THE

AMERICAN LAW REVIEW.

MARCH-APRIL, 1903.

THE PRESENT POSITION OF JAPANESE LAW AND JURISPRUDENCE.1

Japan has during the last forty years risen from comparative insignificance to the rank of a great power, and has attracted to herself the attention of the civilized world. When your attention is thus directed to her it is natural for you to ask, what is her civilization? What are her laws and judicature like? Are they really worthy of the high place which Japan has assumed in the comity of nations?

It is to questions like these that I shall endeavor to give a reply. I am conscious that law, the reign of law, is or should be the goal of modern progress. I know that the civilization. of a nation is best tested by the state of her laws and judiciary. And though I know that there are and must be many deficiencies in our Japanese system of jurisprudence, yet I feel that some account of it will prove of interest to my audience, and enable me in some degree to repay the honor and kindness you have done in inviting me to address you to-night.

In order to estimate correctly the position of legal institutions in a given society, many questions should be asked. Such questions are: To what stage does the law of that society belong? What are the sources of the law?

1 An address delivered by Dr. RoKUICHIRO MASUJIMA, of Tokio, Japan, before the New York State Bar AssoVOL. XXXVII.

What the process of its im

ciation at Albany, on January 20, 1903. Revised for publication in the AMERICAN LAW REVIEW.

11

provement? What the machinery for the revision of codes if they exist? How is its legislative work conducted? What are the recognized conceptions and principles of the law? How is the law administered? What is the system of judicature? What the system of procedure followed in court? The rules of pleading, of trial, of evidence? The mode of executing judgment? What is the legal process for the protection of rights? What is the system of appeals or new trials? Of conveyancing? Of legal education? Of legal education? How are lawyers called to the bar? How are judges appointed? How far are the knowledge and importance of law appreciated by the authorities and the people? How far is the judicial machinery sought after as a means to establish one's right? What are the life, habits and characteristics of the people among whom such a system of law is administered? All those questions must be considered in order to arrive at a correct estimate of any system of law and jurisprudence, for law grows and increases to meet the constant but ever changing needs of the people to whom it belongs. The usages and customs of the past affect the interpretation and administration of the laws, the course and character of legal education and the growth of the national jurisprudence. Laws are, like other phenomena, a natural growth, out of the circumstances of the people to whom their activity contributes. The people themselves as well as the bench, the bar and the faculty of the law school contribute to this result invisibly, but constantly. The difference in the manner and validity of the growths of different national laws and jurisprudence is the index of the difference displayed in the energy and vitality of a given society in relation to the actual circumstances surrounding it. In the small space of time before us, some of these questions only can be treated.

Japan possesses an excellent code of laws, while you are still under the sway of case law. Yet, if we contrast the fact of her possession of a code with the present knowledge of law and jurisprudence among her people, we shall find a great anomaly in the field of historical jurisprudence. Whereas, in other countries, codification has come after centuries of legal growth, in Japan it has been formulated rather as an introduction to an era

of progress. The history of Japanese jurisprudence has thus been disturbed in its natural normal development, and it cannot boast of an unbroken course of progress and improvement such as may be claimed for Anglo-American jurisprudence. The modern Japanese code is not the spontaneous product of jural evolution and the matured result of centuries, but a system of modern jurisprudence with laws and codes representing the most advanced conceptions; and, except to a very slight degree, it has no claim whatever to ancient descent, attributable either to an antique code or to immemorial unwritten traditions such as are ascribed as the origin of your law and jurisprudence. The cause of this disturbance in the historical continuity of Japanese law was the opening of the country to foreign intercourse, and the consequent demand on the part of the Japanese people for laws suitable to their new position to enter for competition in the arena of the world's commerce. Therefore, to decide the question of the state of Japanese progress, we must first inquire into the state of the law which the codes have supplanted, and then into the actual working of the codes since the time when they first were put into operation.

It must have been observed by more than one student interested in the truth of history that one of the most significant points which strikes us in our investigation into the growth of Japanese law and jurisprudence is the abruptness with which Japan has changed from the old to the new.

If we read the records and stories with which the medieval history of Japan abounds, we shall see that custom, tradition, and common sense were really the main principles underlying the decisions arrived at by the magistrates. There was no system of law, and inflexible rules of justice as in modern law and judicature. The judge was an arbitrator between man and man rather than a legal officer of the crown administering the laws of the realm.

There was, however, even in feudal days, a systematized attempt at criminal law. You, who for the most part are versed in the law, will readily understand how it was that in those more primitive years which we call the feudal days, more stress was laid upon criminal law than upon any other branch of