Yukio Sakurai
yukio1887@gmail.com
* Member of the European Law Institute (Vienna), which researches laws and global governance studies.
This essay discusses Asian law systems in a historical context based on Ryuichi Nagao’s lectures (Nagao n/a) and proposes international cooperation of Asian law systems beyond diversity.
Standard of Civilization
In Asia, law system of the country is closely related to its modernization process of the country. We turn our focus first to Japan. In the 19th century, when imperialism dominated the world, countries of the world could be said to be divided into three categories from the perspective of international law, and this claim has been verified by the International Law Society in London. The three categories were “civilized,” “semi-civilized,” and “uncivilized.” This categorization is referred to as the “standard of civilization” in international law (Mälksoo 2017). Nowadays, these terms are considered inappropriate and discriminatory, but they were historically used in the 19th century. Civilized countries were defined then as sovereign states, semi-civilized countries as semi-sovereign states, and uncivilized groups as colonies. In this standard, European countries, including the Great Britain, were civilized while Japan was regarded as a semi-civilized country.
The legal principle that “a civilized nation people have the right to the application of civilized law anywhere in the world” was permeated throughout the world against the backdrop of the power of Western countries. Thus, civilized people cannot be subject to semi-civilized laws, including, for example in Japan, traditional trials without counsel, torture, prison gates and other brutal punishments. Consequently, Japan accepted the extraterritoriality of civilized people (i.e., application of English law outside English territory, for example in Japan) and was denied customs autonomy in bilateral treaties with foreign countries, such as the United States (1854/1858), the Netherlands, Russia, Britain, and France. The first non-European civilized nation who signed the treaty with European countries was the Ottoman Empire (1856).
The Last Period of Tokugawa Shogunate
In the 1850s and the 1860s, the Government of Japan was in the last period of the Tokugawa Shogunate, a Shogun (as a chief of samurais) ruling system of hereditary succession by the Tokugawa family, which had ruled Japan since 1603. One of the highlights of the Tokugawa Shogunate was the adoption of a closed-door policy against foreign countries between 1633 and 1854, except for authorized foreign trade with Dutch merchants at the designated place (called Dejima) in Nagasaki. Therefore, even high-ranking officers of the Tokugawa Shogunate had little knowledge of foreign countries, including modern law systems. They had no idea of international law when they signed the treaties. In fact, they recognized international law in conversation with Townsend Harris, an American consul-general, in 1857.
The Government of Japan then sent two young officers, Amane Nishi and Masamichi Tsuda, to the Netherlands to study modern law. They arrived at the Netherlands in the early summer of 1863, where they learned the Dutch language until 1865, visiting Professor Simon Fisseling’s home twice a week. They studied more five subjects—natural law (mainly civil law), international law, constitutional law, economics, and statistics—taking notes on these five lectures. On return to Japan, they became advisors to the Shogun, Yoshinobu Tokugawa, and published books on law, but these books had no impact due to the collapse of the Tokugawa Shogunate. Yoshinobu Tokugawa was the last Shogun; he voluntarily stepped down as the Shogun and pledged his loyalty to the Emperor in 1867. Then, the new Government of Japan was authorized as a sovereignty by the Emperor in 1868. The Emperor then moved from the Imperial Palace in Kyoto to that in Tokyo as former Tokugawa Shogunate Palace in 1869. The capital city of Japan became Tokyo.
The New Government of Japan after 1868
One of the priority agenda of Japanese leaders in the new Government of Japan was for Japan to be a civilized country as soon as possible. For this, modernization of Japan was strongly promoted. One of the essential foundations for the modernization was to establish a modern law system and adopt a parliamentary system.
In this regard, the mission of Japanese leaders headed by Tomomi Iwakura (“the Iwakura Mission”) made a round-the-world trip between November 1871 and September 1873 to research for a country or countries to model the modern Japan on. They visited a total of 12 countries, including the United States, Britain, France, Russia, Germany (ex. the Kingdom of Prussia), Austria, and Italy. The Iwakura Mission had an audience with the leaders of these countries. The Mission was composed of 150 Japanese officers who reported their diplomatic activities and observations to the Government of Japan. After the trip, the Mission leader Iwakura concluded that the modern Japan should be modeled after Germany as an emerging empire. This was because the Mission members were impressed by the Chancellor of the German Empire Otto von Bismarck and by the harmony between the Keizer and the Chancellor. They found in Germany a possible model of a future Empire of Japan.
This was one of reasons why Japan drafted the 1889 Constitution, the 1898 Civil Code, and other laws, which mainly borrow from German laws. Nagao notes that the reference to German laws as a legal model was well accepted by the Japanese leaders in part because they had learned the Dutch language to study Western sciences, and most Dutch scholars studied German sciences. In addition, the Government of Japan carefully adopted multiple modern systems as a portfolio, for example, railway/road traffic and mail systems from Britain, law, medical science, and army systems from Germany, engineering and shipbuilding from Scotland, and the bureaucrat system from France. For the modern laws, while the 1889 Constitution and the Civil Code borrowed mainly from German laws, Japan’s administrative laws borrowed from French laws. It can be assumed that the Japanese leaders had a policy not to rely on a single country because it might lead to a relationship between the rule and the ruled. Japanese leaders feared that Japan would become a colony of the great powers and thus made it a national policy to maintain independence at all costs.
After all, Japan established the modern law system to achieve modernization and be regarded as a civilized country. The Government of Japan achieved treaty revisions with the U.S., Britain, and others to resolve unequal treaties in 1911, with Japan becoming one of the imperial countries that ruled their neighboring countries such as Taiwan (1895) and the Korean peninsula (1910).
