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 The Legal System of Old 'Japan.

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THE LEGAL SYSTEM OF OLD JAPAN. By Prof. John H. Wigmore. L IN Puchta's " Outline of the Science of ceeded in creating a special type of justice. Right " occur the following passages : This tendency of theirs is so strong that English Equity, the one great effort to coun "The relationships of Rights are the relations teract it, has become in the end identical in of one man to another, and may be called legal these respects with the whole system. But relations. But the various human relationships do there are peoples to whom this type of jus not enter, in their full extent, into the sphere of tice is utterly alien. Even on the Continent Right, because the legal notion of a person rests this impersonalization (if we may so call it) upon an abstraction and does not embrace the of justice has never reached such an extreme. whole being of man. There must, therefore, oc cur much modification and subtraction before we For example, the French Civil Code has a "eUlai de grdce" which the court may ac reach the special relations which alone are in cord to a debtor whose misfortunes render volved in the idea of a Right. Thus, suppose a inequitable the immediate enforcement of a man has arisen from a protracted illness, and in order to pay the bill of his physician, to provide claim in its entirety (though even this has for the urgent wants of his family, due to his re been abandoned in the new Italian Code). cent incapacity, and to procure the means of be But it is in Japan that we may find the ginning business again, he goes to a well-disposed extreme antithesis to the Anglo-Saxon con neighbor, whom he has helped in former times, ception of justice. Whether there is or not and obtains a loan at the usual rate. How much any practical lesson for us in studying this of all this must we not leave out in order to ascer opposite type, is a question which we need tain the purely jural relation between the parties! not here take up. However this may be, Compare with this the case of the rich man who the chief characteristic of Japanese justice, raises capital merely to add to his possessions by as distinguished from our own, may be said a new speculation, and consider the effort of ab to be this tendency to consider all the cir straction which is required in order to assimilate cumstances of individual cases, to confide the resulting legal relations. And yet the legal the relaxation of principles to judicial dis relations in these two cases are identical." cretion, to balance the benefits and disad For the Anglo-Saxon lawyer, accustomed vantages of a given course, not for all time as no other is to do homage to strict legal in a fixed rule, but anew in each instance, — principle, as in and for itself the summum in short, to make justice personal, not im bonum of law, and to regard legal justice as personal. It would not be fair to infer from manifesting itself only in a science of unbend this that the courts of old Japan could have ing rules, this quotation will indicate better been no better than the tents of an Arab than anything else, the vast gulf that is fixed Sheikh, where justice came roughly and between his own system and that which was speedily, and the good sense of the tribunal indigenous to Japan. By making general was the only measure of equity. On the izations into hard-and-fast rules, by strictly contrary, there was in Japan a legal system, eliminating in individual cases a variety of a body of clear and consistent rules, a col important moral considerations (much as lection of statutes and of binding prece certain English economists worked out their dents. But whether it be or not a mere science with respect only to the wealth-ac mark of primitive legal development, there quiring motive), the Anglo-Saxons have suc was always the disposition to take, as Pucht?