Studies on Chinese Law in Japan: Legends of Tokyo School
Osamu Takamizawa
Introduction
It's a pleasure of me to see you all even through Zoom. Today's theme is“Studies on Chinese Law in Japan, Legends of Tokyo School.” I will end the class a bit
early because I would like you to think about a question. The question is what kind offunction Chinese legal system has for Japanese as a center, or a periphery. Definitely,
this is the most important theme of today.
Today I have seven parts, including introduction and conclusion.
The history of Japanese legal system is that of studies and the introduction offoreign law or laws. Chinese law had been the main model in pre-modern Japan, andhas been also one of the most important subjects of research since the Meiji era.
In the first, “what is law?” as a difficult question.
Tentatively, one of the social norms. I would like you to see your opinion or
your own definition of law. Could you please, using the chat function, give me yourown definition, image or prejudice of law?
I would like participants to give me your own definition, images, or prejudice.
Tentatively, we can define it as one of the social norms. And what is Chinese
law? We can divide three major periods of long Chinese history. The first is ancient.
Ancient means the Spring and Autumn period and before it. And then, Imperial period,
including the kingdoms in the Warring period. The third and the last one is the modernand contemporary.
Ancient norms
Perhaps it is not law in the modern category. That happened a clan society inthe city states. Upper class people had the same clan name and the network of city states
have formed kingdom. But we do not have enough evidences to know it by some
excavation of archaeological survey. And the kings of Shang or Zhou, represented lords
and people, prayed Heaven, Earth and their Ancestors. This was basic norm of ancientnorms.
Imperial period
Early Imperial Periods, that means Warring States period, though, warring
states were kingdoms, not empire. But king had mostly same power as Emperor. And
then, you know, Qin and Han Dynasty had come. Kings or Emperors enacted state law.
This is a primitive stage of Lü Ling system [律令制]. That was the primitive stages oflaw. Lü and Ling still were general nouns for law or regulation.
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And then, Three Kingdoms period. Jin Dynasty and the period of Northern andSouthern Courts (220–589). They formed the prototype of Lü Ling system. Lü had beena kind of a penal code of today. And Ling had been administrative code.
And then, Sui Dynasty and the first half of the Tang Dynasty (589–756). They
form the classics of the Lü Ling system and the system influenced other East Asian
countries including Japan.
And the second half of Tang, Period of Five Dynasties, and Song Dynasty(756–1279). They developed secondary codes. Lü and Ling were basic codes, and they
had secondary codes to adjust them to their own society.
Liao, Jin, Yuan and Western Xia. These are the dynasties of northern ethnic
groups (916–1368) and they made their legal norms by Chinese legal system and theirown rules or customs, but Yuan Dynasty did not have their Lü Ling code.
Ming and Qing Era (1368–1911). They had Lü as the basic code, and thesecondary code for adjusting Lü to society. How about Ling? There had been Ling foradministration in the early Ming era, but they abolished Ling as an administrative code,and made the encyclopedia or complete books on state system for administration. Qing
inherited this book system: huidian [会典] in Chinese or kaiten in Japanese.
Modern Chinese Law
The third and last legal system is modern Chinese law, which is the fruit ofreception or transplantation of modern Western law. The basic purpose is to keep
independence as an independent state. China touched the western legal system (1) astreaties after 1842, or after the Opium War; (2) international law in 1864 or 1865; and(3) the formation of Western legal system for equal treaties just in the last ten years ofQing dynasty. This is the mainstream of modern Chinese law.
The other system is that the system as the colonies or puppet government. For
example:Hong Kong
since 1843
Macau
since 1557
Taiwan1895–1945
Manchu-kuo
1931–1945
Contemporary Chinese law
That means the law of the People's Republic of China, but it has a prehistory:
The bases of Chinese Communist Party between 1927 and 1949 had their legal system.
That was just a review or survey of Chinese legal system.
1. Why need to study foreign law(s)?
Why is there a need to study foreign law for Japanese people? The first is for2