Thailand and Japan, and other Asian Countries
Thailand and Japan were the only Asian countries to be independent from the great powers while the other Asian countries became colonies under them. This indicates that Thailand and Japan had freedom to choose their law systems as independent countries while the other Asian countries had no choice but to accept the law systems of their ruling countries. Therefore, these law systems, which originated from the Western ruling powers, remain in Asian countries.
For example, India, Malaysia, Singapore, Hong Kong, Australia and New Zealand follow the English law system, Indonesia follows the Dutch law system, Viet Nam and its neighboring countries follow the French law system, Malaysia and Indonesia include elements of Islamic law, the Philippines follow the American law system, the Republic of Korea and Taiwan used to be under the influence of the Japanese law system but now use multiple law systems including the German law, and China uses multiple law systems including Japanese law. The Chinese law and court systems are under the control of the Chinese Communist Party. In addition, each Asian country has developed its own unique law system in the post-war and thus no Asian country’s current law system is exactly like the original one.
Current situations in Asian law systems are therefore complicated, and researchers find it challenging to understand the Asian law systems for all the different countries. Discussion of Asian laws is difficult due to the broad gaps in law systems between countries. The diversity of Asia is not limited to its law systems but also encompasses other areas such as politics, economics, social system, religion, ethics, and culture. This is one of the reasons why there is no unified regional organization for Asia like the European Union or the Council of Europe.
International Cooperation beyond Diversity of Asian Law Systems
Legal Technical Assistance
The Ministry of Justice of Japan (the International Cooperation Department), in collaboration with relevant institutions such as Japan International Cooperation Agency (JICA) and universities, provides legal technical assistance to Asian countries as part of its international cooperation activities. The Ministry provides legal assistance in the drafting and amendment of basic laws, improvement of legal and judicial systems, and capacity-building of legal professionals (Ministry of Justice of Japan n/a). Some literature surveys on Asian law systems are available on some websites and booklets although these do not perfectly cover Asia (Antons 2003; IDE-JETRO n/a; University of Melbourne n/a).
Countermeasures to an Ageing Population in Asia
One common issue in Asia is the ageing population, which is projected in the United Nations’ “World Population Ageing 2019.” Responding to an ageing population can stabilize the domestic civilian sector, which is an important factor in national governance. In fact, regarding the domestic civilian sector, every Asian country/area is worried about its ageing population. For example, the proportion of Japan’s population aged at least 65 was 29.1% in September 2022. It is expected to rise to 38.4% by 2065. Thus, Japan has become a super-aged society, and the population continues to age even more. In China, the population of the elderly aged at least 65 was estimated at 191 million in 2020 (the proportion of the total population of China was 13.5%); this is projected to reach 247 million by 2030 (16.9%) and 366 million by 2050 (26.1%). In Singapore, the proportion of citizens aged 65 and above increased to 18.4% in 2022; by 2030, around 1 in 4 citizens (23.8%) will be aged 65 and above.
Considering such demographic projections, it is worthwhile to promote international cooperation in Asia. A project focused on this aim may be tentatively called the “Japan Program for the Wellbeing of the Ageing Populations (JPWAP)” and comprise of four parts, namely, (1) “Cooperation in Legislation and Policymaking,” (2) “Cooperation in Healthcare and Aged Care for the Elderly,” (3) “Cooperation in Community Business Activities for the Elderly,” and (4) “Cooperation in Elderly Education in Schools and Communities.” By setting up online training platforms and establishing relay training centers in the ASEAN (Association of Southeast Nations) countries, such as Singapore, it will be possible to expand international cooperation using the regional training centers as hubs (Sakurai 2019) to improve human security and minimize the diversity of Asian law systems.
Conclusion
Asia’s diversity can be seen in the law systems of its constituent countries, which were created from historical reasons. Asian countries may cooperate with one another to tackle common issues such as ageing population. The international cooperation will create trust through interdependence and may even minimize the diversity of Asian law systems.
References
Antons, C. (2003) Legal Culture and History of Law in Asia. In book: Christopher Heath (ed), Intellectual Property Law in Asia, Chapter: 2 (London: Kluwer Law International) 13-35.
Institute of developing Economy and Japan External Trade Organization (IDE-JETRO), (2002) Asian Law Series No. 23: Doing Legal Research in Asian Countries China, India, Malaysia, Philippines, Thailand, Vietnam. https://www.ide.go.jp/English/Publish/Reports/Als/23.html.
Japan Center for Historical Records, (n/a) The Iwakura Mission. https://www.jacar.go.jp/english/iwakura_en/.
Mälksoo, L. (2017). Sources of International Law in the 19th Century In book: d’Aspremont, J. and S. Besson (eds), The Oxford Handbook on the Sources of International Law (Publisher: OUP) 1-21.
Ministry of Justice of Japan, (n/a) International Cooperation Department https://www.moj.go.jp/EN/housouken/houso_icd.html.
Nagao, R. (n/a) Blog [in Japanese] http://ouranos2.web.fc2.com/1C_2FOLDER.html.
Sakurai, Y. (2019) Cooperation among International Cities to Advance Global Concerns about the Ageing: A possible Cooperation among Tokyo, Singapore and Istanbul. The International Journal of Aging & Social Change 9(3) 13-24.
University of Melbourne, (n/a) Southeast Asian Region Countries Law. https://unimelb.libguides.com/asianlaw.
