1. INDIGENOUS OFFICIAL LAW
Indigenous factors are found in the official legal system, being dispersed among a variety of the received forms of the state law. Those which disappeared during the legal reform had been valid mainly in the fields of public law or those of private law, the principles of which had been supported by the old Constitution, such as ie-seido, discrimination by status, State Shinto, etc.
In other words, they were characterized as absolutistic, or at least supporting the absolutist Tenno system. However, indigenous factors in a general sense must not be represented by these alone. They must include some others, indifferent to the absolutist regime or significant for their character other than in the absolutist sense. These kinds of factors, although mostly belonging to the fields of private law or technical public law, had been adopted in the Meiji legal system, and survived the Showa legal reform.Furthermore, the Meiji system had opened the gate through which indigenous factors could be legalized when their validity was disputed in actual cases. The gate remains unchanged in the present system. The general clause concerning legalization of custom in three laws is a principal example. It is first provided in Article 2 of the Horei (Proper Law Act), promulgated and enforced in 1898, to give custom the validity of the law under some conditions, but without an allegation of either party. In contrast, Article 92 of the Civil Code allows custom to regulate a transaction with the allegation of both parties. The last one has a limited application in a smaller circle of commercial matters, but surpasses another important law, Civil Code. The gate has functioned dynamically in making explicit certain indigenous factors by legalizing a variety of customs. The general clause concerning the legal validity of custom is therefore a point of tangency where the Japanese state law can absorb custom, that is, a functioning unofficial law.
The Showa Constitution does not authorize any other kinds of official law, “official legal systems prevailing in Japan which are sanctioned by authorities other than the state and which are officially authorized by the state itself.” This is a remarkable feature of the whole structure of law in Japan when compared with the other five countries in this survey. For there are found in those countries some religious, local, or other authorities, whose proper jurisdiction is officially authorized by the state, with corresponding legal systems which are administered by these authorities as independent of the state law. This feature of Japanese law may also seem strange to Western countries where established systems of religious law authorized by the state have prevailed. It is thus a unique feature of the Japanese structure of law. Under the Meiji system, two subsystems might be regarded as official law: colonial law and military law, both of which were abolished together with the Meiji Constitution. Truly they were beyond the reach of government control by Diet, Cabinet or the Court, but remained within the reach of Tenno's control under the Meiji Constitution. They were duly classified into state law, though with relatively separated jurisdictions, and into no official law other than state law.