legislation or interpretation of law. For example, traditional Chinese law had been a
Japanese most important model between Asuka era (sixth century) and Meiji, or earlystage of Meiji until 1885. And then, Western laws [became a model] for Japan since theend of Edo era, especially in 1854. The second purpose of study foreign laws is for asolution of foreign affairs, especially diplomacy, business, and family. The third is forstudying a foreign society or kind of social sciences.
2. Chinese Law as a Contemporary Foreign law
For pre-modern Japanese elites, the study of the Chinese law was acontemporary law, not the history between Asuka era and Nara era. The Imperial Courtof Japan studied Sui-Tang Lü Ling system for forming Japanese ruling system. Since
Heian era to Muromachi era, the Imperial Court and the Shogunate (bakufu) studied LüLing system for interpretation of Japanese Lü Ling codes. The specialists were calledMyoboka in Japanese. One of the most representative persons is maybe Shotoku taishi(Prince Shotoku, or Prince Umayado:(574-622?)). This image is the old bill of the10000 yen. He studied the Chinese legal system, or political system, and tried to
introduce them to Japan.

Shotoku-taishi
In Edo era, Confucian scholars, as advisers for Shogun or Daimyo lords,
studied Chinese law, especially Ming-Qing legal system. And even in early days in
Meiji era, a government still used Japanese Lü Ling system and the books by Edo
Confucian scholars until 1885. In 1885, Japan established cabinet system, which was
not the old Chinese ancient one, but the modern British one. Since then Chinese legal
system had not been a model for Japanese legal system.
In Edo era, one of the most famous confusions who studied Chinese legal
system was Ogyu Sorai (1666–1728). Tokugawa Yoshimune had been the eighth
Shogun of Edo era and he ordered Ogyu Sorai and other scholars to study Chinese legalsystem.

3Ogyu Sorai

Tokugawa Yoshimune

Studying Chinese law for colonial government is another situation. Since 1895,
Japan studied customaries, made Customary Survey in Taiwan [ 台湾 旧 慣 調 査 ](1895–1945) and then began to make Customary Survey in South Manchuria [南満洲旧慣調査] (1905–1945). In these surveys, the most famous persons were Goto Shimpei(1857–1929) and Okamatsu Santato (1871–1921). Goto was a Secretary of Civil Affairsof the Taiwan Governorate and then he became President of the South Manchuria
Railway. Under his government, Okamatsu, who was a professor of Law Faculty, Kyoto
Imperial University was responsible for these two surveys. He graduated from theImperial University of Tokyo and is one of the legends here today. The left picture isGoto, and the right one is Okamatsu.

Goto Shimpei

Okamatsu Santaro

In 1930s and the 40s, besides colonial governance, there was for studies ofliving law or lebendes Recht in German by Eugen Ehrlich as an academic activity.
Customary Survey of Northern Chinese Rural Area [ 中 国 農 村 慣 行 調 査 ] hasestablished in 1940s under the Japanese army occupations.
3. Studies on Traditional Chinese Law in JapanThe year of 1911 is very important. In 1911, Nakada Kaoru came back from
Europe and became a professor at the Imperial University of Tokyo. Before him, thespecialists studied Chinese and Japanese legal history for Yusokukojitsu [有職故実],
which means the studies of government organizations, ceremonies, and the customs
4based on ancient precedents. They explained how to deal with the original history. Prof.
Nakada Kaoru, one of the most important legends, studied the legal history ascomparative studies of government or governance system, referring to culture throughhistorical materials and sources. And he had two major students: One is Ishii Ryosuke,
who studied the Japanese history, and the other is Niida Noboru, who studied Chinese
legal history.

Nakada Kaoru
Niida Noboru’s activity should be divided into two parts. The first is before
1945. Tentatively, I called it “Niida A.” He made proof studies. For example,Restoration work for lost text of Ling code in Tang, or Toreishui [唐令拾遺]. People
knew that Tang Dynasty had a basic code of Ling, but it had been lost. So he restored
the Ling code. Afterward, he made Studies on legal documents of Tang and Song [唐宋法律文書の研究]. And he had been a professor at this institute for Advanced Studies ofa on Asia, or Tobunken [東文研]. Niida after 1945. I called it “Niida B.” He started
theoretical studies, especially of materialism or kind of Marxist view.

