ABSTRACT

T HE difference between Old Japan and New Japan is quite clearly evident when one comes to the study of law and jurispru-

dence. It would be very misleading to affirm that the administration of justice was a farce ; and yet socalled legal decisions were tdo often arbitrary and tyrannical. The feudal lords were too much inclined to visit summary and cruel punishment on slight pretext; and altogether too few were the men like Ooka, the justice and wisdom of whose decisions won for him the title of "Japanese Solomon." As a matter of fact, there was in Old Japan, as Wigmore has abundantly shown,1 "a legal system, a body of clear and consistent rules, a collection of statutes and of binding precedents." The chief characteristics of

Japanese justice under the old regime, as indicated by Wigmore, were the following: (1) Making justice "personal, not impersonal," by balancing " the benefits and disadvantages of a given course, not for all time in a fixed rule, but anew in each instance," and thus "to sacrifice legal principle to present expediency "; (2) the feudal spirit, especially in criminal law, as illustrated by the use of torture, humiliating forms of procedure, and awfully severe punishments; and (3) the attainment of justice, " not so much by the aid of the law as by mutual consent," by means of definite customs, applied, however, " through arbitration and concession,'' so that there was "a universal resort to arbitration and compromise as a primary means of settling disputes," and only a dernier ressort to the process of law. These characteristics should be noticed, not merely on account of their historical value, but in explanation of certain traits still prominent even in New Japan.