4. LEGAL REFORM AFTER WORLD WAR II
(1) Disappearance of indigenous factors
With the defeat in World War II, Japan was forced to make sweeping reforms in law and politics, in other words, radically transform a Prussian type of absolutist Tenno regime, a Civil Law system, to an Anglo-American type of democratic government, a Common Law system.
The surrender on 15 August 1945 was immediately followed by occupation by the Allied Forces under the command of the American General Douglas MacArthur. Orders from his General Headquarters and reactions from the Japanese government prepared the draft of a new constitution in Spring 1946, and submitted it to the then Diet under the Meiji Constitution. After discussion from early Summer to October, the new, present constitution was promulgated on 3 November 1946, and enforced on 3 May 1947. An extensive legal reform followed the Constitution, and from it emerged a new democratic system. Political reform was to prepare, support or realize this. Social reform was both provoked and encouraged by the legal and political reform.22The legal reform was primarily modelled after the American system under the international circumstances at that time. As a result, the contemporary legal system under the Showa Constitution is a mixture of both Civil and Common Law systems. This is the first aspect to be pointed out in relation to the received character of law after the war, for the reception of Western law with such a wide range may appear to have left little room for survival of indigenous law.
Truly, many indigenous factors so significant in the Meiji legal system disappeared due to the reform. Among these, the Tenno was deprived of his supreme status �eternal for ages” (Article 1, Meiji Constitution), “sacred and inviolable” (Article 3, ibid.), to be “the symbol of the State and of the unity of the people, deriving his position from the will of the people with whom resides sovereign power” (Article 1, Showa Constitution).
Further, the prevalent family system comprising the legally constructed extended family with the family-head regulating the members, fortified by the postulate of wa, was replaced by a modern system of the nuclear family which, at the same time, swept away the discrimination of sex in the family. The related basic policies declared in the new Constitution were embodied in the revised part of the Civil Code concerning family, marriage and inheritance. 23 Two other aspects of the discrimination of tenants and labourers were also invalidated by the land reform and legalization of the labour movement. The State Shinto was destined to be abolished for its “dangerous manifestation of hypernationalism” (Reischauer, 1977: 219), causing all the shrines to be freed from the official control of the government, and the Shinto ideology to be separated from the state as a genuine religion, resulting in the total disappearance of Shinto from within the official legal system. So a great deal of indigenous law was lost by the legal reform after the war.(2) Surviving indigenous factors
On the other hand, indigenous factors were not entirely lost, nor were their influences. Many of them survived the sweeping reform accomplished by foreign pressure and received law.
This is clearly seen first of all by the Japanese understanding of this radical reform. From a strict legal point of view, the reform meant a change of the Japanese polity from the absolutist Tenno state to a democratic peoples’ state, which in itself might be called something of a revolution. As a matter of fact there was strong opinion among both Japanese people and the occupying General Headquarters to instil a revolutionary nature to the reform, and accordingly to establish a new constitution without any connection to the former one. But the formal procedure to make the new constitution valid was finally chosen not by declaring establishment of a new constitution separated from the former one, but by amending the latter in accordance with existing procedures.
This was the reason that the new proposals were deliberated by the old Diet under the Meiji Constitution, which voided itself when it was replaced by the new Constitution. The new Constitution was accepted by the people with its nature of continuity from the old Constitution. Another reason for the general confidence in the new Constitution was ascribed to the continuation of the Tenno from the old Constitution, which will be discussed below for its indigeneity, even though his position and power were apparently radically changed.The problem of the continuity of the Constitution was also raised in another issue, which was whether the new Constitution was enacted voluntarily by the Japanese people, or forced on them by the Allied Powers. Those who believe the latter have ground for their opinion in the fact that the victors in the war were able to dictate terms to the defeated. Their opinion has a corollary that insists upon the necessity of voluntarily re-revising the new Constitution. Theirs is an opinion desirous of an indigenous constitution.24 In contrast, the former has rebuffed it saying that the Constitution was realized by the voluntary will of Japanese people to liberate themselves, irrespective of the apparently forced procedure of the revision. They find some indigeneity in the so-called received Constitution. These opposing factions evidence the nature of the Constitution, that it not only comprises received factors, but also includes indigenous factors, be they potential or actual. It is the objective of the following discussions to identify the various modes of indigenous factors in, and related to, the legal system under the Showa Constitution.