Japan's Early Parliaments, 1890-1905 by Andrew Fraser R. H. P. Mason Philip Mitchell

Author:Andrew Fraser, R. H. P. Mason, Philip Mitchell [Andrew Fraser, R. H. P. Mason, Philip Mitchell]
Language: eng
Format: epub
Tags: Social Science, Ethnic Studies, General, Regional Studies
ISBN: 9781134970308
Google: -3ImB0-ZL9UC
Publisher: Routledge
Published: 2005-09-16T04:40:03+00:00

6 The Japanese Commercial Code of 1890, and its reception in the first two sessions of the Imperial Diet, 1890–1

Philip Mitchell

THE BIRTH OF THE CODE AND ITS BACKGROUND

A special supplement to the Official Gazette (Kampō) of the Japanese government on Saturday 26 April 1890 bore the following proclamation:

We hereby sanction and promulgate the Commercial Code. We decree that this law shall take effect from the first day of January, 1891.

PRIVY SEAL

Twenty-seventh day of March, 18901

Japan's Commercial Code had taken more than nine years to produce. Despite this and the seeming authority and simplicity with which this proclamation decreed that the Code would take effect within eight months, a further nine years elapsed before Japan had a Commercial Code with the force of law. For the Code was to ignite a vehement controversy, the consequences of which have influenced Japanese law to this day.

Law and the last years of the Tokugawa government

The law of Japan as it developed during the Tokugawa period can be described as fragmentary in two senses. The first arose from the bakuhan system whereby local lords owed allegiance to a central government but enjoyed a large measure of regional autonomy. The social and economic relations which complemented this regionalism meant that not only did administrative pronouncements on legal matters often differ according to locality, but that the same was true even in circumstances where law was founded purely upon custom.2 Secondly, legislation during the Tokugawa period consisted mainly of small-scale edicts. These, intended as they were to be a pragmatic way of dealing with specific needs, rather than a more sophisticated approach to a grandiose legal system, were necessarily piecemeal.

The earliest Japanese efforts to understand Occidental law were made by scholars of the government's Bansho Shirabesho (Office for Research of Barbarian Writings). The Bansho Shirabesho had been established in 1857 following the commencement of direct official relations with Western Powers, to meet a need for knowledge about those Powers. Its main subjects of study were science, geography, philosophy and art3, but in 1862 two of its scholars, Nishi Amane and Tsuda Mamichi, were sent to Leiden University, where they attended the law lectures of Simon Vissering. After their return to Japan in 1866 they both lectured on Western law at the Bansho Shirabesho, which was by then officially called Kaiseijo (Institute of Development). Nishi prepared a translation from his notes of Vissering's lectures on volkenregt (international law), which was completed in 1867 and published under the title Bankoku kōhō in 1868; Tsuda did the same for Vissering's lectures on staatsregt (constitutional law), and this was published under the title Taisei kokuhō ron, also in 1868. As a subject of study, then, Occidental legal ideas entered Japan shortly before the Meiji Restoration of 1868, though as a constituent of the actual law of Japan they did not.

One should, however, hesitate to judge simply from the fragmentary nature of Tokugawa law and the fact that it remained uninfluenced by Occidental thought, that the Tokugawa legal system fits the sometimes popular image of Tokugawa Japan as ‘backward’.

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