► JAPAN - A LEGAL HISTORY is set out in five parts as follows: Japan: A Legal History, Part 1; Japan: A Legal History, Part 2 (below); Japan: A Legal History, Part 3; Japan: A Legal History, Part 4; and Japan: A Legal History, Part 5 and References.

THE 17 ARTICLE CONSTITUTION

When the Soga clan took power in about 587 as a result of a disputed succession, they replaced Shintoism with the religions from China: Confucianism and, just arriving in Japan, Buddhism. The Soga family had finessed its way into the Emperor’s menagerie and had become the preferred source for empresses; the official, imperial in-laws.

One of the first Soga leaders, Prince Shôtoku Taisha, in about 604, published his 17 Article Constitution, a prime example of religion and law blended together, and in the classic Asian law form of Confucian military-style rules of conduct (see 604: The 17 Article Constitution for more the content of and more detail on this historic document).

In addition, in the "common law" of Japan, according to Japanese delegates to the Chinese court in 607 as recorded by the Chinese, there were three crimes in Japan punishable by death: murder, arson and adultery.

This marked the introduction of a written Chinese moralistic law code into Japanese legal history. These codes became known as ritsuryô; ritsu for  the penal law or criminal code component; and ryô for civil or administrative law.

The influence of China also arrived within Japan's legal history and it would color the next many centuries.

Fujiwara KamatariThe Soga clan was deposed in about 645 in a coup d’état orchestrated by Fujiwara Kamatari, (614-669; note the Japanese custom to put the surname first).

TAIKA REFORMS

The new regime wanted new laws as the scholars from China advised: harsh moralistic codes of laws made for order.

A central government, to be run by the Emperor, was declared but as a figurehead of state only. The Japanese, almost from the start, revered their emperor and when governments were deposed, the emperor may be killed but then one of his descendants quickly sworn-in, to keep the line from Jimmu intact. But perhaps the biggest influences in Japanese law were the peaceful national religions of Confucianism and Buddhism.

This was more than mere words: a quick process of weeding out religion from state began. This was a daring, comprehensive political reform. The capital was moved to Osaka (then called Naniwa) and, later, just north, to Kyoto.

To consolidate their tax base, and imitating the Chinese, a census was undertaken and all land was surveyed and confiscated and held in the name of the state, as the Tang Code had done in China. A loose parliament was created of the local governors, called Hassho-Hyakkan.

All weapons were ordered to be held in central arsenals – to own a weapon was an offence. So peaceful had Japanese society become that a 16-year old boy was named chief of police of Kyoto.

The changes also had a basis in law. The laws and edicts of the Fujiwara Kamatari regime became known as the Taika Reforms (also known as Daika Reforms) which occurred between 646 and 666 (see, also, Fujiwara Katamari, 614-669).

One innovation of the Taika edicts, and based on Chinese precedent was a public box where complaints could be deposited. The emperor had a network of regional governors called Tomo no Miyakko, chosen on merit and not birthright:

"If there be a complainant, in case the person in question belongs to a Tomo no Miyakko let the Tomo no Miyakko first make inquiry and then report to Us. In case the person in question has an elder, let the elder first make inquiry and then report to Us. If, however, the Tomo no Miyakko or the elder does not come to a clear decision respecting the complaint, let a document be received and placed in the box, and punishment will be inflicted according to the offence. The person who receives the document should at dawn take it and make report to the Inner Palace, when We will mark on it the year and month, and communicate it to the Ministers. In case there is any neglect to decide it, or if there are malpractices on the part of intriguing persons, let the complainant strike the bell. This is why the bell is hung and box provided in the Court. Let the people of the Empire know and appreciate our intention.

“Moreover, the law of men and women shall be that the children born of a free man and a free woman shall belong to the father: if a free man takes to wife a slave woman, her children shall belong to the mother: if a free woman marries a slave man, the children of the marriage shall belong to the father; if they are slaves of two houses, the children shall belong to the mother. The children of temple serfs shall follow the rule for freemen. But in regard to others who become slaves, they shall be treated according to the rule for slaves. Publish this well to the people as a beginning of regulations."

But as much as the new government had disliked Shotoku and his descendants’ adoption of Chinese models of government and law, the attraction of Chinese laws proved too great. Immigrants from China had always arrived in a steady stream bringing with them a language, a system of bureaucracy, irrigation techniques, religion, technology, good manners and law codes, especially the Tang Code of 624.

► JAPAN - A LEGAL HISTORY is set out in five parts as follows: Japan: A Legal History, Part 1; Japan: A Legal History, Part 2 (above); Japan: A Legal History, Part 3; Japan: A Legal History, Part 4; and Japan: A Legal History, Part 5 and References.