SECTION C-COMPARATIVE LAW [Hall 14, September 24, 3 p. m.] CHAIRMAN: HONORABLE JACOB M. DICKINSON, Chicago. THE NEW JAPANESE CIVIL CODE, AS MATERIAL FOR THE STUDY OF COMPARATIVE JURISPRUDENCE BY NOBUSHIGE HOZUMI [Nobushige Hozumi, Professor of Law, Imperial University, Tokio, Japan. b. July 11, 1855, Uwajima, Japan. Senior Middle Temple, London, scholarship in Common and Criminal Law, 1878-79; Barrister-at-Law, Middle Temple, England. Hogakuhakushi, LL.D. 1888; Dean of the Faculty of Law, University of Tokio, 1882-87, 1893-95; member of the House of Peers, 189092; drafting member of the Committee of Codification, 1893- Chairman of the Assembly of Doctors of Law, 1899- -; member Tokio Academy of Sciences. Author of Ancestor-Worship and Japanese Law (in English); Treatise on Codification; Treatise on Inkyo, or Retirement from House-headship; and On the Custom of Goringumi, or Five-men's Guilds (in Japanese); was one of the three joint authors of the Civil Code of Japan.] IN responding to the call of the Committee of the Congress to deliver a lecture on Comparative Law, I have, for reasons which will not be far to seek, taken the new Japanese Civil Code as the subject of my discourse. If, at the outset, I may be allowed to use a paradoxical expression in characterizing that law-book, I should say that "the East and the West, the Past and the Present, meet in the new Japanese Civil Code." I mean that the codification of private law in Japan was the result of the great political and social revolution which followed the opening of the country and the introduction of Western ideas; so that the Code embodies in itself both archaic and modern elements on the one hand, and Oriental and Occidental elements on the other. It is, so to speak, a connecting link between the Past and the Present, between the East and the West, and stands at the cross-roads of historical and comparative jurisprudence. It is, on that account, peculiarly interesting to scientific jurists, as supplying them with materials which few other systems can furnish. It will be my endeavor, in this lecture, to show the effect which the contact of the Western civilization with that of the East has produced on the civil law of the country, thereby illustrating some of the leading principles of the evolution of law by reference to the rules of the Code. The scope of my lecture being so wide, and the time for its delivery being limited, I shall confine myself to those characteristic features of the code which are not usually found in Occidental jurisprudence. I. Causes of the Codification In order to set forth the characteristics of the Japanese Civil Code, it will be useful, first of all, briefly to explain the causes which led to the codification and give a short sketch of the history of its compilation. The causes which led to the reform and codification of the civil law are principally two. The first is to be found in the great social and political changes which have taken place since the opening of the country to foreign intercourse, especially since the restoration of the Emperor to actual power in 1868. It was just half a century ago that Commodore Perry knocked at our doors to open the country to foreign trade. Aroused from the deep slumber of centuries, we rubbed our eyes, and saw Western civilization confronting us, but it was some time before we were wide awake, and realized the advantage of introducing it into our country. In a country which had remained entirely secluded for centuries from the rest of the world, it was quite natural that distrust, which in many cases grew to be hatred, of foreigners should at first have existed among the mass of the people; and that the cry of "jō-i,” or "the expulsion of foreigners," should have been raised among them. Many far-sighted statesmen and scholars, however, clearly saw the necessity of introducing Western civilization and of adopting whatever seemed conducive to the intellectual or material progress of the country, in order that Japan might become a member of the family of nations. There were others, who, while understanding very well the necessity of introducing Western civilization, joined the anti-foreign party, in order to hasten the overthrow of the Shogunate Government, for the expressions "Sonnō-jõi," or "Loyalty to the Emperor, and the expulsion of foreigners," although they had no necessary connection with one another, were at that time adopted as watchwords by the party of political reform, in order to set the mass of the people against the Shogun's Government. But as soon as their object was attained, and the present Emperor was restored to real power, they threw off the mask and kept only the former half of their watchword, "Sonnō," or "Loyalty to the Emperor." The first act of the Emperor, on ascending the throne, was to enunciate the fundamental principles of his government in the form of a solemn oath, which has since then been known as "the Five Articles of the Imperial Oath." The Emperor declared in this oath, (1) That deliberative assemblies should be established, and all measures of government should be decided by public opinion. (2) That all classes, high and low, should unite in vigorously carrying out the plan of the government. (3) Officials, civil and military, and all common people should, as far as possible, be allowed to fulfill their just desires, so that there might not be any discontent among them. (4) Uncivilized customs of former times should be broken through, and everything should be based upon the just and equitable principle of nature. (5) That knowledge should be sought for throughout the world, so that the welfare of the Empire might be promoted. This oath has been made the basis of our national policy. How well the Emperor kept his oath, and how unswervingly his government and his people have followed the wish expressed by their sovereign, is shown by the subsequent events of our history. The feudal system was abolished, and all the daimios or feudal lords voluntarily surrendered their fiefs to the Emperor, together with their powers to make laws, issue paper currency, and exercise both civil and criminal jurisdiction within their dominions. The four hereditary classes of the people, namely, the samurai or soldiers, farmers, artisans, and merchants, were abolished, and all could freely choose their own profession or calling. Officials were no longer appointed on account of birth, as was formerly the case, but on account of personal merits, and even the lowest born could aspire to become the highest official of the state. The family system was, as I shall show presently, gradually weakened, so that the individual began to take the place of the family as the unit of society. Schools for both sexes have been established in all parts of the empire, which are open to all classes without the least distinction. Higher education is no longer the monopoly. of the