1. BEFORE THE MEIJI RESTORATION IN 1868

Although the origin of Japanese society and government is not exactly known, law and government had been shaped since the third and fourth centuries in their indigenous form “not distinguished from other social rules” and “not influenced in any way by foreign civilization” (Noda, 1976: 20-21).

(1) First reception of Chinese law

As the government strengthened its power during two centuries which followed, Japan began to enter her first international relationship, whether in peace or conflict, with the Korean Peninsula. Traffic to and from the Korean countries paved the way for Japan's direct contact with China, which had achieved much more influential dynasties and advanced systems of enacted law, and which had also created various systems of ethical thought, including Confucianism, as well as receiving the religious system of Buddhism. The law, Confucianism and Buddhism were hastily imported to Japan and played a decisive role in moulding Japanese indigenous culture into more systematic forms.

The first systematic reception of Chinese law was promoted by Shotoku Taishi (Crown Prince Shotoku) who has been admired as a leading intellectual statesman throughout Japanese history. Kan'i Juni-kai (the Twelve Grades of Officials) instituted by him in 603 strengthened the authority of the Tenno (Emperor) to appoint officials in the new twelve grades adopted from a Chinese system embodying Confucian ethics. More significant was the Kempo Jushichi-jo (the Seventeen-Article Constitution) promulgated and enforced in 604. Its significance lay not only in the label “Constitution,” adopted in such an early year,³ but also in its value system, which brought about remarkable influences on Japanese intellectual history thereafter.

Fourteen of its seventeen articles prescribed the duties of officials. Coming before these, the first three articles declared the basic principles of Prince Shotoku's political ideal.

As is apparent from this construction, the Seventeen-Article Constitution declared a political ideology rather than positive legal regulations; it was a mixed product of the indigenous Tenno system and received Buddhist and Confucian ethical ideals (cf. Nakamura, 1970). However, mixed factors were assimilated with one another as years went on, thus comprising an indigenous politico-social postulate in later years – the principle of the Tenno- governed state and the ideal of wa among the membership of the group. During a long period after, the authority of Tenno and the idea of wa may have sometimes lost their validity, just as declared in the Seventeen-Article Constitution, but they have still kept their influence upon Japanese politics and society, recurring in Japanese history, especially at times of national crisis.

Their first recurrence was invoked when the heads of influential clans attempting to usurp the Office of Tenno were destroyed by a legitimate prince and an assisting court noble in a coup d'etat in 645. The political reform, called Taika Kaishin, was followed by a most thorough legal reform, in order to provide firmer ground for a centralized state. The model of the legal system was taken from the Chinese one – the codes systematized under the T'ang dynasty. The system comprised four parts: ritsu (sanctioning laws), ryo (admonitory laws), kyaku (supplementary laws), and shiki (particularized rules); it was thus called the ritsu-ryo seido (system).

This might be seen to be one of the most comprehensive examples of the reception of law in human history. In reality, however, as Yoshiyuki Noda states:

“The system of ritsu-ryo did not stay in favour for long. The cultural milieu of Japan differed considerably from that of China, which made it difficult for the laws to be assimilated. Most of the provisions soon fell into disuse, and around the legislative texts more and more usages of an administrative or judicial nature developed, with the result that the basic text soon became obscure or was forgotten.” (1976: 24; italics mine.)

The Japanese reception of Chinese law was thus an exercise that brought few substantial effects. And the systematic reception of foreign law by Japan was not tried until after the Meiji Restoration. Seen from this point of view, the Japanese legal system thereafter has been primarily of an indigenous nature.

(2) Later development

Such reception of law should be carefully assessed in relation to indigenous Japanese law. For instance an area where the received Chinese system was best preserved was that of legal regulations in the Imperial Court. The main part of the Imperial regulations concerned the status and office of the various huge (court nobles) working for Tenno, being thus called kuge-ho (court nobles law). However, its relative importance was very limited, because although Tenno cherished a unique indigenous authority over it, the influence of Tenno and the huge had to decline as the bushi (warriors) became dominant, until the latter finally established the Bakufu (Shogunate) for Tenno at Kamakura in 1185. The legal postulate of buke-ho (warriors law) which founded the Bakufu may be another example. The influential warriors used to be appointed by Tenno to various grades in the kuge-ho; however they may have been real rulers and the appointments may have been nominal.

“Generally the law of the era [early feudal periods] is of customary nature, and morality occupied an important place in it.... The system of morality of the bushido rests in Confucianism but, in contrast to the moral concepts of the preceding era when Chinese ideas were followed blindly, the bushido was formed in a spontaneous manner in the daily life of the bushi. However, it must not be forgotten... Buddhism penetrated into the daily life of the people, and its influence was very great on the bushi.” (1976: 30–31)

The Japanese reception of Chinese law was thus rather an interacting process between received law and indigenous law as the Japanese saw it. We may reasonably characterize the resulting development of Japanese feudal law as indigenous, especially when compared with her reception of Western law in modern times.

The indigenous law which prevailed throughout feudal, pre-modern Japan is characterized by differentiation of social classes. The major classes were bushi or buke and shomin (commoners). The former was regulated by the elaborate warriors’ law, written or unwritten, divided into the general law of the Shogunate and the particular laws of individual feudal domains. The latter comprised peasants, under the official control of the warriors law – who customarily developed community law and land law, and town dwellers – who also developed town law and merchant law in their circles. The remarkable minority classes were the court nobles, who preserved the ritsu-ryo system and its variations, and the priests, whether Buddhists or Shintoists, who enjoyed relative autonomy within each sect.

However variously it may have been differentiated, Japanese law during these periods⁶ is characterized by some features commonly found in all varieties when compared with foreign laws. Among them are some legal postulates which remained functioning through the later years of modernization. Main ones are the authority of Tenno and the ideal of the Tenno-govemed state; the highly valued ideal of wa in human relationships; the principle of kazoku-seido⁷ (family system) and its fictitious extension among social groups; and the system of mibun kaiso-sei (status hierarchy, or the hierarchical order of the family or person by status), and related authority of persons of higher status, with the obligation of the lower to observe their bun or bungen (restrictions attributed to one's status). They will be described in later pages insofar as they function in contemporary Japanese society.