THE NEW CIVIL CODE OF JAPAN.
BY TOKICHI MASAO, M. L., D. C. L.
Ever since the establishment of the present imperial government in 1868, the one unceasing aim of Japan’s foreign policy has been the abolition of the extra-territoriality régime, under which certain quasi-judicial functions are exercised on the Japanese soil by the ambassadors and consuls of the Occidental nations. This anxiety on Japan’s part to rid herself of this shameful régime imposed upon her against her will, will not appear surprising when the fact is learnt that one Occidental nation went so far as to call her consul at Yokohama, “Her Britannic Majesty’s the Most Honourable Court for Japan”—a name almost enough to imply that Japan was a British province. Extra-territoriality rests upon the assumption that the laws and procedure of the non-Christian nations are so unlike to and different from those of the Christian nations that without the protection of this system the safety and well-being of the subjects of the latter sojourning in the territory of the former would be placed in constant jeopardy. Accordingly in the early seventies Japan came to the conclusion that the only possible way of emancipating herself from the disgraceful yoke of extra-territoriality was to adopt one of the systems of law obtaining in the Christian world and compile a code of law based upon that system, and applicable alike to the Japanese and to the foreigners residing in Japan.
There were three such systems—the Anglo-American, the French, and the Germanic Roman—each offering itself for adoption. Mr. Yeto Shimpei,[2] who became the Minister of Justice in 1872, seems to have had a personal preference for the French system. He called to his assistance some of the most eminent jurists of France and entered upon the work of drafting a code. At the same time he established in Tokio a law school known as the “Department of Justice Annex Law School,” in which French law was taught by those same jurists whom he had called from France. About this time there was also established in the University of Tokio a law school in which instruction was given chiefly in English law. It was while teaching in this university law school that Mr. Henry T. Terry (a New York lawyer and an alumnus of Yale College) wrote his memorable book on English law, designed especially for the use of Japanese law students. From henceforth “Terry’s Leading Principles of Anglo-American Law” became as familiar to them as are “Blackstone’s Commentaries” to the law students of this country.
Thus, side by side there existed in Tokio two law schools in which two distinct systems of law were taught—the English and the French. The primary object of the Department of Justice in establishing the French law school being to make it a training school of judicial officers, the students of that school were, upon graduation, to render, for a limited number of years, an obligatory service to the government in the various capacities of judges, magistrates, and prosecuting attorneys. On the other hand, the University of Tokio being a strictly independent institution in which learning is pursued for the sake of learning, the graduates of the university or English law school were at entire liberty in their choice of professions. Naturally enough the majority of these did not wish to enter the same service which the graduates of the other school were obliged to enter as a matter of fulfilment of contract. Thus it happened that the bench was recruited from the French law school, while the bar was recruited from the English law school. This state of affairs lasted for about twenty years, during which time there was also established a German law school in the University of Tokio. Those who know something about the rivalry that existed in ancient times between the Sabinians and the Proculians, or even about the rivalry which exists to-day between the Yale method and the Harvard method, between the Waylandians and the Langdellians, can readily imagine what intellectual competition was carried on between these three Japanese law schools representing three distinct systems of law.
After twenty years of assiduous labor the Code Commission submitted a draft of a Civil Code to the two Houses of Parliament in 1890, accompanied by the recommendation from the Bureau of Legislation that the draft might receive the parliamentary sanction in such a manner that it might be possible for it to be put in effect by the year 1893. As might have been expected from the personnel of the Commission, consisting, in its conception, of Mr. Yeto Shimpei and the eminent French jurist Prof. Boissonade, etc., the draft was a genuine French code, being almost a literal translation of the Code Napoleon in all its parts excepting the part dealing with the Law of Persons. The question may well be asked why it took the Commission twenty long years to produce this imitation draft code when we know that the draft of the Code Napoleon itself was completed within the short period of four months. The answer seems to be that the Commission spent almost this entire time in their efforts to reconcile the principles of the French Law of Persons with the Japanese laws and customs bearing on that subject.
As has been the case with many other draft codes this draft Civil Code of Japan was destined to go into oblivion. As soon as it was submitted to the Parliament there ensued a most desperate fight against its adoption. As figuring most prominently among the champions of the opposition I may mention the names of Mr. Kazuo Hatoyama, the present Speaker of the House of Commons of the Imperial Japanese Parliament, and His Excellency Mr. Toru Hoshi, the present Japanese minister at Washington.[3] Inspired by these and other eminent jurists of the English school the entire bar was set against the adoption of the draft code. This was not a case of a bar accustomed to one set of rules and formulas opposing the adoption of a new code for fear that they might be compelled to learn a new set of rules and formulas. On the contrary, the bar was composed of men who had studied law as a science, and science for the sake of science. The spirit of their opposition was very plainly shown by the objections they raised against the code. They said:—“The draft Code was a blind imitation of a foreign Code which itself was far from being free from defects. It abounded in definitions, illustrations, and examples, and presented an appearance more becoming to a text-book of law than the Civil Code of a great nation. It went into too minute details and left too little room for voluntary development of jurisprudence. It incorporated, like the French Code, the law of evidence into the body of the Civil Code, which was totally at variance with the modern theory of evidence, being a failure on the part of the Commissioners to distinguish adjective from substantive law. It made too many innovations upon the Law of Persons hitherto obtaining in Japan. It changed the Family Law of the Japanese from the foundation, which was a gross disregard of the historical principle of jurisprudence,” etc., etc., etc. Such were some of the grounds upon which they opposed the adoption of the draft code, reminding one of the fight in Europe between the historical school and the analytical school, between the jurists of France and those of Germany; of the fight in Germany between the Code party and the anti-Code party, between Savigny and Thibaut. Who can say, then, that the Japanese are childish imitators of anything that looks well? The fact is that this sort of conflict between the more conservative and the more radical, the more scrupulous and the more unscrupulous, the more positive and the more speculative, is going on all the time.
At last in 1892 the Parliament passed an act deferring the taking effect of the code till 1897 and ordering in the meantime a careful revisal of the draft. A new Commission was appointed which consisted of three most eminent professors of law in Japan, each representing one of the three systems of law recognized there.[4] These Commissioners, aided by a number of efficient assistants, looked into the codes and laws of some fifteen leading American and European states. As representing the French system they consulted the codes of Louisiana, Belgium, France, Holland, Italy, Portugal, and Spain. As representing the German system they consulted the codes and laws of Austria, Montenegro, Prussia, Saxony, Switzerland, and the draft Civil Code of the German Empire. As representing the English system they consulted the leading American and English reports and treatises, the draft Civil Code of New York, and the codes of California and British India.[5]