samurai and the clergy. Students and officials have been yearly sent to Europe and America, to study different branches of art and science, or to investigate and report upon the methods and resources of Western civilization. Christianity, which had been very strictly forbidden during the Tokugawa Shogunate, was gradually tolerated under the new government of the Emperor, until at last freedom of religious belief and worship was secured by article 28 of the constitution promulgated in 1889. The introduction of steamships, railroads, electric telegraphs, etc., completely changed the means of communication and traveling both on land and sea. The opening of foreign trade and the changes in commerce and industry at home, by the establishment of banking and other commercial firms and factories in different parts of the country, brought about great economical revolutions among the people. The Imperial Household abolished the old ceremonial costumes, and adopted European dress for ceremonial occasions both for men and women. The men cut off their topknots and had their hair dressed in Western fashion; they discarded their loose native dress and began to wear tight practical European dress; they now build their government offices, schools, and other public buildings in European style; they began to eat beef, the partaking of which had been regarded as something sacrilegious. It is needless to say that these political, economical, and social revolutions, which extended to every department of life, occasioned the necessity for corresponding reforms in the laws of the country, which could not be met by fragmentary legislation. Sweeping legislation by way of codification was the only way of keeping up with the rapid strides which Japan had taken during the past three decades. The second and more immediate cause of the codification of the civil law was the earnest desire on the part of the Japanese people to put an end to the existence of the extra-territorial jurisdiction which had been granted by earlier treaties to the sixteen Treaty Powers of Europe and America, and to resume the civil and criminal jurisdiction over the subjects and citizens of the Treaty Powers, residing or traveling in the country. At the time that we first entered into commercial treaties with Western Powers, it was quite natural and reasonable that they should demand the reservation to themselves of jurisdiction over their own respective subjects and citizens. This was indeed necessitated by the great difference between their own laws and institutions and those of Japan, while the habits and customs. of the people were also quite unlike. We saw the necessity and justice of acceding to their demand, but at the same time felt that the existence of such a legal anomaly was a disgrace to the country, and wholly incompatible with that scrupulous regard for the integrity of territorial sovereignty which ought to characterize the intercourse of independent friendly nations. So from an early date in the present reign, attempts were repeatedly made to revise the treaties and expunge from them the abominable extra-territorial clause. But every time we were met by the objection that our laws were incomplete. Although as a matter of principle, we did not admit the justice of the foreigners' objection to obeying the laws of the country to which they chose to resort, we were obliged, in fairness, to recognize the reasonableness of their objections. After many years of difficult diplomatic negotiations, it was at last agreed that the treaties should be revised and the extra-territoriality should be abolished; and, at the same time, the Japanese Government undertook to frame codes of laws and put them in operation before the new treaties should go into effect. The above-mentioned two causes, one internal and the other external, combined to make the work of codification one of the most urgent necessities of the time. As a preliminary step to the work of codification, a Bureau for the Investigation of Institutions was established in the third year of Meiji (1870), and one of the fruits of the labor of that bureau was the translation of the French Codes. This translation afforded the knowledge-thirsty Japanese ideas of Western laws for the first time, and had an immense influence upon subsequent legislation and judicial decisions in the courts of law. In 1875 a Committee for the Compilation of the Civil Code was appointed for the first time. In 1878 a draft was submitted by this committee to the Government. This draft was a close imitation of the French Civil Code, both in its arrangements and in its content and was not adopted by the Government. In 1880 Professor Boissonade, an eminent French jurist, who was then a legal adviser to the Japanese Government, was asked to prepare a new draft, and in the next year, a Bureau for the Codification of the Civil Law was established, to which Professor Boissonade's draft was submitted for deliberation. The bureau was abolished in 1886, and a Committee for the Investigation of Law was appointed, composed of the members of the Genrōin or the Senate and of the Bench, with Count Yamada, the Minister of Justice, at its head. This committee made its report in 1888, and the draft was submitted to the deliberation of the Senate, and was adopted by that Council. On the 27th of March, 1890, under Law no. 28, those parts of the Code which were drafted by Professor Boissonade, that is, book II, relating to "Property in General," book III, relating to the "Means of Acquiring Property," book IV, "Security of Rights in personam," and book v, relating to "Evidence," were published. Those parts which were prepared by Japanese jurists, namely, book 1, relating to "Persons," and part of book III, relating to "Succession," were published on the 16th of October of the same year, and the whole code was to go into operation from the 1st of January, 1893. Thus after the arduous toil of fifteen years, Japan possessed a code of private law for the first time in her history. It was quite natural that the Code should become a topic of earnest consideration for all educated classes of the people. Especially among lawyers and politicians, a violent controversy arose regarding the merits of the new code. Those jurists who had studied English law in the Tokio University or in England or America first raised their voices against the Code and demanded the postponement of the date of its going into operation, with a view to its complete revision. The French section of Japanese lawyers, on the other hand, supported the Code and insisted upon the necessity of its going into operation at the date originally appointed. The German section of jurists, whose number was at that time comparatively small, was divided into two parties, some siding with the one, and others joining the other. Japanese lawyers were thus divided into two hostile camps, and the lively |