Things Japanese/Law

by by Basil Hall Chamberlain

 

Law.^[1] Dutifully obedient to authority and not naturally litigious, the Japanese are nevertheless becoming a nation of lawyers. Few branches of study are more popular than law with the young men of the present generation. Besides being often a stepping-stone to office, it seems to have for them a sort of abstract and theoretical interest; for (and more's the pity) Japanese law has at no time been the genuine outcome of the national life, as English law, for instance, is the outcome of English national life, a historical development fitting itself to the needs of the nation as a well-made glove fits the hand. Twelve hundred years ago Japan borrowed Chinese law wholesale. She has borrowed French and German law (that is to say, practically, Roman law) wholesale in our own day. It is hard to see what else she could have done; for she would never have been admitted into the so-called comity of civilised nations unless equipped with a legal system commanding those nations approval, and those nations approve no legal system save such as they are accustomed to themselves. True, there was a party almost from the beginning which said: "Japan for the Japanese. Our laws must suit our people. They must not be mere handles for obtaining political recognition. Wait to codify until the national courts, interpreting national needs, shall have evolved precedents of their own. French and German codes are alien things, mechanically super imposed on our Japanese ways of thought and modes of life, which are not in touch with foreign civilisations and the laws that have sprung from them." But this national party lost the day. Possibly, in time to come, modifications dictated by national needs may creep in. It is noticeable that (perhaps as a result of the healthy reaction of the last sixteen or seventeen years) the Civil Code, the most recently published of all, does to a not inconsiderable extent take into account the existing fabric of Japanese society,—a fabric differing widely in many essential points from that of the West; for in Japan the family is the social unit, not, as with us, the individual.

The new codes resulting from the legislative activity of the pre sent reign are: (1) the Criminal Code and the Code of Criminal Procedure, drafted by Monsieur Boissonade de Fontarabie on the basis of the Code Napoleon, with modifications suggested by the old Japanese Criminal Law; these were published in 1880, and came into force in 1882; the Code of Criminal Procedure was, however, revised in 1890,^[2] in order that it might be uniform with the Code of Civil Procedure, according to the provisions of (2) the Law of the Organisation of Judicial Courts, promulgated in the month of February, 1890, and put into force on the 1st November of the same year"; (3) the Code of Civil Procedure which went into effect at once, and the Civil Code and the Commercial Code which were put into force in 1898. Though not actually entitled codes, we may also include: (4) the Constitution, with its attendant laws regarding the Imperial House, the Diet, and Finance; (5) the Laws for the Exercise of Local Self-Government; and (6) divers statutes on miscellaneous subjects.

Crimes, as classified in the Criminal Code, are of three kinds, namely: (1) crimes against the state or the Imperial Family, and in violation of the public credit, policy, peace, health, etc.; (2) crimes against persons and property; (3) police offences. There is furthermore a subdivision of (1) and (2) into major and minor crimes.

The punishments for major crimes are: (1) death by hanging; (2) deportation with or without hard labour, for life or for a term of years; (3) imprisonment with or without hard labour, for life or for a term of years. The punishments for minor crimes include confinement with or without hard labour, and fines. The punishments for police offences are detention for from one to ten days without hard labour, and fines varying from 5 sen to 2 yen. The court which tries persons accused of major crimes consists of three judges, that for minor crimes of one judge or three according to the gravity of the charge, and that for police offences of one juge de paix.^[3] An appeal is allowed in the case of both major and of minor crimes for a trial of facts. Capital punishments are carried out in the presence of a procurator. They are now extremely rare. Criminals condemned to deportation are generally sent to the island of Yezo, where they sometimes work in the mines. The ordinary prisons are situated in various parts of the empire, and number one hundred and thirty-two.

A person who has suffered injury from crime lodges his complaint at a police office or with the procurator of any court having jurisdiction over the crime in question. Policemen can arrest an offender whose crime was committed in their presence, or which the complainant avers to have actually seen committed. In all other cases they can arrest by warrant only. Bail is allowed at the discretion of the judge, but only after reference to the procurator who has taken up the case. Accused persons are often kept in prison for a considerable time before trial, and no lawyer is allow ed to be present at the preliminary examination, which also is often long delayed. The law promulgated in February, 1890, relative to the organisation of judicial courts, embodied the usage developed since the establishment of the courts in 1872, but it introduced at the same time certain changes borrowed rather from German than from French sources.

The history and nature of modern Japanese legal institutions are, very briefly, as follows. Down to 1872, the Judicial Department had united in itself the functions of chief law-court and chief executive office for the transaction of judicial business throughout the land, the same staff of officials serving for both purposes. In that year, however, a separation took place. Judges, procura tors, a judicial police for the arrest of prisoners, avoés, avocats, and notaries were established, as also separate judicial courts and a law school. The pattern copied was French. Since that time numerous changes have taken place. At present the courts are divided into local courts (presided over by juges de paix), district or provincial courts, courts of appeal, and a supreme court (cour de cassation), all of which have jurisdiction both in criminal and civil suits. Each of these courts has branch offices established to accommodate suitors, regard being had to population and to the area of jurisdiction. The local courts have jurisdiction over police offences and such minor crimes as the procurators may deem it proper to punish with a lighter kind of punishment ad judged by one of those courts; the district courts have jurisdiction over crimes, besides acting as courts of preliminary investigation; the appeal courts hear new trials; the supreme court hears criminal appeals on matters of law. Crimes of whatever sort, except police offences, are as a rule subjected to preliminary examination before actual trial. When, however, the charge is perfectly clear of doubt, the procurators ask for an immediate trial in the case of minor crimes. The conducting of criminal cases, from the very beginning down to the execution of the criminal, if he be condemned to suffer death, rests with the procurator, who unites in his own person the functions of public prosecutor and of grand jury.

