Notes

1 Five books are recommended for reference in English to contemporary Japanese law: Ishii, 1969 for description of legislations in the Meiji era; von Mehren, 1963 for collection of articles on post-war legal reform; Noda, 1976 for comparative and philosophical perspectives; Tanaka, 1976 for inclusion of useful materials; and Coleman & Haley, 1975 for bibliography.

2 The controversy was latently originated when Bohannan reached the idea of differentiating “folk system” from “analytical system” in his monograph (1957). After exchanging attacks and rebuttals, Gluckman and Bohannan had a direct debate during a conference (Nader, 1969).

3 The label is the same as that of the basic law of the modern state. But the meaning used in the Shotoku law is different from our modern usage; it means virtuous precepts of a philosophical and religious, rather than a legal nature.

4 The English translation of the Constitution is by W. G. Aston (1896) with minor revision by the present author.

5 The text of the Taiho Ritsu-ryo was lost except for fragmental quotations in some other books. The text of the oldest extant Japanese ritsu-ryo is the Yoro Ritsu-ryo promulgated in 718.

6 Five book are available in English for detailed research of these Japanese laws. Wigmore, 1967–79 is a voluminous collection of material related to law of contract, property, persons and procedure. Henderson, 1975 is another collection of various contracts in villages. Henderson, 1965, vol. I is a description with materials on characteristic conciliation by indigenous conflict institutions. Hall, 1979 and Hess & Murayama, 1980 present particular laws.

7 The Japanese term kazoku-seido (family system) has three different meanings: it refers firstly to a household or kinship in human society, secondly to the particular system practised throughout Japanese history, and thirdly to the patriarchal family system which was established under the Meiji Constitution.

8 For this reason, most of the authors who treat the general history of Japanese law start by describing Japan's reception of Western law (cf. Ishii, 1969). For a more concentrated discussion of the reception, see Takayanagi, 1963 and Noda, 1976. Henderson, 1965, vol. II and Minear, 1970 treated more limited topics.

9 The word roppo (literally six codes) is generally used to mean all the codes and laws of Japan. For the six codes – Constitution, Civil Code, Commercial Code, Code of Civil Procedure, Penal Code and Code of Criminal Procedure – were thought to include the important law at the period of codification. To be noticed first is that three other fields of law had developed elaborate systems which were not counted among them: the local system, military control and international relations. This was because the local system was thought to be settled not for the benefit of people, but for the benefit of sovereign control of Tenno; because military law was separated from governmental control on the ground that its nature was under the surpreme command of Tenno; and because international treaties were to be concluded only by the authority of Tenno. It is noticed that some fields of law which had occupied important official portions of the legal system in the Western models, were not given corresponding positions in the Japanese system at all, for instance, religious law such as Canon Law, community law in a borough, Gemeinde, or commune.

10 According to Takayanagi, such prominent scholars were found among those who had given direct advice to the Japanese draftsmen of the Constitution: Herbert Spencer, James Bryce, Albert Dicy of England; Rudolf von Gneist and Rudolf von Jhering of Germany; Lorenz von Stein of Austria; Le Bon of France; and James Bradly Thayer and Oliver Wendell Holmes, Jr. of the U.S.A. (1963: 7–9).

11 Later, when Japan acquired external territories: Taiwan after the war with China in 1894–95, South Sakhalin after the war with Russia in 1894–95, and the Peninsula of Korea by absorption in 1910, another power emerged.

12 The absolutism was in a sense not more than formal. The powers of Tenno were in actuality exercised by the highest officials in the name of Tenno; the Imperial Ordinances were issued according to the preference of the prime minister, sensitive to his own political interests; and the military laws were laid down by the leaders of the army and navy. This was a reason why Japanese politics before World War II was controlled by a limited circle of privileged political and military leaders.

