Occidental Legal Ideas in Japan: Their Reception and Influence

Abstract

ONE of the most notable French sociologists of the 19th century, Gabriel Tarde, has pointed-out the important part that imitation plays in the transformation of social phenomena. When we look at the history of law and legal institutions, we are struck by the very prominent role which this imitative instinct has played in the juridical field. Take, for instance, the theory of judicial precedent which is considered characteristic of the Anglo-American administration of justice. Although something of the creative element may be discerned beneath the surface, the system of following precedents in judicial administration is largely a system based on imitation of the decisions of predecessors. But in the juridical world Monsieur Tarde's thesis finds its most striking support in the phenomenon called the Reception of Law. When Europe began to build up its modern civilization, what Maitland calls Three R's-Renaissance, Reformation and Reception-constituted the three outstanding events of the New Age. The reception of Justinian's Corpus Juris by peoples especially of Continental Europe is a fundamental fact by which not only the law of modern Continental Europe but also of Latin America has been determined. No less remarkable is the reception of the English Common Law in the United States. Theoretically, the Pilgrim fathers may be said to have brought their law with them from England, but practically, as Dean Pound ably points out, in his Spirit of the Common Law, the reception of English law in the United States took place after the American independence, and chiefly through the decisions of the courts in the first half of the 19th century. No less striking is the reception of occidental laws in the oriental countries. The most interesting examples are the reception of English law in India as is evidenced in the so-called Anglo-Indian Codes, the reception of German Codes in Japan, and present-day movements of a similar character in Siam, Turkey and China. The history and influence of the reception of occidental laws and juridical ideas in Japan is instructive in many ways.