Law of Japan - Historical Developments

Historical Developments

Pre-Modern History

The early law of Japan is believed to be heavily influenced by Chinese law. Little is known about Japanese law prior to the seventh century, when the Ritsuryō was developed and codified. Before Chinese characters were adopted and adapted by the Japanese, the Japanese had no known writing system with which to record their history. Chinese characters were known to the Japanese in earlier centuries, but the process of assimilation of these characters into their indigenous language system took place in the third century. This was due to the willingness of the Japanese to borrow aspects of the culture of continental civilisations, which was achieved mainly via adjacent countries such as the Korean kingdoms rather than directly from the Chinese mainland empires.

Two of the most significant systems of human philosophy and religion, Confucianism (China) and Buddhism (India), were officially transplanted in 284–5 and 522 AD respectively, and became deeply acculturated into indigenous Japanese thought and ethics. David and Zweigert and Kotz argue that the old Chinese doctrines of Confucius, which emphasize social/group/community harmony rather than individual interests, have been very influential in the Japanese society, with the consequence that individuals tend to avoid litigation in favour of compromise and conciliation. In addition, it is presently believed that various arts and techniques in many fields of production, such as agriculture, weaving, pottery, building construction, medicine and tanning, were brought to Japan by immigrants from the Korean peninsula. These immigrants, wherever they came from, had significant influence on the development of Japan.

It is theorized by some that the flow of immigrants was accelerated by both internal and external circumstances. The external factors were the continuing political instability and turmoil in Korea, as well as the struggle for central hegemony amongst the Chinese dynasties, kingdoms, warlords, invasions and other quarrels. These disturbances produced a large number of refugees who were exiled or forced to escape from their homelands. Immigrants to Japan may have included privileged classes, such as experienced officials and excellent technicians who were hired in the Japanese court, and were included in the official rank system which had been introduced by the immigrants themselves. It is conceivable - but unknown - that other legal institutions were also introduced, although partially rather than systematically, and this was probably the first transplantation of foreign law to Japan.

During these periods, Japanese law was unwritten and immature, and thus was far from comprising any official legal system. Nonetheless, Japanese society could not have functioned without some sort of law, however unofficial. Glimpses of the law regulating people's social lives may be guessed at by considering the few contemporary general descriptions in Chinese historical books. The most noted of these is The Record on the Men of Wa, which was found in the Wei History, describing the Japanese state called Yamatai (or Yamato) ruled by the Queen Himiko in the second and third centuries. According to this account, Japanese indigenous law was based on the clan system, with each clan forming a collective unit of Japanese society. A clan comprised extended families and was controlled by its chief, who protected the rights of the members and enforced their duties with occasional punishments for crimes. The law of the court organised the clan chiefs into an effective power structure, in order to control the whole of society through the clan system. The form of these laws is not clearly known, but they may be characterised as indigenous and unofficial, as official power can rarely be identified.

In this period, a more powerful polity and a more developed legal system than the unofficial clan law of the struggling clan chiefs was required effectively to govern the society as a whole. Yamatai must have been the first central government which succeeded in securing the required power through the leadership of Queen Himiko, who was reputed to be a shaman. This leads to the assertion that Yamatai had its own primitive system of law, perhaps court law, which enabled it to maintain government over competing clan laws. As a result, the whole legal system formed a primitive legal pluralism of court law and clan law. It can also be asserted that this whole legal system was ideologically founded on the indigenous postulate which adhered to the shamanistic religio-political belief in polytheistic gods and which was called kami and later developed into Shintoism.Masaji Chiba, "Japan" Poh-Ling Tan, (ed), Asian Legal Systems, Butterworths, London, 1997 at 91.

Two qualifications can be added to these assertions. First, some Korean law must have been transplanted, albeit unsystematically; this can be seen by the rank system in court law and the local customs among settled immigrants. Second, official law was not clearly distinguished from unofficial law; this was due to the lack of written formalities, although court law was gradually emerging into a formal state law as far as central government was concerned. For these reasons, it cannot be denied that a primitive legal pluralism had developed based on court and clan law, partially with Korean law and overwhelmingly with indigenous law. These traits of legal pluralism, however primitive, were the prototype of the Japanese legal system which developed in later periods into more organised legal pluralisms.

Modern Developments and Japanese Law Today

The early modernization of the Japanese law was primarily based on continental European legal systems and lesser Anglo-American elements. At the beginning of the Meiji Era, European legal systems—especially the civil law of Germany and France—were the primary models for the Japanese judicial and legal systems.

After the Second World War, the Japanese legal system underwent major reform under the guidance and direction of Occupation authorities. American law was the strongest influence, at times replacing and at times overlaid onto existing rules and structures. The Constitution, criminal procedure law, and labor law, all crucial for the protection of human rights, and corporate law were substantially revised.

Therefore, the Japanese legal system today is essentially a hybrid of continental and Anglo-American legal structures, with strong underlying "flavors" from indigenous Japanese and Chinese characteristics. While historical aspects remain active in the present, Japanese law also represents a dynamic system that has undergone major reforms and changes in the past two decades as well.