By J Southgate, Fall 2000
III. Introductory Materials
IV. On-line Resources
V. Primary Legal Sources
VI. Topical Resources
1. Through Muromachi
4. Occupation and Postwar
B. International Law
D. Free Speech
E. Constitutional Law
F. Workers’ Rights
G. The Emperor System
H. Women’s Rights
NOTE: to start any project that includes using legal documents, first read Herschel Webb, Research in Japanese Sources, Ch. 9, "Law and Other Official Sources."
The quality and availability of legal resources to the scholar vary markedly in relation to one’s legal training and interest in the law, and navigating the numerous compendia, bulletins, and case histories can therefore be something of a challenge to the uninitiated. The rare find, however, is worth the effort of a search for the scholar, as Japanese law, like all national laws, represents a reification of the customary law that has diachronically held sway over the people. Accordingly, if one wishes to know, for example, what the state’s (and therefore the people’s) position with regards to marriage was in the Taishô period, a careful perusal of some of the following will pay dividends, whatever their individual levels of difficulty in use.
The first, and perhaps best, source of information on the Japanese legal system one should turn to is a work in English edited by Hideo Tanaka, The Japanese Legal System, which provides a smattering of representative and landmark cases in translation. One of the key features of this volume is that it lays out the postwar legal process in incredible detail: reading it one comes away with both a sense of how law is “made” in the courts of Japan, and how that law then impacts the lives of the people. In addition, Tanaka provides a series of appendices that includes both a bibliography of Japanese and English language sources on Japanese law and, what is more important, a list of major laws and their promulgation dates through 1972.
Some other basic works which are useful for general legal bibliography are: Sengo hôgaku bunken sômokuroku, Hôgaku kenkyû no shiori, and An Index to Japanese Law, 1867-1961.
The next major source one should turn to is the law itself. Here, however, we encounter the somewhat onerous task of wading through the dizzying complexity of the Japanese legal hierarchy. The two major collections of Japanese law, the Kanpô and the Hôrei zensho, represent the complete texts of all legal and administrative actions made by the central government since 1867. The Kanpô, from which the text of the Hôrei zensho is extracted, includes treaties, ministerial edicts, statutes passed by the Diet or other governing body (such as the Dajôkan), announcements of appointments, elections, promotion of military officers, “state of the union” style summaries, and daily reports on the weather, tides, and so on. In its prewar formulation, the Kanpô even included the texts of doctoral dissertations accepted by the Ministry of Education. Published daily since 1883, this is the authoritative text for scholarly use. The Hôrei zensho has had a slightly longer print run, and is useful for the period between 1867 and 1883, but after this time it is for the most part supplanted by the Kanpô.
As one can probably tell by the sheer amount of information provided in these texts, finding a particular law is akin to the proverbial needle in a haystack. In fact this process is made more difficult, despite the presence of a table of contents for each edition and for each imperial period, by the nomenclature employed by the Japanese to categorize their laws. All statutes are referred to by two separate names that, as is the case in the American system, are used interchangeably. The first of these is the issuing authority. In the prewar period there were a number of different authorities that could enact law, including the House of Peers and the House of Representatives, the Emperor, and the cabinet. Laws could take the form of Imperial Ordinances, Prerogative Ordinances, Extraordinary Ordinances, Rescripts, or Cabinet Ordinances, depending upon the authority responsible and the time in which they were promulgated. After the war this process was streamlined somewhat, but the forms laws now take are still multivariate: hôritsu enacted by the Diet, the various rei enacted by executive organs (i.e. the Ministers or the Cabinet), and those that result from international treaties.
The second name for a law is that of its function, for example the “Suspension of the Jury Act.” Knowing a particular act’s name, however, will not help you necessarily to find it in most official sources. The arrangement of the law in the Kanpô and the Hôrei zensho is by class and date, not name, and one must know, at the very least, the date an ordinance was issued in order to find its text or the debate surrounding its creation in these sources.
To overcome this problem the use of a subject index is necessitated. Before 1936 the Hôrei sakuin sôran is useful, but limited by the fact that it only lists those laws being enforced at the time of its publication. The same is true for the Nihon hôrei sakuin, the serial continuation of the Hôrei sakuin sôran, covering the period up to 1949. To find out what the current law is with regards to a specific subject, one must turn to the Genkô hôrei shûran, which not only lists the current law and the date of its original enactment, but all subsequent amendments to it. This is organized according to the Roppô, or “Six Codes” system, which is comprised of the civil code, criminal code, code of civil procedure, code of criminal procedure, commercial code, and the Constitution. As is the case with the preceding reference works, however, this work is also limited by its editors’ decision to include only those laws enforced at time of publication. Thus, one has either to know the year in which a law was enacted, or know that it is still enforced in one manner or another to use these subject indexes to the official sources.
