Law of Japan
The law of Japan refers to the legal system in Japan, which is primarily based on legal codes and statutes, with precedents also playing an important role. Japan has a civil law legal system with six legal codes, which were greatly influenced by Germany, to a lesser extent by France, and also adapted to Japanese circumstances. The Japanese Constitution enacted after World War II is the supreme law in Japan. An independent judiciary has the power to review laws and government acts for constitutionality.
Historical developments
Early Japan
The early laws of Japan are believed to have been heavily influenced by Chinese law. Little is known about Japanese law prior to the seventh century, when the Ritsuryō was developed and codified. Before Chinese characters were adopted and adapted by the Japanese, the Japanese had no known writing system with which to record their history. Chinese characters were known to the Japanese in earlier centuries, but the process of assimilation of these characters into their indigenous language system took place in the third century. This was due to the willingness of the Japanese to borrow aspects of the culture of continental civilisations, which was achieved mainly via adjacent countries such as the Korean kingdoms rather than directly from the Chinese mainland empires.Two of the most significant systems of human philosophy and religion, Confucianism and Buddhism, were officially transplanted in 284–285 and 522 AD respectively, and became deeply acculturated into indigenous Japanese thought and ethics. David and Zweigert and Kotz argue that the old Chinese doctrines of Confucius, which emphasize social/group/community harmony rather than individual interests, have been very influential in the Japanese society, with the consequence that individuals tend to avoid litigation in favour of compromise and conciliation.
It is theorized by some that the flow of immigrants was accelerated by both internal and external circumstances. The external factors were the continuing political instability and turmoil in Korea, as well as the struggle for central hegemony amongst the Chinese dynasties, kingdoms, warlords, invasions and other quarrels. These disturbances produced a large number of refugees who were exiled or forced to escape from their homelands. Immigrants to Japan may have included privileged classes, such as experienced officials and excellent technicians who were hired in the Japanese court, and were included in the official rank system which had been introduced by the immigrants themselves. It is conceivable – but unknown – that other legal institutions were also introduced, although partially rather than systematically, and this was probably the first transplantation of foreign law to Japan.
During these periods, Japanese law was unwritten and immature, and thus was far from comprising any official legal system. Nonetheless, Japanese society could not have functioned without some sort of law, however unofficial. Glimpses of the law regulating people's social lives may be guessed at by considering the few contemporary general descriptions in Chinese historical books. The most noted of these is The Record on the Men of Wa, which was found in the Wei History, describing the Japanese state called Yamatai ruled by the Queen Himiko in the second and third centuries. According to this account, Japanese indigenous law was based on the clan system, with each clan forming a collective unit of Japanese society. A clan comprised extended families and was controlled by its chief, who protected the rights of the members and enforced their duties with occasional punishments for crimes. The law of the court organised the clan chiefs into an effective power structure, in order to control the whole of society through the clan system. The form of these laws is not clearly known, but they may be characterised as indigenous and unofficial, as official power can rarely be identified.
In this period, a more powerful polity and a more developed legal system than the unofficial clan law of the struggling clan chiefs was required effectively to govern the society as a whole. Yamatai must have been the first central government which succeeded in securing the required power through the leadership of Queen Himiko, who was reputed to be a shaman. This leads to the assertion that Yamatai had its own primitive system of law, perhaps court law, which enabled it to maintain government over competing clan laws. As a result, the whole legal system formed a primitive legal pluralism of court law and clan law. It can also be asserted that this whole legal system was ideologically founded on the indigenous postulate which adhered to the shamanistic religio-political belief in polytheistic gods and which was called kami and later developed into Shintoism.
Two qualifications can be added to these assertions. First, some Korean law must have been transplanted, albeit unsystematically; this can be seen by the rank system in court law and the local customs among settled immigrants. Second, official law was not clearly distinguished from unofficial law; this was due to the lack of written formalities, although court law was gradually emerging into a formal state law as far as central government was concerned. For these reasons, it cannot be denied that a primitive legal pluralism had developed based on court and clan law, partially with Korean law and overwhelmingly with indigenous law. These traits of legal pluralism, however primitive, were the prototype of the Japanese legal system which developed in later periods into more organised legal pluralisms.