13 For further details, see Passin, 1965: 149–160. The text of the Rescript is:

Know ye, Our subjects:

Our Imperial Ancestors have founded Our Empire on a basis broad and everlasting, and have deeply and firmly implanted virtue; Our subjects ever united in loyalty and filial piety have from generation to generation illustrated the beauty thereof. This is the glory of the fundamental character of Our Empire, and herein also lies the source of Our education. Ye, Our subjects, be filial to your parents, affectionate to your brothers and sisters; as husbands and wives be harmonious, as friends true; bear yourselves in modesty and moderation; extend your benevolence to all; pursue learning and cultivate arts, and thereby develop intellectual faculties and perfect moral powers; furthermore advance public good and promote common interests; always respect the Constitution and observe the laws; should emergency arise, offer yourselves courageously to the State; and thus guard and maintain the prosperity of Our Imperial Throne coeval with heaven and earth.

The Way here set forth is indeed the teaching bequeathed by Our Imperial Ancestors, to be observed alike by Their Descendants and the subjects, infallible for all ages and true in all places. It is Our wish to lay it to heart in all reverence, in common with you, Our subjects, that we may all attain to the same virtue.

14 Even the youngest primary-school children were required to memorize the Rescript to be able to recite it in unison, without understanding the meaning of it. As a result, the Japanese people who were educated by the system under the Meiji Constitution, could and still may recite the Rescript correctly with one voice. They enjoyed the same equal national identity when they recited it as when they sang the national anthem.

15 For further details of the debate on the Civil Code, see Mukai and Toshitani, 1967.

16 Many references are found relating to the family system. For a brief description of the system, see Toshitani, 1976: 36–39.

17 The movement for electoral expansion had been strong since the first election law. After a few revisions of the expansion, a “universal” suffrage was realized by the law of 1925, though still denying women the right to vote.

18 Cf. Noda, 1976: 61–62. This law aimed not only at oppressing labourers and their movements, but also at annihilating any thought or activity, however moderate, against kokutai, which was symbolized by the idea of the eternal Tenno, private ownership, and wa.

19 Main studies by the present author on jinja are collected in Chiba, 1970 in Japanese. Among references available in Western languages, see Bunce, 1955 for a general description; Hibino, 1928: 98–147, Coville, 1948, Holtom, 1963 for ideological aspects; Yanagida, 1957: 291–316, Harada, 1959, Nishitsunoi, 1959, Beardsley, 1965: 310–347, Hori, 1968, Kreiner, 1969, Morioka, 1975: 13–72 for socio-cultural aspects; Matsudaira, 1937 for a socio-political aspect; Fridell, 1973 for a legal aspect.

20 Of course, there developed wide variations. For instance, there are the jinja of a clan, dozoku (to be mentioned later) or family, on the one hand, and the jinja established and supported by political rulers such as Tenno, Shogun, or feudal lords, on the other. And the ideal or ideology of “all the inhabitants as ujiko” has been declining as society has been modernized and urbanized (cf. Morioka, 1975).

21 Still another sort of god was enshrined. They were those whose services were appreciated as most distinguished to the peace of the land and development of local economy. Examples were mainly found among leading warriors, pioneers and lords in feudal ages, and military personnel in the Meiji era and after.

22 For political dynamics in the process of occupation after the War, see Ike, 1957; Quigley and Turner, 1956; Maki, 1962; Burks, 1964. For the drafting of the present Constitution and related legal reform in general, see Takayanagi, 1963; Tanaka, 1976: 630–685; Oppler, 1976.

23 The demanded revision of the Civil Code, which was to be done at the same time as that of the Constitution, was not achieved as expected because of the laborious preparation needed. In reality, the revision was promulgated later on 9 December 1947, to come into force on 1 January 1948. A law was enacted for a temporary purpose to fill the vacant period from 3 May 1947, to 1 January 1948. It was the Law concerning Temporary Adjustment of the Civil Code Pursuant to the Enforcement of the Constitution of Japan, (cf. Steiner, 1977: 104–107)

24 Among many items in the Constitution which they want to re-revise, principal ones are the revival of some old systems under the Meiji Constitution, such as Tenno's legal and political power, a collective family system, and rearmament, which is forbidden in the present Constitution. Seen from this angle, they are grouped into conservative trends confusing indigeneity with conservativeness.