An alternative option is to seek out specific texts on the subject law in which you are interested. Because of the weight, size, and difficulty of use of the volumes already mentioned, many commercial publishers have taken it upon themselves to produce these types of reference works. The topics covered run the gamut from Women’s rights legislation to trade reform. “Pancake” covers quite a few of these, and some specific titles are mentioned in Sect. VI.
International House of Japan Library, A Guide
to Reference Books for Japanese Studies. Rev. ed., 1997.
Call number: REF Z3306 .G84 1997g
Relevant pages are 22-26 (English language) and 186-196 (Japanese)
Purportedly a summary of all books, pamphlets, articles, essays, book reviews, summaries, and cases on/of Japanese law available in the English language. Citation information may be incorrect in some instances. Arranged by subject; includes a history of Japanese law section.
Chapter 9, “Laws and Other Official Sources,” provides a good overview of available sources in English and Japanese.
Melvin Belli and Danny Jones, Belli Looks at Life and Law in Japan.
Indianapolis and New York: Bobbs-Merrill, 1960.
Call number: KNX 72 .B44 1960g
Charming portrait of Japanese legal applications in the postwar period. Despite a somewhat “orientalist” gaze implicit in the narrative throughout, an excellent comparative study of the Japanese and American legal systems.
Excellent introduction to the study of Japanese Law as an academic discipline. Noda traces the evolution of the Japanese juridical mien from early customary law, through the ritsuryo and bakufu legal systems, and on to the present. Along the way he dissects the structures of the legal and governmental professions and introduces a social component in section two of the book: “The Japanese and the Law.” In addition, Noda analyzes the sources and practice of modern justiciable law.
The single most comprehensive introduction to modern jurisprudence in Japan, this volume, as mentioned above, traces the forms and functions of Japanese law from both a historical and a procedural perspective. Numerous sample cases and a chapter on doing legal research in the Japanese language and in Japan make this a definite first stop in any Japanese legal research. The detailed appendices list bibliographic information, a table/timeline of statutes, and a full-index that make the volume incredibly easy to use.
This book is a collection of the proceedings of a conference on Japanese Law held at Harvard University’s Law School in September 1961. While some of the essays require a prior knowledge of legal procedure and terminology, the bulk of the volume is dedicated to interpreting the Japanese system of law for an American audience. Featured essays include: historical development of the Japanese legal system; Japanese legal education; interaction between the state, the law, and the individual; and the Japanese legal system’s role in the economy. Rex Coleman provides a table of all materials cited, and for those interested in using the Kanpô, this is particularly useful because he provides the dates of promulgation.
A 45-page introduction to the constitution, civil code, commercial code, labor law, and social security legislation of Japan. No index or bibliography.
Web-based journal of current Japanese law translations; fully searchable through back issues. You can also subscribe to a newsletter.
Excellent resource of cataloged web-pages dealing with some aspect of Japanese law. Each links is classified by content and language of encoding. Please note that there is a heavy emphasis on business law.
Geared towards business and government regulation; major translations and good background material on the legal system.
Excellent resource for finding statutes and relevant cases from the only American law school in Japan.
Stanford University’s links to Japanese legal resources.
Japanese language page highlights Japanese legal standards and IP regulation.
The first place to turn on the web for Japanese and English language resources on Japanese law. A veritable clearing-house of websites.
Kanpô. Kanshû Okurasho Insatsukyoku.
Microfilm EJFN 5. 1927-1995, Microfiche EJFNX3 1
Kanpô, or the official gazette of Japan, is the public record of the central government of Japan, published since 1883. Webb says that this is the recognized source to cite for official government statements. Published in English between 1946-52 for the Allied Occupation Authorities as "The Official Gazette."
A listing of the table of contents of the Kanpô, the official gazette of Japan. These three volumes cover only the Meiji period.
An index to the debates in the prewar Imperial Diet.
