"Until now" and "From now" in Legal History

Takeshi Mizubayashi
Chairman,  Board of Directors

       The Japan Legal History Association was formally established on November 23rd 1949, as an association through which researchers occupied with the various aspects of the history of law could congregate and inspire each other. The members' areas of specialization ranged over Japanese, Oriental and Occidental societies, from ancient to contemporary times. For some 55 years, the Association has continued to serve its purpose, and the membership, no more than a few dozen at the beginning, has now grown to approximately 460.
       The Association's activities have centered on the conferences -- where the members gather to report on their research and to discuss ideas --, and the publication of the Legal History Review (Hoseishi Kenkyu). The conferences, for the most part, have been held twice each year. The Legal History Review has been published annually since 1951, and vol. 53 has just appeared in print. The Review has not only contained scholarly articles contributed by current and past members, but also pieces providing a detailed overview of the state of a particular field of study, as well as reviews of important books and articles -- each volume contains several dozens of these reviews --, and a comprehensive bibliography containing books and articles in legal history that were published in the previous year. The bibliography is organized in accordance with the area and period dealt with in each work, and along with the other aspects enumerated above, it has been one of the distinctive features of the Review.
       Alongside the above two main lines of activity pursued by the Association as a whole, there are also the activities of the three areal divisions, i.e. the Tokyo division, the Kinki division in the area around Osaka (both of which were founded in 1950), and the Chubu division, founded in 1990, whose center is in Nagoya. Each division has continuously organized study group meetings several times a year on average. On the publication side, the Association has produced such books as Keibatsu to Kokka Kenryoku (Criminal Punishment and State Power)(Sobunsha, 1960), and --although the Association's name does not appear on the cover-- Kindaiho no Sai-teii (A Repositioning of Modern Law) (Sobunsha, 2001), the latter being a record of the symposium commemorating the Association's 50th anniversary.
       Moreover, in October 2002 the Association's website was created, and its maintenance has formed an important line of activity. Owing much to the members in charge of its inception, my impression is that it stands out among the websites held by various academic societies, and believe that users of the website would agree. It is possible to obtain information from the website concerning all aspects of the Association's activities that have been enumerated above. Moreover, such features as the table of contents for the Legal History Review, the bibliography on legal history, and the search function usable for all data within the website would be of much use to not only to members, but also to any person seeking bibliographical information related to legal history.
       "Legal History" is part of the broader field of "Historical" studies. Legal historians themselves naturally think of it as an important branch of historical studies, and endeavor in their pursuit of excellence as such. This notion, however, is not necessarily shared by the majority of historians in this country: if one takes a look at the composition of any of the frequently published collections of volumes dedicated to a broad topic in Japanese history, it is clear that essays dealing with the legal aspects of the topic in question are much fewer compared to those concerned with economic, political or social history. One reason for this state of affairs is perhaps that "law" itself is not given such a prominent position in the Japanese consciousness of today. In France, for instance, the 200th anniversary of the Napoleonic civil code -- perceived as the code providing the basis of "société civile" -- this year is being celebrated lavishly as a national event, giving rise to various ceremonies. In contrast, the 100th anniversary of the Japanese civil code in 1996 went almost unnoticed in this country, the sole exceptions being a handful of specialist publications. This lack of interest in law is an extremely important aspect of contemporary Japanese society, and to fully appreciate the historical roots of this current condition it would be necessary to take into account a comprehensive view of Japanese history in general, not confined to laws and legal institutions in the narrow sense. For the sake of a historical explanation of such an important characteristic of Japanese society as a whole, historical studies in general would do well to attach more importance to the problem of "law". It is my hope as a legal historian that our field will have more opportunities of collaboration with general history in the years to come.
       "Legal History" moreover, is a branch of "legal" studies. From the viewpoint of higher education, the teaching of legal history is done in the context of legal training, and usually not as part of the corpus taught in history departments. In that respect, it has to be said that as far as courses are organized in universities, legal history has a stronger emphasis on law than on history. The situation naturally brings us to the question of how legal history should connect with the practical legal studies involving the interpretation of codes, the latter being the core of legal studies in this country. This, nevertheless, is a question that has not been sufficiently explored in the course of this Association's activities over the years of its existence. Perhaps the only effort to take on this task head-on was the symposium in the conference of spring 2000, which dealt with "The Role of Historical Thinking in Legal Scholarship".
       The current situation, however, appears to be one where the legal historian will be compelled to consider such questions in earnest. Legal history, along with other subjects dealing with "the basic science of law" i.e. legal philosophy, legal sociology and comparative law, has been incorporated as part of the curriculum in the newly (April 2004) established graduate level law schools, dedicated to the training of professional lawyers. Under this new system, many legal historians will have to take part in the training of professional lawyers whether she/he likes it or not. Considering the fact that the kind of world where lawyers form part of daily life has only existed in the West in modern -- and classical -- times, it seems extremely important for the would-be Japanese lawyer to learn of the various different "legal" cultures that have existed throughout history, and thus see the current western-style legal world in relative terms. This should allow the student to objectively regard this world that already has the appearance of having always been there, now that more than 100 years have passed since the reception of western laws in the Meiji period. Moreover, for those students wishing to pursue careers as lawyers working in an international context, it would be essential to be acquainted with non-western legal cultures, and the teaching of legal history would be useful for this purpose as well. As such, the value of the scholarship in legal history, built up through the toil and effort of legal historians over generations, will by no means diminish: its prospects are much brighter than is commonly supposed.
       While in these respects the significance of legal history can only increase, there is also a new type of legal history that should become more and more important in the future. This is legal history in the sense of a discipline that actively concerns itself with the problems of the more practical dimensions of legal scholarship, and contributes to these fields by providing a historical perspective. The legal systems of classical antiquity and of the modern West, being the models on which our legal system directly bases itself, are not just objects of historical study. They are also material that have immediate relevance to the study of current practical problems, in which our own legal thinking is scrutinized and reflected upon. In this sense, legal history would have to draw closer to practical legal studies. This, in turn, will contribute to the training of lawyers with the insight and intellectual integrity that allows him, in the process of legal thinking, to pursue historical reflection in the academic context. F.C. von Savigny, the father of modern legal studies, may be named as one such lawyer. To increase the number of such lawyers, even by one, will be a worthwhile aim for the study of legal history.
       In the current age, without the straightforward principles that could be depended upon with confidence, it is becoming more and more difficult to clearly see the desirable course of thought and action in any context. Under these circumstances, many sectors of society tend to lose their sense of direction, and are easily led into thinking that the purpose of academic study is to instantly produce results that can be immediately applied to the problems at hand. On the contrary, the role of academic study should be to take full account of the tradition of scholarship that has been continued for thousands of years, and on that basis, embark upon the difficult task of identifying the most fundamental problems of humankind, and to pursue possible solutions that reach the very roots of these problems. Moreover, those engaging in academic study should endeavor to nourish the human resources that can take charge of such pursuits. It is my hope that legal history, as a branch of the world of such academic studies, will make what contributions it can to the realization of this ideal.
( June 2004)