3. INDIGENEITY OF THE MEIJI LEGAL SYSTEM

Supplemented and revised, the alleged Japanese modern legal system basically founded after the Meiji Constitution, kept developing beyond the Meiji era under the reign of Meiji Tenno, through the following Taisho era under the reign of Taisho Tenno,1912–26, and the first half of the Showa era until the end of World War II under the reign of the present Tenno Hirohito.

(1) Discrimination of tenants, women and labourers

The national policy to protect large landlords economically, politically, and legally, which was to maintain a feudal system (cf. Smith, 1959), was begun in the relatively early year of 1873, when a revolutionary modern tax law was enforced to promote a capitalistic economy in Japan. Its effect “was to recognize legally a large landlord class (many of them petty owner-cultivators), a sizeable group of part-owners and parttenants, and a smaller class of tenants, roughly in the proportion of 45:35:20” (Havens, 1974: 32). The proportion of the latter two classes increased so much that it could be said that “more than three fourths of the farmers in Japan are either partially or totally tenants, paying rentals amounting to half or more of their annual crops” at the time when defeated Japan was ordered to plan a land reform by the occupying Allied Powers after World War II (Lu, 1974, II: 209). The farm land they were cultivating under tenancy was owned by large landlords, usually absentee or non-operating, who formed a very limited number of the landlord class compared with the petty owner-cultivators. This came about in a significant sense because of the legal protection of the large landlords since 1873 (cf.

Another indigenity concerned the legal discrimination of women. For instance, according to the Civil Code adult women were deprived of their legal capacity on marrying, on the grounds that they should be obedient to their husbands, so as to preserve the wa of their families. Women were not given the right to vote even after their arrival at adulthood, as men had been (see Note 17). Women were also not admitted into a university, except under limited conditions, for they should prefer womanly virtues to higher education. Adultery by married women was criminalized in the Penal Code, while that of married men was not.

Labourers were worse off than tenants and women in legal protection. Their equal position in concluding employment contracts was formally protected by the Civil Code. But it was found in Japan after World War I that such a classical civil right in contract was of no help to the fundamentally weak position of labourers against capitalists. Some of the labourers had begun to organize labour unions, and their leaders formed proletarian political parties with a few supporting politicians. But their collective movements encountered intensive official oppression and in some instances faced criminal punishment. Even their opinions were criminalized by a law specifically enacted in 1925¹⁸to protect kokutai, and the labourers were obliged, according to kokutai, to co-operate in realizing wa with the capitalists, among whom Tenno was the largest land owner with an inviolable authority “for ages eternal” as declared in the Constitution.

The legal discrimination against tenants, women and labourers was achieved by the received form of law in conjunction with indigenous ideas and materials. Such discrimination was, however, justified only by the absolutist Tenno regime. It was destined to be abolished when the present Constitution was enacted with its ideas of liberalism and democracy. Tenants could acquire their own land through the post-war land reform law. Women's equal rights were secured in many aspects of law. And by new labour laws, labourers could enjoy the right to work, organize their unions, and strike. They were all emancipated in the official law.

(2) Jinja and Matsuri

Another important factor is the social institution of jinja (Shinto shrines) and its matsuri (rituals in and festivals for a jinja).¹⁹ The ideological foundation of the institution is Shinto which is anglicized to mean “the native religion of Japan, primarily a system of nature and ancestor worship.” Shinto is socio-culturally divided into three main forms: Kyoha Shinto (Sectarian Shinto), Jinja Shinto and Kokka Shinto (State Shinto). The first is a religion comparable with other established religions in the world with definite creeds, ceremonies, priests and subdivided orders. The second is a folk belief with activities centred on a jinja. A jinja enshrines an ujigami (Shinto god or gods) in a buraku (hamlet) accompanied by regular rituals for the god and festivals of the population. But it is not founded on established creeds or orders. Instead, it is supported ideally or ideologically by the inhabitants of the locality where the shrine is located. Being called ujiko (the children of an ujigami), the inhabitants are willing or obliged to donate specified and/or voluntary money and services for the needs of their shrine to maintain it fiscally, take part in its rituals, and celebrate their festivals for it.

The third is a political institution unique in Japanese history. The position of Tenno as the hereditary ruler of Japan was justified, on the one hand, from its first foundation, by the myth that Tenno's authority had been directly bestowed by the Creator, who is the ancestor of the Japanese people, and armed, on the other, by the legal institution that Tenno was the superior priest, able to worship the Creator and following gods, as well as being the only sovereign for that people. This is called the principle of saisei-icchi (the unity of Shinto and state). It underlay the Seventeen-Article Constitution by Shotoku Taishi in 604 influenced by the Buddhist idea. In 907 the Engi-shiki, a form of the ritsu-ryo, was enforced to make the first systematic arrangement of the country's shrines. It limited the number of official shrines to 2861, some of which were especially esteemed for their enshrining of the Creator and closely related gods, or persons who had done distinguished service during the pacification of early Japan. After three centuries or so, when Yoritomo Minamoto founded the first Shogunate in Kamakura, he enforced a hierarchical rearrangement of the shrines to give the shrine of his clan in Kamakura the highest status in order to preside over the other shrines. It also allowed a vintage shrine in each feudal domain to preside over the others within the domain. This was another saisei-icchi by the ruling warrior.

The Meiji government established the third, most systematic rearrangement of the shrines by law. It was a thoroughgoing, hierarchical system of the shrines all over the country. Most remarkable were, first, the above-said local shrine in a hamlet, which had been left out of the official legal hierarchy, was now incorporated into the lowest status of the system, with the outcome that other shrines in the same hamlet had to compete, supported by the enshrining inhabitants, for official recognition of the status, or to be merged when defeated in the competition (cf.

This was the Meiji State Shinto system. It was most exalted type of State Shinto. Because it incorporated another form of Jinja Shinto and its ideological justification was supported by the doctrine of Kyoha Shinto, the Meiji State Shinto was meant to unify the three main forms of Shinto in a system. The leading postulate was saisei-icchi in kokutai. This was disclosed to be absurd when the Meiji system collapsed, and the Japanese government was ordered to abolish such a State Shinto system by the occupying Allied Powers after World War II. The present Constitution declares emphatically the separation of religious organizations from the state.