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The Cultural Property Laws of Japan: Social, Political, and Legal Influences

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The Cultural Property Laws of Japan: Social, Political, and Legal Influences Washington International Law Journal Volume 12 Number 2 3-1-2003 The Cultural Property Laws of Japan: Social, Political, and Legal Influences Geoffrey R. Scott Follow this and additional works at: https://digitalcommons.law.uw.edu/wilj Part of the Comparative and Foreign Law Commons, and the Cultural Heritage Law Commons Recommended Citation Geoffrey R. Scott, The Cultural Property Laws of Japan: Social, Political, and Legal Influences, 12 Pac. Rim L & Pol'y J. 315 (2003). Available at: https://digitalcommons.law.uw.edu/wilj/vol12/iss2/3 This Article is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington International Law Journal by an authorized editor of UW Law Digital Commons. For more information, please contact [email protected]. Copyright 0 2003 Pacific Rim Law & Policy Journal Association THE CULTURAL PROPERTY LAWS OF JAPAN: SOCIAL, POLITICAL, AND LEGAL INFLUENCES Geoffrey R. Scott t Abstract: Japan's Law for the Protection of Cultural Properties has been heralded as one of the most sophisticated and complete statutes of its kind and has been viewed as a model for other countries considering means to protect their ethnographic and cultural treasures. This Article examines the social, cultural, political, and legal influences antecedent to the promulgation of the statute and discusses the complexities inherent in composing legislation of this sort. The specific Japanese legislative and administrative efforts undertaken to protect national treasures prior to promulgation of the statute, and the political environment contemporaneous with its passage, are compiled, analyzed, and provided to the western audience. Perhaps of greater significance, however, the influence of the West, and particularly the United States and its citizens, upon the Japanese efforts to protect cultural property is examined through the use of archival U.S. Government documents of the Arts and Monuments Division of the Supreme Commander Allied Powers composed during the occupation of Japan. Finally, from a pragmatic perspective, this Article analyzes and explains the legal reasons why it is currently difficult for Japan to join in the international efforts of the United Nations Educational Scientific and Cultural Organization ("UNESCO") and International Institute for the Unification of Private Laws ("UNIDROIT") in the global protection of cultural treasures, the strong domestic protection of such properties notwithstanding. I. IN TR OD U CT ION .............................................................................................................................. 3 16 II. THE CULTURAL, POLITICAL, AND SOCIAL MILIEU OF JAPAN THROUGH 1945 AND ITS EFFECT UPON THE PROTECTION OF CULTURAL PROPERTY-A MOVE FROM INSULARITY TOWARD W ESTERNIZATION AND NATIONALISM ........................................................................................... 319 A. The Early Threat to Power and Autonomy and Japan's Chosen Response of Insularity.............. 319 B . The D oor B egins to Open .............................................................................................................. 323 C . Th e Me ii P eriod ........................................................................................................................... 3 2 7 1. The Effect on the Legal Tradition ........................................................................................ 327 2. The Revolution of Westernization in Art and Culture .......................................................... 331 a. The D ecline of Indigenous A rt .................................................................................. 331 b. The R ise of Western Infl uence................................................................................... 334 D. A Growing Trend of Nationalism and The Leadership ofFenollosa and Okakura ...................... 335 1. Fenollosa Enters Upon the Scene ........................................... 335 2. Okakura F ollows .................................................................................................................. 338 3. Fenollosa and Okakura Collaborate................................................................................... 340 4. The Movement After Fenollosa and Okakura ...................................................................... 