Hastings Law Journal Volume 20 | Issue 1 Article 5 1-1968 The Legal System of Pre-Western Japan Harold G. Wren Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Harold G. Wren, The Legal System of Pre-Western Japan, 20 Hastings L.J. 217 (1968). Available at: https://repository.uchastings.edu/hastings_law_journal/vol20/iss1/5 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. The Legal System Of Pre-Western Japan By HARoWD G. WBBN* UNDERSTANDING the legal system of an Oriental culture re- quires a grasp of the differences between the philosophical frame of reference found in a country like Japan, and that which characterizes the West. Although the positive law of each may purport to be stated in a similar manner, the operational results of the Japanese legal sys- tem are quite different from what is found in a Western country. These differences arise because the basic norms of the Japanese sys- tem are a synthesis of the Buddhist religion, Confucian ethics, and indigenous Japanese cultural patterns. In recent years, there has been an introduction of Western norms, but as the process for assimilation is necessarily slow, the Oriental folkways remain far more important. I. Historical Background-Pre-1600 Prior to the fifth century, the tribal communities of Japan had been in constant intercourse with the kingdoms of Korea. Through the Koreans, the Japanese became aware of the advanced culture of China, and most significantly, of the Chinese written script. This acquaintance with written Chinese made it possible for the Japanese to absorb much of the Chinese culture, including Confucian ethics, the Buddhist religion, and the Chinese administrative system. With respect to the development of Japanese feudalism, familiarity with this last institution was to be the most important. Prior to this time, the Japanese had governed themselves through a clan and tribal type of government, although one of the clans was con- sidered to be the leader of all the rest. The chieftan of this clan held a position of superiority to the other chieftains and came to be thought of as "emperor." In 604 A.D., Prince Shotoku, who served as Regent for the Em- press Suiko, issued his Constitution In Seventeen Articles,' the first attempt at a codification of legal principles for the nation as a whole. These Articles were a set of moral injunctions addressed to all the *Professor of Law, Boston College Law School. 1 See CASE & CoM., July-Aug. 1953, at 20 (M Anesaki transl.), for an English translation of the CoNsTiruTioN. [2171 THE HASTINGS LAW JOURNAL [Vol. 20 clans, written in the style of the Chinese classics, and consisting of a codification of Confucian ethics. The central government's use of Chinese doctrines to gain con- trol over the entire country was not unlike the English kings' use of Norman law. The analogy is hinperfect in that the Japanese copied their Chinese model out of admiration for a more advanced neighbor- ing culture, while the Normans imposed their legal system upon the Saxons by conquest. But in both cases, two diverse cultures were blended to form new cultural patterns which are thought to be peculiarly "English" or "Japanese." This willingness to fuse elements of a borrowed culture with one's own to form a blend that is different from its component parts has always characterized Japanese history. In a later day, the Japanese were to incorporate additional cultural patterns from the West. It is easy, today, to differentiate what is "Western" from that which is Japanese, while the separation of that which was originally Chinese from that which is indigenous to Japan remains very difficult indeed.2 Japanese feudalism was a blend of the elaborate administrative system borrowed from the Chinese and the clan society indigenous to Japan. The positive law of feudal Japan was a blend of the codified law of China and the customary law of the Japanese tribes. Thus, the Code of 702 A.D. and the Yoro Code of 757 A.D. were based on Chinese models. These laws sought to maintain the system of land tenure, taxation, and administration which had been transplanted from China. Eventually, however, the Chinese importations broke down in a resurgence of the native tradition. Toward the end of the twelfth century, Japan suffered its War of the Roses, wherein the Minamoto clan gained supremacy over the Taira clan. The leader of the Mina- moto family, Yoritomo, established a stable military government based on feudalism, a pattern which characterized all later Japanese governments prior to Westernization. At the head of this feudal government was a military leader, or generalissimo, known as the Sh6gun. From 1185 to 1333, the Minamoto family, with its head- quarters at Kamakura, maintained hegemony over the other clans. During this period, the Japanese successfully repelled the Mongol invasion led by Kublai Khan. It was also at this time that the Japan- ese penchant for indirect rule reached its height; the Sh6gun, who ruled in the name of the Emperor, was in turn controlled by a regent. Ultimately, the regency rule was ended when the Ashikaga family gained control over the Shogunate. 