Page:The Green Bag (1889–1914), Volume 19.pdf/275

 THE GREEN BAG was no longer an accredited messenger through whom God could promulgate His wishes and commands for the guidance of the Muslims. The Divine Book and the precepts and prece dents of the Prophet were closed, though they were still accessible for reference and instruction. If a text of the Qur'an or pro nouncement of the Prophet covered a point, there was no difficulty; or, if the Prophet had decided a similar case, the decision was no doubt a binding precedent to follow. But not merely fresh facts but entirely new cir cumstances arose, for which no provision had been made, especially as the affairs of the community became more complex with the growth of the empire. In the absence of authority the Companions had to guide themselves by the light of their reason, hav ing in regard those usages ('urf) of the com munity which had not been condemned by the Prophet. Those who were associated with the Prophet as. his companions and often shared his counsels must have known, as if by instinct, the policy of Islamic law, and whether a particular rule or decision was in harmony with its principles. It is presumed therefore that an agreement among the Sahabah in a particular view, vouched -for its soundness and such agreement (ijma') has been treated as an independent source of law next only to the Qur'an and the Hadfth. The first and the most momentous problem that the community had to solve on the Proph et's death was that of finding a successor to him as the head of the Mohammedan com monwealth. Over this question the Mo hammedan world has since then divided itself into two hostile factions, the Shi'ahs who assert that the Imamate or Caliphate should have continued in the family of the Prophet, and the rest of the Mohammedan bodies who support the right of the community (Jama'ah) to elect the chief." JURISPRUDENCE (Japan). Japan's rapid rise to a position of influence in world affairs naturally calls the attention of students of jurisprudence to its laws. In the Law Quar terly Review for January, Munroe Smith writes at length on " The Japanese Code and the Family " (V. xxiii, p. 44). In clearing the ground for his special subject he gives the following summary of Japan's legal history:

"The great periods recognized by Japanese legal historians are: (1) the period of indi genous civilization, which terminated with the reception of Chinese ideas and institutions in the seventh century of our era; (2) the period in which Chinese culture remained dominant, which closed with the year 1868; and (3) the present period of occidental influence. A sub division of the second period is made at the close of the twelfth century, when the feudal system was fairly established. Until the third period law was not clearly differentiated from social ethics; until 1868, indeed, there was no word in the Japanese language that expressed the idea of a legal right, a fact which indicates that social relations were viewed exclusively from the side of duty. Moreover, the so-called laws of the emperors and of the feudal princes were not addressed to the people; they were kept secret from the people. They were instructions addressed to subordinate officials. Those which touched upon what we should regard as legal relations contained, of course, what we should call legal rules: i.e. they set forth the principles accord ing to which justice was to be administered in controverted cases. In the second part of the second period, from the close of the twelfth century until the latter part of the nineteenth century, the feudal principalities were inde pendent in legislation and in adjudication, and the development of law and custom was, as in the European middle ages, particular istic. In 1867 Japan had as many divergent laws and customs as existed in France or in Germany a century earlier. The written laws of some three hundred principalities were modified by local customs of even more re stricted validity, and across the territorial laws and customs there ran, as in continental Europe down to the French Revolution, welldefined class distinctions. "Since the re-establishment of the imperial supremacy in 1868 a common national law has been established. This result has been at tained not by the gradual development of a settled practice in central courts of last resort, as in imperial Rome and in Norman England, but by the more rapid process of legislation, as in modern continental Europe. The Jap anese imperial legislation of the closing decades of the nineteenth century, culminating in the