Niida Noboru
He had two kinds of students, not official students but his followers. A studentof Niida A is Ikeda On (1931–). One of the representative works is Studies on Chinese
historical archives of family register [中国古代籍帳研究]. A student of Niida B is
Fukushima Masao (1906–1989). His works were Studies on People’s commune (ofChina) [人民公社の研究] and Studies on land tax reform (of Meiji Japan) [地租改正の研究].
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The picture below is Prof. Ikeda and, sorry, I do not have any picture of Prof.
Fukushima. They are also professors at the Tobunken.

Ikeda On
In addition, I should introduce Professor Shiga Shuzo (1921–2008). In 1943, hebecame a special research student at the Imperial University of Tokyo, which means that
he is also one of the legends of this university. What is special research student? The
system of special research student was just only one good thing done by Prime MinisterTojo Hideki administration in wartime. They enjoyed the privilege of exemption frommilitary service, so they could survive even in wartime.

Shiga Shuzo
His representative works are Principles of Chinese family law [中国家族法の原理], and Law and suite in Qing China [清代中国の法と裁判]. In other works, Codesand criminal punishment in Chinese legal history [中国法制史論集 法典と刑罰] andLaw and suite in Qing China vol.2 [続・清代中国の法と裁判].
He explained the Chinese legal principles by Western legal discourse andordinary Japanese words through historical archives. This method made Chinesenessstand out.
He has good students, who we can call them all legends. Nakamura Shigeo(1925–2012), Harro von Senger (1944–) from Switzerland, Morita Shigemitsu (1945–),
and Terada Hiroaki (1953–).
We go to the next section, “Study on modern Chinese law in Japan.”6