Ritsuryō system
In 604, Prince Shotoku established the Seventeenth-article Constitution, which differed from modern constitutions in that it was also moral code for the bureaucracy and aristocracy. While it was influenced by Buddhism, it also showed a desire to establish a political system centered on the emperor, with the help of a coalition of noble families. Nevertheless, there are doubts that the document was fabricated later.Japan began to dispatch envoys to China's Sui Dynasty in 607. Later, in 630, the first Japanese envoy to the Tang Dynasty was dispatched. The envoys learned of Tang Dynasty's laws, as a mechanism to support China's centralized state. Based on the Tang code, various systems of law, known as the Ritsuryō, were enacted in Japan, especially during the Taika Reform. Ritsu is the equivalent of today's criminal law, while ryō provides for administrative organization, taxation, and corvée, similar to today's administrative law. Other provisions correspond to modern family law and procedural law. Ritsuryō was strongly influenced by Confucian ethics. Unlike Roman law, there was no concept of private law and there was no direct mentioning of contracts and other private law concepts.
One major reform on the law was the Taihō Code, promulgated in 702. Within the central government, the law codes established offices of the Daijō daijin, who presided over the Dajōkan, which included the Minister of the Left, the Minister of the Right, eight central government ministries, and a prestigious Ministry of Deities. These ritsuryō positions would be mostly preserved until the Meiji Restoration, although substantive power would for a long time fall to the bakufu established by the samurai. Locally, Japan was reorganized into 66 imperial provinces and 592 counties, with appointed governors.
Laws under the shogunates
Beginning in the 9th century, the Ritsuryo system began to break down. As the power of the manor lords grew stronger, the manor lords' estate laws began to develop. Furthermore, as the power of the samurai rose, samurai laws came to be established. In the early Kamakura period, the power of the imperial court in Kyoto remained strong, and a dual legal order existed with samurai laws and Kuge laws, the latter having developed on the basis of old Ritsuryo laws.In 1232, Hojo Yasutoki of the Kamakura Shogunate established the Goseibai Shikimoku, a body of samurai laws consisting of precedents, reasons and customs in samurai society from the time of Minamoto no Yoritomo, and which clarified the standards for judging the settlement of disputes between gokenin and between gokenin and manor lords. It was the first systematic code for the samurai class. Later, the Ashikaga shogunate more or less adopted the Goseibai Shikimoku as well.
In the Sengoku period, the daimyos developed feudal laws in order to establish order in their respective territories. Most such laws sought to improve the military and economic power of the warring lords, including instituting the rakuichi rakuza policy, which dissolved guilds and allowed some free marketplaces, and the principle of kenka ryōseibai, which punished both sides involved in brawls.
In the Edo period, the Tokugawa shogunate established the bakuhan taisei, a feudal political system. The shogunate also promulgated laws and collection of precedents, such as the Laws for the Military Houses and the Kujikata Osadamegaki. It also issued the Laws for the Imperial and Court Officials, which set out the relationship between the shogunate, the imperial family and the kuge, and the Laws on Religious Establishments.
The Code of One Hundred Articles was part of the Kujikata Osadamegaki. It consisted of mostly criminal laws and precedents, and was compiled and issued in 1742, under the eighth Tokugawa shogun, Yoshimune. Crimes punished include forgery, harboring runaway servants, abandonment of infants, adultery, gambling, theft, receiving stolen goods, kidnapping, blackmailing, arson, killing and wounding. Punishment ranged from banishment to various forms of execution, the most lenient of which is decapitation; others include burning at the stake and public sawing before execution. The justice system often employed torture as a means to obtain a confession, which was required for executions. Punishment was often extended to the culprit's family as well as the culprit.
Justice in the Edo period was very much based on one's status. Following neo-Confucian ideas, the populace was divided into classes, with the samurai on top. Central power was exercised to various degrees by the shogun and shogunate officials, who were appointed from the daimyo, similar to the Curia Regis of medieval England. Certain conducts of daimyos and the samurai were subject to the shogunate's laws, and shogunate administrative officials would perform judicial functions. Daimyos had considerable autonomy within their domains and issued their own edicts. Daimyos and the samurai also exercised considerable arbitrary power over other classes, such as peasants or the chōnin. For example, a samurai is permitted to summarily execute petty townspeople or peasants if they behaved rudely towards him, although such executions were rarely carried out. Because official treatment was often harsh, villages and the chōnin often resolved disputes internally, based on written or unwritten codes and customs.