The official compendium of all laws and executive ordinances of the national government of Japan, from 1867 to the present, published monthly. Texts are taken from the Kanpô. This is the only adequate source for laws promulgated between 1868-1883. If one knows when a specific law came out, then the Hôrei zensho is the place to go to find the particular law. It is a difficult collection to use, however, and is arranged by the type of legal instrument, e.g. imperial proclamation, etc. It covers only national laws, so one is not able to ascertain what was going on at the prefectural or local level. Hôrei zensho sômokuroku is the annual index to this collection.
Columbia's Law Library has Hôrei zensho from 1913 to 1945 on microfilm, and 1978 to the present in hard copy. There are a few other hard copy issues outside the period mentioned, but they are in storage and one must coordinate with Ms. Nakashima, the archivist, in order to see them. Ms. Nakashima is working to fill the gap by purchasing Hôrei zensho between 1946 and 1977. As of December 15th, 2000 this had not yet been completed.
Published by the Cabinet Records Office (Naikaku kiroku-kyoku), the Hôki bunrui taizen is a classified compendium of laws up to 1887. It was published between 1889 and 1894. Organized according to 22 different categories, including the polity, diplomacy, hygiene, transportation and crime, it is easier to use than the Kanpô or the Hôrei zensho. Most importantly, it includes commentary by the various agencies involved in the promulgation of laws, providing a behind-the-scenes look at the creation of early Meiji state policy.
1. Through Muromachi:
John Carey Hall, Japanese Feudal Law. Washington: University
Publications of America, 1911 (Reprint 1979).
Call number: KQP .H3 1979
John Hall’s 1911 volume combines an earlier translation in three parts of the Goseibai shikimoku (the Ashikaga Code of 1336), with a collection of the Tokugawa regulations (in three parts: Buke, Bushi, and edicts). The translations are competent but the volume is nevertheless difficult to use because it lacks an overarching index. The individual sections of translation are disjointed and hard to make sense of without the table of contents embedded in the introduction to each piece. Laws are categorized and numbered without a corresponding page number; one has to find the assigned number therefore to find a particular law. Time consuming!
Translation, with extensive footnotes, of the Kemmu Shikimoku (Ashikaga Code of 1336) and the Muromachi Bakufu Tsuikahô. The translation has a short index of limited use, and looking up the particular provisions of the Shogunate can be difficult if one is unfamiliar with bakufu law. The introduction provides a nice overview of the radical invention of legal precedence that occurred during this period, and is worth reading for a general sense of the direction and scope of jurisprudence at the time.
John Henry Wigmore, ed. Law and Justice in Tokugawa Japan: Materials
for the History of Japanese Law and Justice under the Tokugawa Shogunate
1603-1867. University of Tokyo Press, 1985.
Call number: KQP .W5 1967
The single greatest source for Tokugawa Legal practice in the English language, Wigmore’s 10-part, multivolume series is a feat of translation. Each volume is arranged by topics, which include: contracts (civil customary law, legal precedents, and commercial customary law), property (civil customary law and legal precedents), procedure, and “personal law” (including legal precedents and civil customary law). Within each volume, the translations are further subdivided by case, providing the scholar of Japanese law the customary question and answer forms that comprised the body of Tokugawa law. Remarkably easy to use, volume 10 contains a richly cross-referenced index to the entire series, which makes the search for legal precedents a snap. Note: it is recommended that one look at the first volume in the series for an introduction to Tokugawa legal practices before using this source.
A translation and commentary on the Shûmon tefuda aratame jômoku that details the laws and regulations of the Satsuma han during the Tokugawa period. The volume is bilingual and the commentary is useful for looking at how the orders of the bakufu were carried out in the domains. Translation is based on the 1853 version of the text.
The place to look for Edo period laws of the bakufu in Japanese.
A collection of laws of various domains in the Edo period.
Original and translated copies of fifty Tokugawa sorôbun documents ranging in topic from water rights, familial relations, and headman selection to apology agreements and inter-village partnerships. Introduction is useful for understanding dispute resolution in Tokugawa villages and the rule of law at the time.
Hôritsugaku jiten. Tokyo: Iwanami Sôten, 1939.
Dictionary of legal terms extant during the Meiji, Taishô, and early Shôwa periods. Entries are signed and written in modern Japanese, arranged in gojûon order. Foreign legal terms are included as well.
Iwanami’s Nihon kindai shisô taikei series is a godsend for historians interested in the nineteenth century. Arranged by subject, each volume in the series follows the same basic format: annotated theme-relevant summaries of documents, full-text versions of crucial documents, and an index to the volume itself. Volume 7, Hô to chitsujo concentrates on Meiji legal precedents from the Bakumatsu period until Meiji 40. The topics covered fit into the theme of “law and order” and cover everything from the statutory regulation of marriage/divorce to the laws against theft. Selection of cases, however, within these categories is constrained by the length of each section (on average only 10 pages or so), and the volume is therefore limited in its usefulness as a specific resource above and beyond its excellent legal annotations.