2 E.g., Sung painting, landscape gardening, flower arrangement, and the tea ceremony are actually of Chinese origin, but have been so perfected in Japan that they are often thought of as being peculiarly Japanese. November 1968] LEGAL SYSTEM OF PRE-WESTERN'JAPAN 219 Under the Ashikaga sh~guns, the arts of Japan as well as trade made remarkable strides. Japanese maritime enterprises grew stead- ily and easily kept pace with similar developments in Europe. But from about 1500, almost continuous civil war kept the attention of the leaders of the country on matters at home. In the middle of the century, Japan had its first contacts with the West, and by the end of the century, the Jesuit missionaries, under the leadership of St. Fran- cis Xavier, had succeeded in converting over 300,000 Japanese to Christianity. At this point, the history of Japan took a turn which was to cause Japan's experience to be unlike that of any other nation. After a series of civil wars which brought forth some of the most interesting personalities in Japanese history, the Tokugawa family succeeded in gaining control over Japan in 1603 when Ieyasu was appointed Shu- gun. Fearful that the coming of the missionaries was a prelude to conquest by the Europeans, Ieyasu and his successors decided upon a policy of ruthless suppression of Christianity, expulsion of all for- eigners (with the exception of the Dutch and the Chinese who were confined to a small area in Nagasaki where limited foreign trade was permitted), and complete seclusion of the Japanese from the rest of the world. During this period, Japanese culture developed to a level analogous to that of the France of Louis XIV. For 250 years, Japan remained secluded from the rest of the world, but at complete peace. In addition to cultural and artistic advancements, 4 positive law went through a remarkable development during the Tokugawa period. After Westernization, much of this law was condemned as "feudal- istic," and Japanese legal .cholars turned their eyes from Tokugawa law to the newly imported Western models. But Tokugawa law was predominantly customary law, and was particularly suited to Japan; and despite the fact that it was "abolished" upon the introduction of Western codes, the living law which it reflected continues in modern Japan. Therefore, after a discussion of the other foundational com- 3 Among these, three stand above the rest: (1) Oda Nobunaga (1534-82),. who consolidated a strong position in the central provinces, and reigned as de facto ShSgun from 1568 until he was murdered; (2) Toyotomi Hideyoshi (1536-98), the "George Washington" of Japan, who united the country and promoted foreign trade, but expelled the missionaries and persecuted the Christian converts when he became fearful that Spain had designs on Japan; (3) Tokugawa Ieyasu (1542-1616), who defeated the hostile feudal lords, redistributed the fiefs, and established a stable feudal Japan. 4 The Western observer who visits Japan today is forever being charmed by elements of Japanese culture which were perfected during the Tokugawa period. Kabuki Theater (the unparalleled theater art of Japan), woodblock prints, lacquer ware, pottery, water colors, painting-all of these, and many more, reached their highest development at this time. THE HASTINGS LAW JOURNAL [Vol. 20 ponents of modern Japanese legal thought, the elements of Tokugawa jurisprudence will receive detailed consideration. II. Tokugawa Social Institutions A. Feudalism Like its counterpart in Europe, Japanese feudalism arose from the attempt by the culture to adjust itself to a situation of permanent precarium. Intermittent civil war had continued in Japan from the middle of the 12th century to the beginning of the 17th century. When the Tokugawas succeeded in eliminating their opposition, and the country settled down to a long period of peace; the nation was forced into an unchangeable hierarchical social structure. The class structure of Japan became ossified; hence, it was impossible to move from one class to another. At the top of the hierarchy was the warrior class (shi), con- sisting of the Shggun, the feudal lords (daimyo) and the knights (samurai). Below the military class were ranked the other three major segments of society-the farmers (no), the artisans (ko), and the merchants (sho).5 This "shi-no-ko-sho" system of Confucian eth- ics was particularly useful to the Tokugawas in forcing the society into a feudal mold.