Foundations of Japanese law: history, the German, French and American influences, sources, the hierarchy of norms, interpretation and legal culture

Before 1868. Early Japan borrowed Chinese legal models (the *ritsuryō* codes of the seventh and eighth centuries), and later law was largely the law of feudal domains, with custom and the shogunate’s edicts. There were no general civil codes or independent courts. After the Meiji Restoration of 1868 the government set out to build a modern state in order to end the unequal treaties with Western powers, which gave foreigners the right to be tried by their own consuls, and it saw modern codes as the key to that goal.

The great codification. Japan invited foreign advisers and studied the leading European systems. The Penal Code and the first Code of Criminal Procedure drew on France and later Germany. The Constitution of 1889 (the Meiji Constitution) followed the Prussian model of a strong monarchy and a limited parliament. The Civil Code (in force in 1898) was drafted first on the French pattern, then redrafted on the German model, and the Commercial Code and the Code of Civil Procedure followed. Japan joined the continental civil-law family, with systematic codes, abstract general parts and a scholarly tradition of legal science, and its courts and legal training grew out of this model.

The three influences. The German influence is strongest in the structure of the Civil Code, the Penal Code and the legal science that interprets them. The French influence is visible in some procedures and institutions. The American influence, after 1945, is strongest in constitutional law (a written bill of rights, judicial review by ordinary courts), and in fields such as competition law, securities regulation and company law. Mixed does not mean confused: a Japanese lawyer reads statutes and codes first, uses American-style reasoning on rights, and consults Supreme Court decisions as a guide.

The hierarchy. A higher norm prevails over a lower one: the Constitution over treaties and statutes, statutes over cabinet orders and ministerial ordinances, and national law over local ordinances in the same matter. A lower rule that contradicts a higher one is invalid, and courts may decline to apply it. A foreigner will meet most rules as ministerial ordinances and administrative notices, for example on visa procedures, so he must always read the statute and the ordinance below it, and check whether the local government adds rules of its own.

Judicial decisions. Japan has no doctrine of binding precedent as in the common law. But the Supreme Court’s decisions on the interpretation of law are followed by the lower courts, and a party can appeal to the Supreme Court if a High Court decision conflicts with its precedent, so in practice a settled line of Supreme Court cases is treated as law. Statutory interpretation starts with the text, reads it systematically within the code and in the light of its purpose, and uses the drafting history and scholarly writing. Scholars’ commentaries are very influential, though they are not a formal source.

Conciliation and settlement. Japanese law gives great weight to settlement (*wakai*) and conciliation (*chōtei*). In a family matter, a party must usually try conciliation in the Family Court before suing. Civil judges often encourage settlement at any stage, and a settlement recorded by a court has the force of a judgment. Many disputes are settled by negotiation, by mediators or by arbitration. This does not mean that rights are weak: it means that the first formal step is often conciliation, and that foreigners should expect and prepare for it.

Administrative guidance. Ministries and local offices often achieve their aims by administrative guidance (*gyōsei shidō*): requests, advice and recommendations that are not orders. Guidance is voluntary in law, and the Administrative Procedure Act (1993) says that a person may not be treated unfavourably for refusing it. In practice, businesses take it seriously. Formal rules in writing, clear reasons and hearings for adverse decisions are the main tools for protecting a person who is subject to a government decision (Module 4).