The role of comparative studies in the formation of Japan’s mixed legal system

Abstract

The theoretical influence of legal comparative scientists and the practical role of comparative legal studies of foreign law on the process of modernization of traditional Japanese law are determined in this article. The Japanese acceptance of the Western legal model, the reception of the Romano- Germanic doctrine, texts and ideology, learning from European jurists invited to the country and other factors led to the Westernization of management practice and legal regulation of life in Japan. Voluntary “legal acculturation” took place under the direct influence of comparative models of codification and reception of foreign law. The author conventionally identifies five stages of “legal westernization” of the Japanese system of law. At the first stage, French jurisprudence had the greatest dogmatic and partly practical impact on the Japanese, when the legal education of local officials in the Napoleonic spirit began, the first translations of French legal treatises took place, and Parisian lawyers prepared important codification projects. The Japanese then became fascinated with Anglo-American legal culture, driven by an influx of British lawyers who came to the islands to serve the local community of Her Majesty’s subjects, as well as the establishment of the first school of English law in the capital. At the third stage, as the reactionary-militarist policy developed, the emphasis shifted towards the German branch of the European family, and Japanese law was reoriented to the German bourgeois-landlord legislation and the pandect model of codification. At the fourth stage, there was an assimilation of American jurisprudence and US legal realism, and the mutual interest of overseas comparativists in Japanese legal studies increased. In the fifth stage, the comparative approach again became the foundations of a new wave of legal reforms in Japan. Japanese law moved slowly from the family of Confucian-Chinese and traditional Shinto law to the Germanic branch of the Roman law family and then turned into a “gray legal culture”, at the crossroads of Western and East Asian legal cultures.