Law, Colonial Systems of, Japanese Empire
Law, Colonial Systems of, Japanese Empire
Beginning in the mid-sixteenth century, European merchants and missionaries began visiting Japan. These Westerners, known to the Japanese as Nanban (literally, "southern barbarians"), earned tremendous profits, and their frequent visits opened a period of expanded commercial and cultural exchange between Japan and the West. Internally, Japan was divided by warring factions, which in 1600 were forcibly united under the Tokugawa shogunate, a type of military-civil administration. Its leaders grew suspicious of the foreigners' motives, and in the 1630s all Westerners were banned from Japan except a very restricted number of Dutch traders who were limited to port calls near Nagasaki.
For the next two hundred years, Japan's leaders quarantined the country from virtually all international contacts, cultivating instead a social system, culture, and politics centered on the divinity of the emperor and unquestioned obedience to imperial edicts. The legal system was relatively simple. Most disputes were resolved either by the intervention of samurai, the high-caste chieftains who supported the throne, or through customary practices of mediation, conciliation, and resolution. Renewed contact with expanding Western colonial powers in the mid-nineteenth century forced Japan to adopt a series of internal reforms, including legal modernization, which Tokyo then utilized in the construction of its own colonial empire in Asia.
THE MEIJI RESTORATION
In 1854 an American naval force coerced the ruling shogunate into signing a treaty that gave Western merchants open access to Japan, while obliging Japan to provide supplies for Western ships and suspending Japan's legal authority to control visiting foreigners. Recognizing Japan's vulnerability, and fearing invasion by one or more of the Western powers, the old Tokugawa leaders faced a crisis. Civil war erupted between conservative and reformist leaders in 1867 to 1868. The victorious reformers gained support from the young Emperor Mutsuhito (1852–1912), who took the throne in 1867.
Mutsuhito adopted the reign name Meiji ("enlightened rule"). With guidance from the reform clique, the Meiji emperor vowed to restore Japan's strength as a nation and to make it a peer of the Western powers. His first major reform, introduced in 1868, was the Five Charter Oath, which included a commitment to replace traditional methods of conflict resolution with a uniform system for administering justice. A rudimentary constitution was promulgated, placing Japan's sovereignty in the person of the emperor himself. Japan's brightest young scholars attended European and American universities, where their studies included administration and law. Upon their return, these students advised the Meiji government on how to rapidly transplant to Japan Western institutions that would build it into a political, commercial, and military rival of the great powers of the West.
Reform of Japan's traditional legal system was central to this plan. Continental European legal codes and procedures gained favor with Japan's reformers, in preference to Anglo-American jurisprudence, which relied upon a complex body of legal precedent and case law. The systematized procedures of continental law were practical, less complicated, and amenable to modifications that accommodated traditional Japanese social mores. For example, in 1875 a government decree provided a new criminal justice framework based in part on French law, but it also allowed for Tokugawa-era conciliation procedures as well.
Indeed, several features of French law were introduced in the early Meiji period, including the opening of courts to journalists, prohibition of torture in civil cases, restrictions on methods of torture in criminal cases, and the use of appeals procedures. Tokugawa-era orders, like the Code of a Hundred Articles of 1742, which instructed the governed on how they should act, were replaced by French-style laws that identified unacceptable behaviors and specified punishments for each offense. Japan's Penal Code and its Code of Criminal Instruction, both introduced in 1882, reflected French practices that emphasized aggressive investigations and inquisitorial procedures.
Over the next fifty years, German legal theories also gained ground in Japan. Early evidence of this came with the promulgation of Japan's first Code of Civil Procedure, adopted in 1890. Under this new system for civil actions, pretrial witness interviews were disallowed; interviews were reserved instead to the court itself during trial proceedings. Judges were assigned to lead trials, rather than act as referees between the parties, as they do in Anglo-American legal procedure. A German adviser to the Meiji court drafted Japan's first Commercial Code in 1893, which regulated sales, contracts, and bankruptcies. An updated Commercial Code adopted in 1899 remained in force until the 1930s. It legalized new commercial tools, including checks and promissory notes, and regulated freight and marine trade. Japan's judges and lawyers were selected according to the German practice of examinations, interviews, and apprenticeships overseen by officials from the Ministry of Justice. Finally, in 1922, the old French-style criminal procedures law was replaced by a German-influenced criminal code that remained in effect until Japan's occupation by the United States following its defeat in World War II (1939–1945).
LAW AND ORDER IN THE JAPANESE EMPIRE
With centralized legal systems borrowed from continental Europe and a uniform belief in the sovereignty and infallibility of the emperor, Japan embarked upon an ambitious foreign policy program designed to provide it with the resources and manpower necessary to rival the Western powers. Beginning in the 1880s, when elements of the Kuril and Ryukyu Islands were annexed, Japan's empire grew to include Taiwan (1895), Korea (1910), ports and privileges in mainland China, Germany's Pacific island possessions (following Germany's defeat in World War I), Manchuria in northeastern China, and, between 1940 and 1942, the mainland and maritime Southeast Asian colonies of the British, French, and Dutch.
From the beginning of its colonial expansion, Japan imposed legal distinctions on its nonmetropolitan territories. An 1899 government directive labeled such territories as shokuminchi, or colonies, where the executive orders of the imperial government would not generally be applicable or enforced. Instead, the colonies would be subject to special ordinances issued by local administrations. Important exceptions arose with the annexation of Taiwan and of Korea, which were designated as "sovereign colonies" to which selected elements of Japan's constitution and existing laws would apply. Voting rights were not included, but individuals in these colonies were regarded in law as Japanese nationals. In 1929, after acquiring some 1,400 Micronesian islands formerly owned by Germany, Japan saw that the complexity of colonial affairs demanded new solutions. It created a Ministry of Colonial Affairs to liaise between the imperial government at Tokyo and its far-flung colonial administrations.