25 Promulgated and enforced in 1947 as an entire revision of the old one under the Meiji Constitution.

26 It is a later additional establishment in 1966. The date of 11 February is the same as of the former one, which was based on a myth ideologically supported by the absolutist Meiji regime. For this reason, the addition meant a success of a reactionary movement as well as an expression for national identity.

27 The first year of this system, based on an unproven myth, begins 660 years earlier than the first Christian year.

28 The recovery was of the same nature as the addition of National Foundation Day, supported by both humane affection and reactional tendency.

29 As private schools, including universities, are out of governmental control in this point, the problem arises concerning national and public universities which have a greater demand for foreign teachers than schools of lower grades.

30 Correctly speaking, Japanese homogeneity is no more than a myth in disregarding some existing minority groups, including Koreans.

31 Among the references to the buraku, Reischauer, 1977: 36 is the briefest description. The most detailed one may be De Vos and Wagatsuma, 1972. Readers are advised to be most prudent not to be included in the controversy today, when they want to know or say something about them. For the problem is now a political one as is seen by the special legislation in recent years to improve the status of the buraku.

32 A noted case took place in 1891 to test the Japanese reception of the principle of nullum crimen, nulla poena sine lege in relation to this punishment. It was the Otsu Case, where the Russian Crown Prince was injured by a policeman on a road in Otsu during his visit to Japan. Political pressure was so great that the heavier punishment clause of the Penal Code, which explicitly concerned Japanese Imperial Families alone, was to be applied to a foreign prince against the principle in order to mitigate possible Russian indignation. But without regard to political pressure, the then Supreme Court finally punished the accused policeman in accordance with the clauses applicable to the case of injury of ordinary citizens. The decision is highly evaluated as evidence of reception of such an important criminal principle, (cf. Tanaka, 1976: 626–627)

33 Among many references, see Watanabe, 1963: 365–366, 371 for a brief explanation, and Civiska, 1957 for a more detailed one.

34 Of course, some measures of redress for wives were created. For instance, restriction on the husband's unreasonable exercise of his right was possible by his honke (main family to branch families), shinzoku-kai (council of the relatives), any related person of higher status, or any other influential third party. The most notable was the enkiri-dera (a Buddhist temple for divorce). Several Buddhist temples in Japan, the most famous of which was Tokei-ji in Kamakura, were found to have functioned as refuges for wives who sought divorces. In such cases of appeal, the temples enjoyed social prerogatives to harbour the wives and to intervene in the case in favour of the wives. The law of enkiri-dera was without doubt a kind of equity in Japan. But it is still open to further discussion to determine whether it belonged to official or unofficial law.

35 Both the Civil Code and Japanese legal scholars had for a long time referred to the right of common only among farmers. After the war, two other kinds of the right of common were disclosed to have been functioning – among fishermen on fisheries and hotel owners on hot springs.

36 At the same time, urged by rapidly growing industry and commerce, important statutes were enacted to legalize blanket hypothecs on both movables and immovables, specifically applicable to factories, railroads, mines and some others in 1905 and after. Among them, the Mortgage Debenture Trust Law in 1905 may be noted for its purpose “to make possible the use of the same collateral as security for several different issues of bonds on an equal footing” (Michida, 1963: 527).

37 By the Act, the people are encouraged to calculate in full years, and the governments, national and local, are obligated to do so, although exceptionally they are permitted to use calendar years when necessary.

38 The administrative decision to approve the shakkan-ho in part was made in 1977. The legal form for the decision was arranged by an ordinance in 1978 and enforced a year later. However the ordinance does not specifically declare the adoption of shakkan-ho, but simply approves production and sale in divisions of 10/33 and 25/66 of a metre. In reality the former is equivalent to a shaku, a general length measurement, and the latter to a kujira-jaku, a measurement mainly for Japanese cloth.