A priceless volume, this book details Itô’s arguments for the newly promulgated Meiji Constitution, article by article, and includes not only a full translation of the Constitution but also, in a series of appendices, eight of the most important statutes of the day (i.e. The Imperial House Law and the Law of the Houses). For a contemporary view of the Constitution’s creation, this is a must read.
Alfred C. Oppler, Legal Reform in Occupied Japan; A Participant Looks
Back. Princeton University Press, 1976.
Call number: KQP .O66
Oppler’s autobiography provides an insider’s look at Japanese postwar legal reform, significant for its attention to Meiji era legal precedents and the Occupation’s goals for democratizing Japanese law. Heavier on jurisprudence then subjective observation, this volume is a relevant and important, if off-beat, document of Japanese law during the Occupation.
Upham’s penetrating analysis of postwar jurisprudence takes a topical approach to the study of law and social change. The book covers environmental law, Buraku liberation, industrial policy, and legal rights. Case law and relevant documents are cited, but for the text of statutes relating to these topics it is better to look elsewhere (i.e. one of the privately compiled topical collections). Chapter 6 is a must-read for all students of modern Japanese law.
John Peter Stern, The Japanese Interpretation of the “Law of Nations,”
1854-1874. Princeton University Press, 1979.
Call number: JX 1577 .S73
A monograph that attempts to trace the development of international legal consciousness in Japan from the time of Perry’s Black Ships to the Taiwan Incident. More history than law, this volume nevertheless presents a critical case study for Japanese legal historians and cites/quotes some of the most important contributions to the eventual acceptance of kôhô. Stern provides an excellent bibliography for scholars in this field. A good starting point for international legal studies and Japan.
This volume provides an excellent overview of the methodology of concluding treaties with the Japanese coterminous with an impact study of those treaties on domestic Japanese law. Discussion includes economic, political, and multilateral treaties, a review of the unequal treaties and a look at the treaty negotiations/conclusions between 1951 and 1970. Although this volume is somewhat dated in its contents, it is primarily useful for its theoretical components and for the indices it includes: a bibliography, and calendar of Japanese treaties through 1970.
Study of colonial policy with regards to citizens of the Japanese empire, especially in Korea, with an eye to legal claims currently being made in Japanese courts against the government by former subjects of the empire. Includes a historical discussion of the issues from the first incursions on Korean sovereignty to the repatriation of colonial peoples in Korea and elsewhere. Relevant legal statutes are provided in an appendix at the end of the book.
Takayuki Sakamoto, Building Policy Legitimacy in Japan: Political
Behavior Beyond Rational Choice. St. Martin’s Press, 1999.
Call number: JQ 1629 .P64 S25 1999
Lawrence Ward Beer, Freedom of Expression in Japan: A Study in Comparative
Law, Politics, and Society. Kodansha International, 1984.
Call number: KQP .B44 1984
The single most informative volume in English or Japanese on freedom of speech in Japan. Cites and includes all relevant legal cases. Includes a history of the right to expression from the Meiji period through the present day. Further discusses topics in free speech law, like the obscenity question and the regulation of the media. Fully indexed.
Yoshida, Yoshiaki, Nihonkoku kenpôrôn. Sanseidô,
Call number: KQP .Y67 1990
Interesting discussion of the Japanese constitution, with index and bibliography that make Yoshida’s commentary on the constitution easy to follow.
The single best volume of essays on the Japanese Constitution in the English language. Topics include: human rights, the emperor system, article 9, local autonomy, rule of law, separation of church and state, welfare, freedom of expression, and criminal rights. All contributing authors are respected professors of law at institutions in the United States and Japan.
Tamura Yuzuru, Nihon rôdôhô shirôn. Hashimoto
Call number: KQP .T35
Collection of laws, with commentary, relating to workers’ rights in Japan.
Tennô to kenpô: Kenpô hyakkunen, dô ichizukerarete
kita ka. Kadokawa Shoten, 1990.
Call number: KQP .T45 1990
Kokusai jôsei no chii kyôkai, ed., Josei kanren hô
deetabukku: Jôyaku kankoku sengen kara kokunai hô made.
Call number: K644 .A48 1998