344 Ill. LEGISLATIVE ANTECEDENTS TO JAPAN'S LAW FOR THE PROTECTION OF CULTURAL PROPERTY ..346 Professor of Law, The Dickinson School of Law of the Pennsylvania State University. The author would like to express his appreciation to Sawaka Nagano, Esquire, Tokyo, Japan and Christine Guth, Art Historian, University of Pennsylvania for their assistance during the early stages of this project. The author also thanks Karen E. Maull, Esquire, Philadelphia for her insight and support. Finally, the author would like to acknowledge all the legal historians-referenced or not-who have contributed to the understanding of this topic. He is truly indebted to all those professional historians who preceded him and who have pioneered the historical factual research. PACIFIC RIM LAW & POLICY JOURNAL VOL. 12 No. 2 IV. THE PERIOD OF OCCUPATION-ITS INFLUENCE ON THE CULTURAL PROPERTY PROTECTION A C T O F 1950 .................................................................................................................................. 352 A. The A &M Branch and Its Personnel ......................................................................................... 354 B. The Medium ofInfluence ofSCAP and A&M ........................................................................... 358 C. The Business ofArts and M onum ents .......................................................................................... 363 D. The Factors Calling for a New Japanese Commitment to Protect Cultural Property .................. 364 I. Taxation, Black-Market Sale and Other Transfer and Exportation Issues .......................... 365 a. The Property and Sales Taxes ................................................................................ 365 b . Th e Estate Tax ................................................................................................................ 369 c. Sale to Purchase Necessities .......................................................................................... 369 d. Theft and Vandalism ....................................................................................................... 3 70 e. Vagrancy and F ire .......................................................................................................... 3 72 f Use by A llies ................................................................................................................... 3 74 g. The Attitudes of the Population and Government to Art and Cultural Property ............ 375 V. THE 1950 LAW FOR THE PROTECTION OF CULTURAL PROPERTIES AND SPECIFIC ACTIVITIES OF THE ARTS AND MONUMENTS BRANCH OF SCAP ...................................................................... 379 V I. C ON C LUSIO N ................................................................................................................................. 387 APPENDIX I: COMPILATION OF VARIOUS CULTURAL PROPERTY PROTECTION LA W S O F JAPA N ........................................................................................................................ 389 I. G ENERAL GOVERNM ENTAL LAW S ................................................................................................. 389 II. LAWS REGARDING PRESERVATION OF NATURAL TREASURES ....................................................... 389 III. LAWS REGARDING PRESERVATION OF REGISTERED IMPORTANT ART OBJECTS ............................ 390 IV. LAWS REGARDING PRESERVATION OF HISTORIC SITES, SCENIC SPOTS AND NATURAL HISTORY P R ESER V ES ....................................................................................................................................39 0 V. MISCELLANEOUS LAWS REFERRING TO PRESERVATION ................................................................ 392 APPENDIX II: LAW FOR PRESERVATION OF HISTORIC SITES, SCENIC SPOTS AND NATURAL HISTORY PRESERVES, LAW NO. 44 (1919) ............................................. 394 APPENDIX III: THE NATIONAL TREASURES PRESERVATION LAW OF 1929 ........................... 396 APPENDIX IV: LAW FOR PRESERVATION OF IMPORTANT ART OBJECTS, LA W N O . 43 (1933) ............................................................................................................ 401 I. INTRODUCTION Japan's Law for the Protection of Cultural Properties has often been heralded as one of the most sophisticated and complete attempts of its kind. Initially promulgated on May 30, 1950, it became effective on August 29, 1950.' Although amended in limited part, it retains its original and essential Bunkazai Hogo-hO [Law For The Protection of Cultural Properties], Cultural Affairs Protection Department, Agency for Cultural Affairs, (1950) (Japan) (most recent English translation published Oct. 1996). For a brief overview of the Law, see also BARBARA E. THORNBURY, THE FOLK PERFORMING ARTS: TRADITIONAL CULTURE IN CONTEMPORARY JAPAN 55 (1997), which provides: Since the passage of the Cultural Properties Protection Law (Bunkazai Hogo-h6) in 1950, the word "cultural property" (bunkazai) has come to be frequently encountered in a range of places and circumstances: at historical sites, in museums, in the pages of programs MARCH
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