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much in common with us in its ideals, its aspirations, its commercial energy, and its political system, embryonic as that system is considering that it is within the last fifty years that Japan has enrerged from feudalism and adopted representative institutions. Hence we welcome our guest this evening, not as a stranger about to enlighten us concerning an entirely strange and alien system of law, but as a citizen of a country to which our own is bound by strong ties of sympathy, friendship and common interests, and whose legal system will more and more, as the political, commercial and social relations of the two countries expand and develop, become a matter of practical concern and importance to use. It gives me great pleasure to present to you Dr. Rokiuchiro Masujima and to thank him most heartily and cordially for the courtesy of his presence to-night.
THE PRESENT POSITION OF JAPANESE LAW AND JURISPRUDENCE.
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 sys
tem 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 me 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? What the process of its improvement? 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? 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 ac
tivity contributes. The people themselves as well as the Bench, the Bar and the Faculty of the Law School con tribute 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 judicial business, and the experience of Japan in this respect has been no different from that of any nation with centuries of history to look back upon. It could not be otherwise. Japan had passed through long periods of unsettlement and unrest, when clan opposed clan, and family opposed family. The cases that arose were mostly criminal, and the policy of the government was to keep the peace and
avoid quarrels. The people were mostly agricultural, their disputes concerned the possession and control of fields, forests, and streams, of rights of pasturage, woodcutting and fishing, the rights to which were settled by arbitration as regulated by custom and immemorial usage. The law of contracts which plays so large a part in our more complex industrial and commercial society had scarcely any scope in the limited activities of the samurai and farmer classes. In country villages the people generally settled their disputes for themselves without recourse to the law; in towns, the aid of the law was more frequently invoked; but so great was the rigidity of the rule which was laid upon the people, and so submissive was their temper, that a case at law generally meant nothing more than a bare statement of the case on either side, resulting in an award rather than the decision of the judge. Indeed, the whole trend of the ancient administration was to discourage all forms of litigation, and to have things settled out of court by private arbitration as much as possible.
Under these circumstances, occasions were rare for the rendering of judgments, nor were they generally based on the abstract principles of right and wrong underlying the facts over which the litigation had arisen. When a man got himself hopelessly into debt, his family and relatives did their best to arrange his affairs for him with the proceeds of sales effected on his property. If they failed to make a satisfactory arrangement, the whole estate was placed with the local authorities to be administered under their supervision. When a sentence of the local official was unsatisfactory, or when a miscarriage of justice occurred, the litigant might himself invoke the superior authority; but he seldom did so.