Michiko Aoki analyzes Japan's historical ability to adopt foreign elements when faced with external pressures without relinquishing Japanese values. Drawing upon religious and political examples of outside invasion, Ms. Aoki argues that Japan has demonstrated pragmatic adaptability when encountering challenges from abroad.

Michiko Y. Aoki is a research fellow in the East Asian Legal Studies Program at Harvard Law School. She is also an associate professor at Clark University.

Since the advent of Japanese civilization, there has been a conflict between native values and external elements. This clash, however, has never led to the wholesale transformation of its basic values. Throughout its history Japan has demonstrated the ability to adopt foreign elements in order to cope with a given situation, whether spiritual, political, or legal. These adoptions, however, have always involved the acquisition of foreign elements in order to pacify outsiders without relinquishing Japanese values.

In order to understand the particular legal regime that has been established in Japan, one must address several historical developments and cultural concepts, including the notion of Japanese divinity, Japan's history of local powers, and the Japanese perception of law as an instrument imposed from above rather than rights that they are entitled to enjoy. Two aspects of Japanese culture serve as particularly effective examples: One is the history of the earliest development of the island chain and the conflict between the native cults and invading superior powers, while the second is the development of localism that created highly diversified attitudes toward legal institutions.

Contrary to what is generally believed, every Asian nation has a voluminous corpus of written laws. In the case of Japan, their origin can be traced to the seventh and eighth centuries, when the country chose to adopt Chinese notions of law and order. Several law codes were later compiled and revised until finally, in 701, what is now known as the Taiho Code (Taiho Ritsuryo) was promulgated. The original version of the Taiho Code was soon lost, but a revised edition was published in 718 as the Yoro Code (Yoro Ritsuryo). Due to the copious commentaries of the latter, which were compiled by an imperial order in 834, the contents of this ancient code are available for study today.

As the imperial court (which claimed to be a civil government) struggled to maintain control over local affairs, the code lost its enforceability. The class of warriors, or "samurai," who first appeared as functionaries of the imperial court for a designated time, became leaders of the farming community and protectors of the peasantry. Over time, the peasants' overlords eventually became the rulers of various local regions, and the effectiveness of the imperial court paled in the face of this earthly cadre. The subsequent millennium saw a large percentage of the code fall into disuse outside the region surrounding the capital city of Kyoto.

Despite the many shifts in power over the next millennium, however, this eighth-century code survived intact at least in the regions where patricians had preserved their economic base. When the imperial government was ultimately regained from the military Tokugawas in the mid-nineteenth century, it was this code that the new Meiji government (1868-1912) upheld as a legitimate tool of statecraft prior to the creation of modern laws.

The Development of Japanese Beliefs and Their Reaction to Invading Cultures

Reaction to Invading Cultures

The dispute over who first placed the Japanese islands under unified political control is a heated issue because it involves highly emotional national sentiments. However, Chinese documents suggest that when sojourners from the continent reached one of the islands at the beginning of the third century, none of the islands were subject to a unified political entity. Rather, multiple chiefdoms existed, each contesting for supremacy. Iron instruments were already in use, corroborating the existence of armed conflicts among them. Though the ethnic background of this early populace remains uncertain, examining their practices of conducting rituals, fighting battles, and burying the dead leads to the hypothesis that a minor chiefdom of this period was composed of multiple ethnic groups. Indeed, elements of Manchu, Turkish, Tungusic, Polynesian, Korean, Chinese, and Ainu seem to have existed in various regions.

In the period predating the time when the first Chinese travelers reached the island chain, many portions of the archipelago were inhabited by earlier settlers whose ethnic backgrounds are, again, difficult to ascertain. Those earlier settlers or native dwellers (the latter must have been small in number if they were present at all) were ill-equipped to compete successfully with the newcomers; they did not have the means to accumulate the necessary wealth to withstand the invaders' onslaught. One explanation may be that their population was nomadic, the hunting-and-gathering economy providing just enough to sustain them. At any rate, when the continental colonists arrived with superior tools and better means to produce foodstuffs, the earlier islanders could not present much armed resistance.

Instead, the islanders responded with a form of religious assault. The victors laid down laws governing the vanquished, but in response the islands' thaumaturge invoked the violent spirits of the native deities (kami), which visited untold calamities upon the newcomers, such as contagious diseases, prolonged rainfall, drought, famine and the like. These invocations continued until the victors agreed not to enforce their laws but to appoint the native soothsayers as clerics. Notably, at this point many of the clerics were women. Thus, while the islanders outwardly appeared to have succumbed to the militarily and organizationally superior newcomers, they exercised a formidable ability to defy the victors' rules and regulations through the power of their religious invocations. Indeed, the most effective weapons wielded by the vanquished were the wrathful spirits of their tutelary deities.

