Japanese legal reception and the transformation of legal culture

Author: Huaxia
Publisher:
Publish Date: 2005-10-01
Features: Legal reception, also known as legal transplantation, is a primary form of interaction among different legal systems, legal institutions, and legal cultures. Traces of legal reception can be found to varying degrees in the legal development histories of many countries. Therefore, legal reception has not only become one of the focal points of scholars but also a major means for many countries to establish and improve their legal systems. Japan has long been renowned for its ability to absorb the strengths of others, a characteristic that is also reflected in its attitude toward legal systems and legal cultures. Ancient Japan extensively received the legal systems and legal thoughts of China, and the Ritsuryō law, which was adopted from China, combined with the governance practices of Japanese samurai to form the Buke law. This constituted the main legal tradition in Japan before the modern era. During the Meiji Restoration, under the influence of the "Decomposition of Asia and Entry into Europe" ideology, Japan comprehensively and generally adopted Western law, primarily based on German and French law. This resulted in a complete structural or formal break from traditional legal systems, giving Japanese law an appearance identical to Western law. After World War II, Japan began to receive American law in various fields, including the constitution, adding many American legal elements to the modern Japanese law based on the continental European legal system. From this perspective, one could say that the legal history of Japan is a history of legal reception. Japan's three successful instances of legal reception have not only enriched the research materials on legal reception but also expanded the scope of studying legal reception issues by incorporating the reception of laws from different legal systems and legal cultures. More importantly, Japan's relatively successful legal reception can provide many practical experiences and lessons for countries that hope to improve their legal systems by and absorbing the "essence" of legal systems or legal cultures from other nations. This holds particular practical significance for our country, which shares the same language and ethnicity as Japan and emphasizes the absorption of foreign advanced experiences in the construction and improvement of the socialist legal system. For this reason, since the mid-1990s, the Institute of Comparative Law at China University of Political Science and Law and the Institute of Japanese Comparative Law at Chūō University in Japan, with the support of the Japan Foundation for International Exchange, have successively established four joint research projects on related topics, conducted joint research, and achieved certain results. The content of this book is based on the research findings of the fourth joint research project between China and Japan, titled "The Establishment of the Modern Japanese Legal System and the Reception of Foreign Law." Huaxia (China University of Political Science and Law) contributed to Chapter 1 Introduction, Chapter 6 Legal Reception and the Positioning of Japanese Law, and Chapter 7 Changes in Japanese Legal Culture; Shinkichi Sannomiya (Chūō University) contributed to Chapter 2 An Overview of the History of Japanese Legal Reception; Zhao Lixin (Hebei Normal University) contributed to Chapter 3 The Reception of Chinese Law and the Formation of Ancient Japanese Law, Chapter 4 The Reception of Continental European Law and the Modernization of Japanese Law, and Chapter 5 The Reception of Anglo-American Law and the Modernization of Japanese Law; and wrote the corresponding chapters. Additionally, Professors Kazuo Nagai, Shunsuke Nishikawa, and Takayuki Shiihashi of Chūō University participated in the research of this project. Lecturer Cui Yanhua of China University of Political Science and Law translated Chapter 2 and handled the project's liaison work. Graduate student Jiang Lihong of China University of Political Science and Law was involved in the project from the beginning, assisting in the organization and printing of the manuscript. Wang Shuxiang of the Institute of Comparative Law at China University of Political Science and Law contributed significantly to the organization of the research findings. On behalf of the authors of this book, we express our gratitude.
Furthermore, legal reception and legal cultural change are broad and complex issues. Given our limited knowledge and theoretical, as well as the time constraints of the project, this book may contain errors and omissions. We sincerely welcome criticism and corrections from knowledgeable readers. Huaxia March 2005, Institute of Comparative Law, China University of Political Science and Law