||Politics of codification in Meiji Japan (1868-1912) : Comparative perspective of position of customary law in Japanese civil code
Van Den Berg, Peter A. J.
Osaka University Law Review
88 , 2018-02 , Graduate School of Law and Politics, Osaka University
The purpose of this paper is to explain a crucial difference between the Japanese civil code and its European equivalents, such as the French civil code and the German BGB, with regard to the position of customary law. Whereas the European codes contained a strict exclusivity clause, the Japanese code allowed for the continued existence of many important legal customs. It will be argued that this difference can be accounted for by comparing the political background of the European codifications with the reasons that led to the introduction of a civil code in Japan. In continental Europe, the main aim of the codifications was achieving legal unity at a national level, which was deemed necessary as a requirement of the process of nation building. Since customary law was predominantly local law, it had to be abolished entirely. In Japan, the main incentive to work on a codification was also political, but with other features. Above all, the Japanese wanted a codification as a means to convince the Western powers that the Japanese legal system had been modernised and thus the unequal treaties could be revised. With attaining legal unity being only of secondary importance, customary law did not need to be abolished altogether. On the contrary, retaining legal customs proved to be an excellent strategy to salvage at least some of the Japanese legal traditions.