It is important to emphasize that the Japanese notion of divinity is dramatically different from that of the West. Although translated often as "gods," Japanese deities, or "kami" are not in any way related to the Western sense of God. Kami are the entities that possess much of this world, that is, human nature. In this belief, anyone who accomplishes meritorious deeds during his mortal life has the possibility of becoming a "kami." Thus there are "kami" of the Emperor Meiji, Admiral Togo, and General Nogi, whose spirits are reverently enshrined in designated precincts in the city of Tokyo and elsewhere. In general, the Japanese believe that their ancestors are endowed with this "kami" nature. A "kami" is endowed with two dichotomous personalities; one is gentle, the other violent. Either characteristic of the "kami" or spirit may be summoned to aid its supplicants.

When they surrendered to the superior power of the invading forces, the islanders accepted the outsiders' victory as temporary, as they were confident that their guardian deities would eventually retrieve their spiritual prerogative and temporal sovereignty. This method of preserving their inherent rights formed a basic pattern of behavior for the Japanese when they found themselves confronted with ostensibly superior powers. When they perceived a threat to their established way of life, they invoked their guardian deities' "violent" spirits to come to their aid. The Chinese sojourners' accounts describe how, in the mid-third century, island chieftains, in order to seek protection from angry kami, established a female thaumaturge as the queen of their loosely organized political union. It is very likely that the chieftains had been successful invaders and that the elected queen represented the prime upholder of the cult of the native islanders. Importation of Legal Notions

The foregoing argument may serve to illuminate the dynamics of the Japanese mentality in accepting foreign religions, philosophies, political systems, or technologies. A good example is the adoption by the Japanese imperial court of the political system of T'ang China in the late seventh and early eighth centuries. Legal codes were created based upon the model of Chinese penal and administrative laws. A governmental apparatus was established, and newly appointed governors were dispatched to the provinces near and far. The Chinese examination system was also adopted. Soon, however, the nation found that this imported political system was not functioning independently and that additional rules and regulations in the form of administrative procedures or guidelines needed to be created in order to cope with actual political and social developments. Security became lax, not only in the capital area but throughout the region. The warrior class, which had been a tiny group of servicemen recruited from the countryside to serve the imperial court for a designated time, gained prestige on the strength of their profession to defend the imperial capital (if only nominally) and their native villages. These locally-based samurai eventually amassed such power so that they superseded the central authority and established themselves as the virtual rulers of the land in question. Since they were not endowed with what was perceived as the proper qualifications for communicating with the supernatural, prerogatives which were reserved for the emperor/empress or tenno, the samurai alone could not convince the people to accept them as Japan's legitimate rulers.

The head of the warriors in the late twelfth century, Minamoto Yoritomo (1147-99), cognizant that the military might alone be unable to control the region, obtained the imperial blessing in the form of an appointment as the emperor's highest ranking general, or generalissimo. Thus the Kamakura Shogunate (1192-1334) began. The motivation propelling this development was the Japanese belief that the emperor is by definition the high priest of the native kami, i.e., the person who can communicate with the highest gods of the land, the ancestral deities of his clan. Notably, under the Meiji Restoration government in the late nineteenth century, these deities came to be recognized as the divine ancestors of all the citizens, an idea that logically rendered the emperor the sole recipient of everyone's loyalty.

The basic function of the emperor was (and still is) sacerdotal. His primary privilege and responsibility is to give offerings to the ancestral deities of Japan. In other words, his function is almost identical with that of the female thaumaturge, who brought a measure of cohesion to the feuding chieftains at the time the first Chinese travelers arrived at one of the islands in the archipelago. Subsequent military houses of the Ashikaga and the Tokugawa likewise obtained the title of shogun from the emperor. In all of these appointments, the military houses perceived the source of their legitimacy in ruling the land from their unique role as defenders of the ancient values of the archipelago.

Imported Religion versus Native Kami: A Concession Which Presupposes Mutation

As early as the fifth century, the Japanese were familiar with Buddhist doctrine and its emphasis on salvation in the afterlife. Since their native beliefs (later to be called Shinto) were rooted in the secular world and lacked the notion of salvation in an afterlife, Buddhist teachings appealed to the islanders - first to the aristocracy, then to the common people as well. We are told that the advent of Buddhist teachings elicited violent reactions from the native gods. According to Japanese historiography, the conflict with this new religion materialized in the form of natural disasters. But before long the native kami, or their priests, acceded to Buddha's gospel, resulting in the creation of the cosmic Sun Buddha (Dai Nichi), a peculiarly Japanese and syncretistic Buddha.