The present judiciary consists almost entirely of graduates of the Law College of the Imperial University and of the private law colleges, of which there are six in Tōkyō and eight altogether in the empire. About a thousand young men graduate yearly. Lawyers are bound to pass a certain examination before being admitted to practise at the bar; but it is of a very theoretical nature. The new law concerning the constitution of courts requires candidates for judgeships to pass two competitive examinations, unless they are graduates of the University, in which case they need only pass the second of the two, after having served as probationary judges for a term of three years. Judges are appointed for life; but the salaries paid are so miserably poor (from 600 to 4,000 yen, or £60 to £400 per annum!) that many of the ablest judges soon resign in order to become practising barristers, the bench thus, as has been sarcastically remarked, serving merely as a half-way house to the practise of the law. Things have indeed come to such a pass that in the spring of 1901 a number of the judges and public procurators actually went out on strike! The presidents of courts are, however, more highly remunerated. The president of the supreme court receives 5,500 yen (£550), and is of shinnin rank.^[4] The chief procurator receives 5,000 yen (£500) and is of chokunin rank.

The system of trial, as well in civil as in criminal cases, is inquisitorial. It was so in Old Japan, and is so in France, whence the greater part of modern Japanese law has been derived. Formerly no convictions were made except on confession by the prisoner. Hence an abundant use of torture, now happily abolished,^[5] and a tendency, even in civil cases, to find against the defendant, although the theory is that the defendant must be presumed to be in the right until actually proved the contrary. In this characteristic, Japan does but conform to her Continental models, and indeed to the universal usage of mankind with the solitary exception of the English. The judge conducts the trial alone. All questions by counsel must be put through him. Counsel do not so much defend their clients as represent them. Their statements or admissions stand for those of their clients, strange as such a thing will sound to English ears. Another peculiarity—at least according to English notions, though we believe that something similar exists in France is that husband and wife, parent and child, master and servant, cannot witness against each other. At the same time, they are not entirely excluded from the examination. The Code of Criminal Procedure draws a fine distinction, excluding them as witnesses, but admitting them as "referees,"—we can think of no better equivalent for the difficult Japanese term sankōnin (參考人). A "referee" is a witness and yet not an authoritative witness, a quasi-witness, if one might so phrase it, who is not called upon to be sworn. The idea is, of course, that persons thus related are likely to be prejudiced in each other's favour, and that their testimony should accordingly be allowed little weight in comparison with that of others more probably impartial. Witnesses are sworn, though not exactly in the European manner. The oath is rather a solemn asseveration, and is entirely unconnected with any religious sanctions. It is in the form of a written document, to which the person sworn affixes his seal, or, failing that, his signature. The proceedings at a trial are all committed to writing, but not always in the actual words used, as Japanese custom is averse to the employment of the colloquial for literary purposes. The general plan is, therefore, to translate the gist of the questions and answers into the book style.

Needless to say that the above is the merest shadowy outline of a vast subject. Transformed, revolutionised as it has been, Japanese law nevertheless retains not a few curious features of its own, which would interest both the legal specialist and the student of history and sociology. In some cases of comparatively little importance, the customary law of an earlier date is still followed, though variously modified by the application, more or less tentative, of European principles of jurisprudence.

Books recommended. J. H. Gubbins's English translation of the Civil Code, with the Japanese original on the same page.—J. E. de Becker's English translations of the Codes of Civil and Criminal Procedure.—The official versions in English of the Commercial Code, the Penal Code, and the Code of Civil Procedure, and in French of the Code of Criminal Procedure. Pamphlets in English by Dr. Lönholm on the Civil and Commercial Codes.—For an account of the earlier or traditional law, may be recommended Professor J. H. Wigmore's voluminous treatise on Private Law in Old Japan, printed in Vol. XX. of the "Asiatic Transactions," and Notes on Land Tenure and Local Institutions in Old Japan, by D. B. Simmons and J. H. Wigmore, in Vol. XIX. Part I. of the same. To these may be added R. Masujima's paper On the Jitsuin or Japanese Legal Seal, printed in Vol. XVII. Part II. of the "Asiatic Transactions," and Gubbins's Report on Taxation in Japan with a Supplementary Paper on Land Tenure.

1. Ignorant as we are of law, this article must be considered as proceeding from our informant, Mr. Masujima. All that we have done has been to put into shape and abridge the information which he kindly supplied.
2. In 1901, a radical revision of the Criminal Code was proposed. But such opposition was raised by members of the legal profession that the bill had to be put off to the next session of the Diet, when a further bill for the revision of the Code of Criminal Procedure is expected to be submitted.
3. The system being French, it seems advisable to retain the French terms in cases where there is no exact, or no generally current, English equivalent.
4. All officials are classified into four ranks, shinnin, chikunin, sōnin, and hannin. The shinnin are the highest of all, receiving their nomination from the Emperor himself.
5. See page 182, footnote.