39 Kawashima assumes that such Japanese attitudes aversive to legal treatment for a “premodern” nature will be sooner or later lost. But I find in them indigenous cultural traits of the Japanese people not to be attributed to the special character of a limited historical period. See Haley, 1978 for a criticism of the myth Kawashima holds.

40 The “acts” which Tenno performs with the advice and approval of the Cabinet are promulgation of law, convocation of the Diet, dissolution of the lower House, proclamation of general election, attestation of the appointment and dismissal of high officials, attestation of amnesty, awarding of honours, attestation of diplomatic documents, receiving foreign diplomats, and performance of ceremonial functions.

41 Tanaka, 1976: 735–737 describes two decisions of lower Courts on the case.

42 Sonoda, 1975 describes in English how much the traditional rights and duties of the privileged inhabitants are elaborately developed.

43 The town block association was originated in feudal Japan to create self-control of community affairs with a variety of names. During World War II, it was officially utilized by the government as the lowest level of means to a totalitarian mobilization. After the war, it was forbidden for the government to have any connection with it. But in reality, these practices are still alive. See Quigley and Turner, 1956: 55–56, 367–369 for explanation.

44 I myself had to be absent from the funeral ceremony of my father who had died unexpectedly, in order to perform the role of go-between at the wedding ceremony and party of a young couple on the same day, for my absence from the latter would have necessitated a postponement of the marriage. I had sent my wife to the funeral, held in a remote city, in my place to perform my duty to my father, but this obliged me to request a lady to sit with me at the wedding in place of my wife, for the go-between is required to be a couple.

45 The muko-yoshi that was discussed by Befu, 1962 was such a kind with the purpose of succeeding an occupation, important in business circles but of a special type. The nyufu (incoming husband) that was mentioned by Steiner, 1977: 112–113 was the husband married to a daughter who succeeded the family head due to the absence of a male heir, while muko-yoshi is the husband of a daughter who transferred her status of the heir to her husband.

46 I hold that the Confucian or feudalistic character of Japanese family is not the essence of Japanese culture throughout her history, but one of its variations. Cf. Note 39.

47 There was an extended variation of the noren relation, called zaibatsu (finance clique). The calling was given to a form of a cartel for its dozoku-like structure. The form was decentralized by the post-war legal reform because it had made a substantial contribution toward pre-war expansionist economy and politics, (cf. Burks, 1964: 45–48) But, some groups of big industries in contemporary Japan are said to be functioning, owing to the strong ties among the group members, as if zaibatsu groups.

48 Chugen means originally the fifteenth day of the seventh month of the year in lunar calendar, connected with the Bon festival, a Buddhist practice to worship one's ancestors who are believed to come back home once a year on this occasion.

49 The last case might be accounted as an on (a category of incurred obligations) relation, which is coupled with the giri relation (cf. Benedict, 1954; Lebra & Lebra, 1974). On is an unlimited obligation which cannot be exhaustively repaid, while giri is a limited one which can be reciprocally repaid.

50 According to Befu (1974: 212–217), the typical giri is observed in rural society between households, while its modern variations in urban society are found between individuals or between an individual and a collective party, and often with ulterior motives.

51 Remember that the farmers depended so largely upon the mutual help of co-members for farming in the village community without developed capitalistic division of labour that they would have made them give up farming and living in the community if help was entirely withheld.

52 Rakugo is a traditionally elaborated form of comic story of ordinary people in their traditional daily lives. Two types of persons frequently play an important role in its many stories. They are the “esteemed retired elder in the neighbourhood” and “owner of tenant long-houses” who give useful advice about all daily affairs, including suggestions concerning conflict management. Today, their role is largely replaced by seniors or superiors in profession, and the like. Sometimes, a resident policeman or teacher is asked to intervene in a private matter of conflict. A go-between is thought to be responsible for managing conflicts between the spouses whom he helped get married.

53 These days are very often observed as social holidays in local areas. Public offices may be disturbed in their routine work due to the absence of too many workers. Their heads are socially forced to excuse their absence.

