memorization, but it was repudiated in 1948 by the second post-war Diet.” (Lu, 1974, II: 70.)

The Japanese people were much more familiar with the Rescript than the Constitution. For they could repeatedly recite the words and sentences every time and everywhere together in the company of others,¹⁴ and the Rescript stated systematically the daily ethics which they were in reality performing or ideally aiming to perform. The Rescript was the supreme constitution of the Japanese ethical system, while the legal Constitution was the supreme code of the Japanese legal system. The leading postulate of both systems was one and the same: kokutai. The principles, values, ideals and authority underlying the Rescript was thus nothing but the legal postulate of Japanese law under the Meiji Constitution. It was systematized by a Confucian idea. But the essence was indigenous, for it was a recurrence of the principle of the Tenno-govemed state and the ideal of wa among the membership as formulated by Shotoku Taishi about thirteen and a half centuries ago.

(3) Indigenous factors in the family system

Similar processes took place in other legislation. Most noted among them was the Civil Code, which was forced to be rewritten when it was faced with strong opposition to the promulgated system of family and inheritance.

Indigenous factors struggled against received factors so successfully that they let the authority of Tenno and the wa of family survive beyond the rushing modernization of law after Western models, in both legal systems and ideal postulates. Still many other indigenous factors have also survived. Those still functioning in contemporary Japanese law will be enumerated later in detail. The others, which lost raison d'etre and function during the legal reform soon after World War II and during preceding years, are briefly mentioned below.