Historical context
At the broadest level, Japanese legal history can be described as three major �receptions'6 of foreign legal influence followed by intense periods of indigeni- sation of the legal system.
The three receptions are: Chinese legal influence, particularly in the seventh century; the European legal influence at the end of the 19th century; and the American legal influence following World War II in the middle of the 20th century.7 A major question at present is whether the law reform around the turn of the millennium, from 1996 to 2005, might be described as a fourth reception of global legal influence.At the earliest stages, Japanese law was based on familial, customary and religious rules centred on clans (uji) and Shinto practices.8 For any pre-modern society this is a usual beginning, but differs from our modern sense of �law' as a set of rights that one might hold and be able to assert.
2.1 Chinese reception
Japan's first formalisation of law was heavily influenced by its learning from China.9 In the early seventh century, multiple expeditions to China saw the influÂence of Buddhism and the Mandarin Court system enter Japanese law. Japan's initial codification is said to be the Prince Shotoku Code of 604 CE (sometimes translated as Shotoku Constitution).10 The Code was a set of moral rules for offiÂcials rather than any attempt to create a set of universal or general norms. The 17 articles of the Code were based principally on Buddhist teachings influenced by the Buddhism entering Japan from the middle of the sixth century.
6 See M Graziadei, �Transplants and Receptions', in M Reimann and R Zimmerman (eds), The Oxford Handbook ofComparativeLaw, Oxford University Press, Oxford, 2006, pp. 470-2.
7 R Ishii, AHistory ofPoliticalInstitutions in Japan, University ofTokyo Press, Tokyo, 1988.
8 JO Haley and D F Henderson, Law and the LegalProcess in Japan, University ofWashington Press, Seattle, 1988, p. 3.
9 C Steenstrup, �New Knowledge Concerning Japan's Legal System before 1868, Acquired from Japanese Sources by Western Writers since 1963', in D H Foote (ed), Law in Japan: A Turning Point, University of Washington Press, Seattle, 2007, pp. 11-12.
10 ibid.
In addition to the Buddhist influence, the exchanges of the seventh century brought an adoption of the Chinese Imperial Court system of rule.[273] A primary example of that influence was the Ritsuryo Code that developed from Chinese models of codification of administrative and criminal practice.[274] Significantly, the Ritsuryo Code was not merely a translation of Chinese rules, but rather a considered modelling based on the example from China that differed significantly from the model in places in light of local practice. In this way, while both the Buddhist and Mandarin Court influences were significant in the development of Japanese law, it is important to appreciate that this never rose to a level of unreflective copying. Rather, the hallmark of the reception was of considered adaptation in light of local circumstances.
Following the influence of China, Japanese law developed for the next several hundred years largely based on local influences. In the first half of this indi- genised period, the growing independence of estates (shoen) allowed for specific locality rules to develop.[275] Moreover, with the increased prominence of the milÂitary, military law played a significant role.[276] As a result, during this period of indigenisation the applicable legal system depended both on status (for example, court official, military or peasant) and location (for example, within an estate or outside area).
With the unification of Japan under the Tokugawa Shogunate (1603-1868), the latter half of this indigenised period was marked by increased formality, decentralised enforcement within a centralised feudal system, and peace.[277] The increased formality is evident in the strict stratification of social class and the closing of the country to almost all contact outside of Japan.
The centrality within a feudal system was reflected in the complex system of retainer rules (sankin kotai) that required regional lords to spend significant periods in the capital, while enforcement of legal measures was largely devolved to the smallest unit of five household groups (gonin gumi). Finally, the extended period of peace allowed for significant development of private law, particularly around commerce, making Japan the first country for many modern financial concepts such as retention of title, futures trading, bills of exchange and limited liability corporations.[278]2.2 Europeanreception
With the modernisation of Japan in the mid-19th century following the colÂlapse of the Tokugawa feudal system and the opening of the country to foreign trade, a second reception of foreign legal influence drawing largely from Europe occurred. First, with the fall of the feudal system, Japan moved away from localised, regional and class systems with the adoption of universal and stanÂdardised education, military service and taxation.[279] Second, keenly attuned to Western colonisation risks and sensitive to the new trade agreements that ensured extraterritoriality for foreigners in Japan, Japan's leaders set out to modernise its legal system following a model that could not be critiqued as barbaric.[280] Simultaneously sending many of its brightest young leaders overseas to study the legal systems of Europe and America, and inviting leading European and American legal experts to advise it, for Japan the last decade of the 19th century was a second reception of foreign legal influence on its legal system.[281] A modern Constitution largely based on a Prussian model, which included sufÂfrage rights and many explicit human rights, was primarily drafted by the future Prime Minister Hirobumi Ito, who had studied in Europe, and was enacted in 1889. Subsequently, codes of commercial law, civil procedure, criminal law, criminal procedure and finally civil law were enacted between 1880 and 1898.[282] Similar to the Chinese influence before, while the new Japanese codes were largely influenced by the foreign models - particularly the German/Prussian model - they were not unreflective copies.
Rather, the Japanese drafters and their foreign advisers made significant modifications in light of both Japanese practice and best practice from other countries. In particular, the family law and succession law largely remained a mere codification of existing Japanese rules.2.3 Americanreception
Following the initial reception and its seemingly enthusiastic embrace of forÂeign elements through to the early 1920s, Japan turned more introspective and militaristic, eventually resulting in World War II. With its defeat in 1945 Japan entered its third reception era during the Occupation of Japan lasting until 1952. During this time, the predominately American Occupation indirectly pushed a major â€?democratisation' law reform effort through the Japanese public service that remained in place.[283] Understandably, this reform largely looked towards American models. Thus, the revised Constitution, while technically an amendÂment of the 1889 Constitution, had a very American flavour[284] and indeed was initially drafted by a group of American lawyers in the US military's General Headquarters or Supreme Commander of Allied Powers.[285] Other parts of the general laws were also similar revised, including crucial parts of corporations law, employment law, and family law, which was completely rewritten.[286]
While sovereignty reverted to Japan in 1952, it largely did not roll back the US Occupation legal reforms. For the next half century though, particularly as its economic prominence rose, Japan increasingly gained confidence in local approaches to legal issues. Thus, until the beginning of the 1990s many books were written on subjects such as the Japanese way of corporate governance or criminal justice.[287] Given the origin of many of the laws and the similarity with the foreign sources in the law in the books, the differences in applied Japanese law were primarily attributed to the uniqueness of Japanese legal institutions.
2.4 A fourth reception?
Following the â€?Lost Decade' that began with the stagnation of the Japanese econÂomy in 1991, and compounded by the realisation of the above-mentioned seismic demographic shifts Japan faces over the next half century, a comprehensive wave of law reform was rolled out between 1996 and 2005.[288] In 1996 the â€?Big Bang' of financial sector reform was implemented;[289] 1999 saw the formation of the Legal System Reform Council that proposed 13 major changes to the legal sysÂtem, including introduction of a quasi-jury system, a reconceptualisation of legal education, and a significant increase in the number of lawyers;[290] and in 2005 a new Corporations Act was introduced extracting the matter from its previous location in the middle of the German-modelled Commercial Code.[291] While some have argued that this was a second reception of American law,[292] a more subtle and nuanced investigation highlights both the breadth of international examples consulted and the uniquely domestic nature of many of the refinements.[293] As such, it is unclear at this stage whether the present period should be characterised as a foreign reception or domestic refinement. Whatever the characterisation, it is clear that Japanese legal institutions are in a state of significant evolution - one that puts a higher priority on transparency, legal standards and global norms.
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