54 For length, the standard shaku, about 0.303 metre, is used mainly by carpenters together with sun, one-tenth of a shaku, bu, one-hundredth of a shaku, and ken, six shaku. Ken is still the standard length for Japanese buildings as the long side of a tatami (room mat) as well as the breadth and height of the shoji (paper screen) and fusuma (sliding door). Shaku has a variation called kujira-jaku (whale-shaku) for Japanese cloth. For dimensions, a tsubo, a square ken, is the basic unit for buildings and land, for the latter of which a tan, 300 tsubo, and chobu, ten tan, are also applied. The units for weight are losing general usage as well as those for distance. In contrast, for capacity, a sho, about 1.8 litre, is frequently used together with go, one-tenth of a sho, to, ten sho, among others, for sake, and koku, one hundred sho, among others, for lumber.

55 Held on March 3rd to celebrate and pray for the happy growth of girls by displaying a traditional set of beautiful dolls.

56 Held on May 5th to celebrate and pray for the happy growth of boys by displaying brave dolls and raising carp streamers.

57 On November 15th, three-and five-years-old boys and three-and seven-years-old girls are brought in formal wear to their community shrines, or more recently to any famous shrines.

58 Be careful about the use of the word buraku, for it also refers to a group of alleged outcast people.

59 Fukutake, 1962, Cornell, 1962, Beardsley, 1962, Johnson, 1967, and the classical monographs of Embree, 1946 and Beardsley et al., 1957.

60 It is not found among Shinto shrines. The reason may be that while a Buddhist temple is connected with individual families, every Shinto shrine is connected with a local community as a whole.

61 Extended freedom enables the shuha to enjoy autonomy, on the one hand, and causes internal conflicts between temples or factions, on the other. This is seen by the social and political activities by a shuha of the Nichiren denomination in the names of Soka Gakkai and Komei-to, as well as critical strife in one of the biggest sects, Higashi-Honganji-ha of the Shin denomination, between the presiding priest, brother of the Empress, and administrative office.

62 See De Vos and Mizushima, 1967 and Iwai, 1974 for details.

63 Of course, the official state law is supported by its own legal postulates ranging from such general legal ideas as justice and equity, to such positive legal principles as public policy, nullum crimen, nulla poena, as in the Western countries from which Japanese law was received.

64 The differentiation is a relative one and some other types between may be identified in the future. But discussions here are made first of the two types.

65 Remember that such systems of official discrimination as court ranks and honours, limited suffrage, and privileged large land-owners had been legalized under the Meiji Constitution.

66 The idea of the amoeba-like way of thinking was first put forward in Chiba, 1975 and conceptualized in Chiba, 1982. It is used here for its usefulness for comparison, although I know that it is still to be further elaborated.

67 Furthermore, philosophical discussion should be added to reach a final conclusion. A general premise for the discussion is, as I am convinced, esteem for one's own culture, respect for the others’ culture, and efforts to create universal standards to facilitate peoples to understand, communicate, and co-operate with one another.

And I know that another basic problem in methodology is left yet to be discussed. For, there are two difficulties, frankly speaking, in asserting the existence and functioning of unofficial laws in Japan. First, those indigenous institutions appear to have lost their formal structure since the beginning of the so-called modernization process which started over a century ago, and in particular after its amazingly rapid development in industry in the last few decades. As a result of the modernization it has become difficult to identify each of the unofficial laws empirically. Second, my findings stated here were obtained through my own field research and from other scholars’ achievements, but most of the data obtained were collected before the rapid changes following the recent economic growth. Some might argue, relying on this fact, that Japanese indigenous unofficial laws have disappeared. Such an opinion may be true in a sense, but false in another sense. The change of unofficial laws cannot mean their total disappearance. On the contrary, we find many examples of traditional practices, however informal or disguised, with serious relevance to official law. In addition, their ideal factors appear to have become more conspicuous in many cases, in place of empirical formal factors, as arguments on Japanese attitudes toward law provide evidences of their existence and functioning so influential as to be embodied into unofficial laws.