100 Jahre juristischer Austausch mit Japan
Abstract
The legal exchange between Germany and Japan has a long tradition that persists even today, as the title of this article suggests. The orginator of this special relationship was an American, Commodore Matthew C. Perry. He was commander of the squadron which brought the self-imposed seclusion of Japan to an end. In the following years the diplomatically inexperienced representatives of the Tokugawa shogunate signed disadvantageous treaties with several Western powers. They instituted a system of extraterritoriality that provided for the subjugation of Western residents to the laws of their own consular courts instead of the Japanese law system. When the new Meiji government tried to get these “Unequal Treaties” revised, the Western powers refused. Instead, they set up the requirement of “modernization” (i.e. “Westernization”) of the Japanese legal system as a precondition for the abolition of consular jurisdiction and extraterritoriality.
This imposed reception of Western law was an incredible task. The main reason was simply that the Japanese legal tradition differed to the greatest possible extent from the developments in the West. Prior to the mid-nineteenth century there was not even a word or an understanding of an individual “right”. This new word (kenri) had to be coined among many others to establish a modern legal terminology. The great Japanese pioneer in this field was Rinshô Mitsukuri, who translated the whole Code civil in the first Meiji decade. This also shows that Japan first looked to France to enact modern codes. The French legal advisor Gustave Boissonade was charged with the draft of the penal code and the code of criminal procedure. He was also charged with the draft of a civil code in 1880.
However, two years earlier, the Japanese government had engaged Hermann Roesler, the first German legal advisor. This year marked an important watershed because from then on all other fundamental laws were essentially inspired by German models. The “German decade” began. The reasons for this change of legal course are not known. Presumably there was a close connection with the drafting of the Meiji constitution. It was to be based on the Prussian model since the Meiji leaders regarded this authoritarian kind of constitution as best suited for Japan. Heavily engaged in the drafting process were the two German legal advisors Hermann Roesler and Albert Mosse. Roesler was also a key figure in setting up the “Old Commercial Code”, whereas Mosse is also well known as the compiler of the draft laws and systems for local government.
Further on, the code of civil procedure was mainly drafted by the German legal advisor Hermann Techow, closely following the German model. The Code on the Constitution of the Courts, written by the German legal advisor Otto Rudorff, was also a close adaptation of the German pattern. The outcome of the famous “Postponement Controversy” (1887-92) led in the end to a “Germanization” of the Japanese civil code. Proponents of English law attacked the Boissonade Code (“Old Civil Code) for being drafted in great haste, for not being in accord with the “Old Commercial Code”, for its disregard of native customs and for technical deficiency. They were backed by conservative forces, whereas the already promulgated code was defended by proponents of French law and by liberal politicians. More for the sake of completeness, they criticized the “Old Commercial Code”, too. In the end the new parliament voted for postponement of both codifications in order to revise them. This revision meant drafting a completely new code. This time it was a “code from the Japanese for the Japanese”, for the draft committee consisted exclusively of Japanese jurists. The three main compilers, Nobushige Hozumi, Kenjirô Ume and Masa’akira Tomii, paid close attention to German civil law but also to many other models. In the end, the Meiji civil code set in force in the summer of 1898 was really a “fruit of comparative jurisprudence”.
The following twenty years marked the heyday of German law in Japan. In order to deal with the implemented foreign law, Japanese jurists looked to German legal dogma. They were impressed by the self-assuredness of the German jurists of these days who were confident that they could solve any legal problem within the precincts of a closed system. Typical for this era was this saying among Japanese jurists: “Any law other than German law is no law.”
Later the Japanese legal world overcame this single-minded orientation on German law when they shifted their attention to the social reality. After World War II the Japanese legal system came under the strong influence of the Anglo-American legal system. Nevertheless, Japanese legal experts remained interested in the development of German law. In contrast, German jurists showed almost no interest in Japanese law until the 1980s, a phenomenon criticized as a “one-way road in comparative law between Japan and Germany”. However, the situation changed when the economic success of Japan became apparent.