Fundamental decisions were made to limit the legal protections afforded to conquered or annexed peoples. Most colonial subjects of Japan lived under martial law administered by military governors-general who exercised both civil and military authority. Civilian Japanese bureaucrats ran economic and public enterprises, while military garrisons of Japanese troops enforced Tokyo's policies. Military control was reinforced through strict enforcement of colonial ordinances by the kempeitai, or gendarmerie units, which spread throughout Japan's colonies. This police force, first developed to suppress anti-Japanese guerrillas in Taiwan in the 1890s, expanded its role from counterinsurgency to other important areas, including tax collection, curfew monitoring, and enforcement of racial segregation directives. Combining its extensive police powers with intimidation and retaliation, the kempeitai was widely feared. It often succeeded in securing local leaders' cooperation in maintaining internal security and the uninterrupted economic productivity of Japan's colonial territories.
Since Japan's colonial policies were not aimed at long-term goals such as political pacification or cultural assimilation, but rather at efficient economic exploitation, local institutions that did not cooperate were regularly destroyed or absorbed into Japan's governance scheme. When Korea's urban population proved difficult to control, for example, Japan reorganized the Korean army and police as units of its own military, and used the education system, the press, radio, and films to try to erase the distinctiveness of Korea's national identity and replace it with obedience to Japan's emperor. Japan also imposed Meiji-style reform laws in Korea, such as changing traditional land-tenure practices and terminating the legal privileges of Korean social elites. These tactics reflected the breadth of Japan's political and social control of Korea as a colony, where the subjugated population had virtually no legal recourse against the occupying power.
The peoples added to the Japanese Empire were also stripped of any legal right to refuse service to Japan or to its colonial administrations. In 1918 Japan enacted a directive providing for its colonies a uniform legal system covering criminal, civil, and commercial matters, and also imposing military conscription duties. Colonial administrators publicly emphasized the obligations of Japan's subjects, rather than their rights. As the most heavily populated colonies, Taiwan and Korea bore the brunt of military service and labor levies.
In 1939, in preparation for expanding the empire in Southeast Asia, Japan adopted the Military Manpower Mobilization Law, which rendered all people in Japan's colonies susceptible to labor drafts and forced relocation for unlimited periods of time. Japan's subjects from Manchuria to Micronesia were registered, conscripted, and compelled to work on construction projects for both civilian and military installations. When more manpower was needed, Tokyo issued a directive forcing some 200,000 convicts out of Japan's prisons and into labor battalions that were dispatched to numerous Pacific islands to participate in airfield construction.
POSTWAR CHANGES AND INDIGENOUS PEOPLES
Following Japan's defeat in 1945, Allied forces occupied most of Japan's colonial territories. Japan itself was occupied principally by U.S. forces, which established a military-civilian government that ran Japan's affairs until 1952. During this period, Japan accepted a new constitution that conformed closely to the U.S. Constitution. It afforded personal rights to Japanese citizens and relegated the emperor to the role of a largely symbolic and powerless figurehead. Anglo-American jurisprudence was also introduced, including adversarial courtroom proceedings and separate police investigatory procedures. Japan joined the United Nations in 1956, subscribing both to the human rights clauses of the UN Charter and, later, to most major international legal rights and human rights conventions.
Indigenous ethnic minority populations in Japan's islands had long been neglected and legally disempowered by Tokyo. In the 1970s these minority peoples began to establish new legal and political identities, in part by launching claims to recognition under international human rights conventions. The Okinawan minority, who live in the Ryukyu island chain and number approximately 1.3 million people, and the Ainu minzoku, or folks, an aboriginal population that resides in northern Hokkaido and numbers approximately 50,000, have been among the most vocal minorities to demand recognition and rights from the Japanese government. While Tokyo has made some concessions to these minorities, and continues to assess the advisability of enacting special legislation to assist these groups, Japan's courts have begun to extend special legal recognition to them.
see also Empire, Japanese.
Anaya, S. James. Indigenous Peoples in International Law, 2nd ed. Oxford: Oxford University Press, 2004.
Beer, Lawrence Ward. Freedom of Expression in Japan: A Study in Comparative Law, Politics, and Society. Tokyo: Kodansha International, 1984.
Dudden, Alexis. Japan's Colonization of Korea: Discourse and Power. Honolulu: University of Hawaii Press, 2005.
Duus, Peter, Ramon H. Myers, and Mark R. Peattie, eds. The Japanese Informal Empire in China, 1895–1937. Princeton, NJ: Princeton University Press, 1989.
Duus, Peter, Ramon H. Myers, and Mark R. Peattie, eds. The Japanese Wartime Empire, 1931–1945. Princeton, NJ: Princeton University Press, 1996.
Henderson, Dan Fenno. Conciliation and Japanese Law: Tokugawa and Modern. 2 vols. Seattle: University of Washington Press, 1965.
Myers, Ramon H., and Mark R. Peattie, eds. The Japanese Colonial Empire, 1895–1945. Princeton, NJ: Princeton University Press, 1984.
Peattie, Mark R. Nan'yō: The Rise and Fall of the Japanese in Micronesia, 1885–1945. Honolulu: Center for Pacific Islands Studies, University of Hawaii Press, 1988.
von Mehren, Arthur Taylor. Law in Japan: The Legal Order in a Changing Society. Cambridge, MA: Harvard University Press, 1963.
Yamada, Y. "The New Japanese Constitution." The International and Comparative Law Quarterly 4 (2) (1955): 197-206.