4. Studies on Modern Chinese Law in Japan
Modern Chinese law means the legal system between 1842 and 1949. In thosedays, they studied to Chinese law as contemporary law. The first group were thespecialists invited by Qing dynasty : Okada Asataro (1868–1936), Matsuoka Yoshimasa(1870–1939), Ogawa Shigejiro (1864–1925), and Shida Kotaro (1868–1951). They also
graduate from the University of Tokyo. Okada was a professor of criminal law andcriminal procedure law. Matsuoka was a Judge, and his specialty was civil law and thecivil procedure law. Ogawa worked for Ministry of Justice. Shida was a specialist ofcommercial law.
In 1930s and 40s, some scholars, especially professors at the University ofTokyo, formed Society for study of legal system in the Republic of China [中華民国法制研究会]. They were legends of law faculty or lawyers who were interested in andrespected the modern legal system of the newly built China. On the member list,Murakami Sadayoshi (1874–1940) and Otani Masakatsu (??–??), but I do not haveenough information on them. Wada Sei (1890–1963) was a historian. Miyazawa
Toshiyoshi (1899–1976) was a specialist on constitutional laws. Tanaka Jiro(1906–1982) was a specialist on administrative law. Wagatsuma Sakae (1897–1973),
Kawashima Takeyoshi (1906–1992), and Hirose Takefumi (1903–1970?) werespecialists on civil law. Tanaka Kotaro (1890–1974), Suzuki Takeo (1905–1955), andIshii Teruhisa (1906–1973) were specialists on commercial law. Kikui Tsunahiro(1899–1991) and Kaneko Hajime (1906–1973) were specialists on civil procedure code.
Ono Seiichiro (1891–1986) and Dando Shigemitsu (1913–2012) were specialists on thecriminal law and criminal procedure law. Egawa Hidefumi (1898–1966) was a specialist
on conflict of laws. They are legends not only in Chinese law but in Japanese legalsystem, so they are representatives of scholars on legal sciences.
I should refer to some collections of books and archives. Oki Kan’ichi(1881–1966) was a lawyer at Tianjin and Beijing (or Beiping) and he was a collector ofbooks and archives there. In Tobunken, we have Oki Collection (or Oki bunko). Niida
also collected a lot of books and archives in China, and it became Niida Collection (orNiida bunko) in Tobunken.
As historical studies, here is Shimada Masao (1915–2009). He also graduatedfrom University of Tokyo, studying traditional Chinese law and northern Asian law. He
worked for modern Chinese law as well. Shiga’s lecture at University of Tokyo also
included modern Chinese legal history.
5. Studies on Contemporary Chinese Law in Japan
This is the last part: studies on contemporary Chinese law in Japan, including
the bases of the Chinese Communist Party (1927–1949). The first stage is the gathering
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of information for diplomacy. And then the old generation, like Niiida and Fukushima,also studied a legal system of basss and the People's Republic of China, and they have astudent, Miyasaka Hiroshi. He is graduated from Waseda University and worked for
Senshu University. Both universities are in Tokyo region. I shouldn't forget Fukushima’sactivity in Waseda University between 1967 and 1971, after his retirement at Universityof Tokyo. That time was the first tide for people in Japan to be interested in China,
because of its restoration of lawful rights at the United Nations in 1971 and thenormalization of the diplomatic relations between China and Japan in 1972. People arestarting to be interested in China.
At that time, Fukushima had several students at Waseda University, including
Nishimura Kojiro (1942–), Nozawa Hideki (1948–), Toki Shigeru (1949–), and Kuniya
Satoshi (1953–). Surrounding Waseda University and the University of Tokyo, I shouldrefer to two scholars: Konoma Masamichi (1944–) and Tanaka Nobuyuki (1947–). In
Konoma’s case, his undergraduate and master courses were at Waseda and the doctor
course at University of Tokyo. He got a Doctor of Law at Hokkaido University. Tanaka
was an undergraduate student at Waseda and went to graduate school at the Tokyo
Metropolitan University. Afterward, he became associate professor and later professor at
University of Tokyo between 1991 and 2012. They are also legends of the Tokyoschool.
From the point of view of the constitution studies and socialist law. They
themselves are a kind of socialists and are interested in Chinese legal system. The firstexample is Haryu Seikichi (1927–). He had been a student of Kiyomiya Shiro, who wasa famous specialist on constitution at the Tohoku University. Haryu also graduated fromTohoku University, and then had been a researcher at Institute of Social Science at theUniversity of Tokyo. Later he worked for Tokyo Metropolitan University. The otherexample is Asai Atsushi (1931–2012), who had been a student of Suzuki Yasuzo,
another famous specialist on constitution at Aichi University. Asai had been an assistantprofessor at Institute of Social Science at University of Tokyo. Asai had been a part-timelecturer at the University of Tokyo. I joined his classes fortunately.
Today we saw some legends of Chinese legal studies. I introduced you a lot ofscholars in Tokyo school who studied Chinese law. If you're interested in them and canread Japanese, please take a look at a book in the reference.
Conclusion
I would like to summarize three approaches to Chinese law which Japanesescholars had. The first is toward an aspect as a contemporary law, including the practical
purpose for lawyers, officials, and advisors, as well as the academic purposes. Thesecond approach was a historical one. In the third one, the Japanese scholars have astyle of comparative studies with Western and Japanese law.
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Japanese scholars have studied the Chinese legal system as a most important
subject or a model. There remains, however, some blanks of the studies. They are futuretasks for Japanese scholars. The first one was comparative studies of East Asian law.
Japanese scholars never had a comparative view amongst China, Japan, Korea andVietnam.
The second blank is a “colonial legal system and then” in the case of Taiwan,
Hong Kong, or Macau. The third is studies on the imperial system, for example,
Mongolian Empire, or Turkic (not Turkish) Imperial system, the Tibet and Islamic legal
system in East Asia. So, Japanese scholars are facing these research blanks or lacks.
So that's all I prepared for today. Thank you very much.
October 22, 20209