For more than a millennium, a great number of foreign religions percolated into Japan. . For instance, the notion of Yin-Yang cosmology and elements of Taoism are discernible in large segments of Japanese popular beliefs. Indefinable as it may be, it is a compound of these beliefs that formed the core of the Japanese creed. Either by accident or by mischief of history, Japan has escaped the phenomena of religious wars. Even when the rulers of Japan adopted Buddhism as a state religion, persecution of those who would not subscribe to it never took place. Instead, the native kami simply incorporated Buddhist teachings as a means of national cohesion. Similarly, despite the shogunate government's position that Confucianism lay at the core of its governing principles during the Tokugawa era, that philosophy did not effectively penetrate Japanese minds so as to alter their convictions about native kami. Christianity, which suffered severe persecution by the ruling shogunate in the late seventeenth century, altered its form of worship for survival. The result was what is called "kakure kirishitan" or "hidden Christians," whose practices are now nearly indistinguishable from that of Buddhists. In time the "gospel" of all these religious doctrines evolved into the uncritical, non-speculative nature of Japanese thinking. In this sense, being Japanese is synonymous with practicing the "Japanese way of kami," which applies to nearly every aspect of Japanese life. The foregoing observation brings us to the next subject: localization of legal authority.

Legacy of House Laws

Japan's imperial government, which ostensibly ruled the entire land under the Yoro Code, lost control over the countryside by the twelfth century. The local populace's trust was instead placed in regional leaders who amassed military might on the basis of economic power. While using imperial appointments to their advantage, the military families created laws of their own that would immediately result in control over their people. Thus came about a series of house laws, which usually consisted of simple provisions that were easy to understand and enforce. When the first shogunate at Kamakura collapsed in 1334, the imperial court ruled the country for a brief period. Yet the civil government of the imperial court failed to address the problems existent among the feuding barons with effective policies until the new military house of Ashikaga came to power and opened its "tent camp" (bakufu) in the capital city of Kyoto in 1338.

From that time to the seventeenth century, Japanese history witnessed a highly sophisticated yet brutal warrior culture, in which dying for one's master became a badge of honor. Japanese local barons fostered their own identities and ambitions by validating them in a code of war, in which survival of the fittest was the paramount principle. Their house laws were largely comparable to each other, yet reflected the necessity dictated by regional conditions to encourage local residents to express their particular habits in observing rules and regulations.

The house of Tokugawa, which eventually became ruler of the land, created a rigid caste system with a code of conduct for each class. Nonetheless, from its inception onwards, the Tokugawas could not rule the entire realm solely on their strength, either economic or political. Thus they resolved to maintain a delicate balance of power by manipulating the inherent animosity among the regional leaders. Each local domain lord (daimyo) was permitted to keep his territory autonomously. No Tokugawa laws or regulations were enforced on people other than their own. Thus, no universally applicable laws existed during this time. The result yielded a highly localized sense of loyalty towards each domain lord, whose prerogative permitted him to enforce his own rules and regulations. This absence of a universal rule of law continued until the mid-nineteenth century, when in the face of the Western threat Japan underwent a systematic program of modernization. If current members of Japanese society have mixed attitudes regarding laws and regulations, the seeds of ambivalence were likely sown during this period.

Modern Nation-Building: Japanese Law and Citizens' Attitudes Toward Law

It has been more than a century since Japan decided to modernize its institutions in 1868. This determination derived from Japan's desire to become compatible with the West while keeping its traditional values intact. The transformation was a difficult one, yet by the end of the 19th century Japan had compiled its first modern universal law code. During this time, the Japanese leaders' primary concern was the maintenance of peace and order in a new society, and the Western notion of a bill of rights was the last thing they wanted to give to the nation. Japanese leaders in the Meiji government did not want to change the social system whereby the rulers were able to control the populace for generations. Though the old laws were not universal but were drawn by individual domain lords whose primary motivation was to protect their own interests, they nonetheless succeeded in controlling their people.

From the outset of the Meiji government, the welfare of ordinary citizens did not command the leaders' serious attention. On the part of ordinary citizens, it did not occur to them to demand "rights" as long as their former domain lords looked after their material wants. The legacy of this practice remains apparent today in the Liberal Democratic Party's steady hold over the rural areas.

Following these observations, it may safely be said that what separates Japan from the West is not Japan's degree of willingness to resort to law, but Japan's attitude towards law itself. In the West, laws exist to ensure individual rights and the pursuit of happiness. In Japan (to a certain extent, this judgment could be applied to other Asian nations as well), laws are seen as necessary in order to maintain peace and harmony for the benefit of the social order. While the West believes in the adversarial system,. Japan utilizes the adversarial system minimally. This difference will persist as long as the Japanese legal system is derived from its cultural and historical background.

Problems Facing the Legal Profession in the 21st Century

In Japan today, an increasing number of people and corporations now appear in court to obtain redress for their complaints. The majority of issues are concerned with multinational business ventures, as well as problems arising from advance science and technology. The present challenge lies in recognizing the legacy of the old regime without hindering Japan's progress in the international arena of cooperation and competition.