THE NEW CIVIL CODE OF JAPAN.
Reading edition
BY TOKICHI MASAO, M. L., D. C. L.
Ever since the establishment of the present imperial government in 1868, the one unceasing aim of Japan’s foreign policy has been the abolition of the extra-territoriality régime, under which certain quasi-judicial functions are exercised on the Japanese soil by the ambassadors and consuls of the Occidental nations. This anxiety on Japan’s part to rid herself of this shameful régime imposed upon her against her will, will not appear surprising when the fact is learnt that one Occidental nation went so far as to call her consul at Yokohama, “Her Britannic Majesty’s the Most Honourable Court for Japan”—a name almost enough to imply that Japan was a British province. Extra-territoriality rests upon the assumption that the laws and procedure of the non-Christian nations are so unlike to and different from those of the Christian nations that without the protection of this system the safety and well-being of the subjects of the latter sojourning in the territory of the former would be placed in constant jeopardy. Accordingly in the early seventies Japan came to the conclusion that the only possible way of emancipating herself from the disgraceful yoke of extra-territoriality was to adopt one of the systems of law obtaining in the Christian world and compile a code of law based upon that system, and applicable alike to the Japanese and to the foreigners residing in Japan.
Thus, side by side there existed in Tokio two law schools in which two distinct systems of law were taught—the English and the French. The primary object of the Department of Justice in establishing the French law school being to make it a training school of judicial officers, the students of that school were, upon graduation, to render, for a limited number of years, an obligatory service to the government in the various capacities of judges, magistrates, and prosecuting attorneys. On the other hand, the University of Tokio being a strictly independent institution in which learning is pursued for the sake of learning, the graduates of the university or English law school were at entire liberty in their choice of professions. Naturally enough the majority of these did not wish to enter the same service which the graduates of the other school were obliged to enter as a matter of fulfilment of contract. Thus it happened that the bench was recruited from the French law school, while the bar was recruited from the English law school. This state of affairs lasted for about twenty years, during which time there was also established a German law school in the University of Tokio. Those who know something about the rivalry that existed in ancient times between the Sabinians and the Proculians, or even about the rivalry which exists to-day between the Yale method and the Harvard method, between the Waylandians and the Langdellians, can readily imagine what intellectual competition was carried on between these three Japanese law schools representing three distinct systems of law.
After twenty years of assiduous labor the Code Commission submitted a draft of a Civil Code to the two Houses of Parliament in 1890, accompanied by the recommendation from the Bureau of Legislation that the draft might receive the parliamentary sanction in such a manner that it might be possible for it to be put in effect by the year 1893. As might have been expected from the personnel of the Commission, consisting, in its conception, of Mr. Yeto Shimpei and the eminent French jurist Prof. Boissonade, etc., the draft was a genuine French code, being almost a literal translation of the Code Napoleon in all its parts excepting the part dealing with the Law of Persons. The question may well be asked why it took the Commission twenty long years to produce this imitation draft code when we know that the draft of the Code Napoleon itself was completed within the short period of four months. The answer seems to be that the Commission spent almost this entire time in their efforts to reconcile the principles of the French Law of Persons with the Japanese laws and customs bearing on that subject.
After four years of the most constant application the Commission submitted in 1896 a revisal of a part of the original draft. Had the Commission had the entire code revised they could not have shown greater wisdom. For the parts incomplete were those dealing with the Family Law and Successions, and the Commission remembered that these were the parts that occasioned the most vital objections to the old code. The Parliament referred the revised draft code to a Committee of their own, of which Mr. Hatoyama, the present Speaker, was made the chairman. After making a careful examination and some important modifications, Mr. Hatoyama reported favorably to its adoption. The Parliament acted according to his advice, and the draft became the law.
Such is the new Civil Code of Japan, adopted by the Imperial Parliament in its session of 1896. Truly, the year 1896 has been an eventful year for Japan. The war with China had brought glory to her arms. Formosa and numerous other islands had been added to her possessions. The insurgents of Formosa had been pacified. The treaties with the leading nations of the world had been revised, providing for the abolishment of the disgraceful extra-territoriality régime in Japan, to take effect, however, upon the taking effect of the new Civil Code. The last and greatest event of all, the new Code was adopted. With equal propriety, then, the Emperor Mutsuhito might have joined Justinian, in proclaiming:—“Imperatoriam Majestatem non solum armis decoratam, sed etiam legibus opportet esse armatam, ut utrumque tempus et bellorum et pacis recte possit gubernari!”