Sources of Law.pdf

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DATE DOWNLOADED: Thu Sep 7 10:10:55 2023 SOURCE: Content Downloaded from HeinOnline Citations: Please note: citations are provided as a general guideline. Users should consult their preferred citation format's style manual for proper citation formatting. Bluebook 21st ed. Joseph Ernest De Becker. Elements of Japanese Law (1916). ALWD 7th ed. De Becker, Joseph Ernest. Elements of Japanese L (1916). APA 7th ed. De Becker, J. (1916). Elements of Japanese Law. Tokyo, the Asiatic Society of Japan. Chicago 17th ed. De Becker Joseph Ernest. Elements of Japanese Law. Tokyo, the Asiatic Society of Japan. McGill Guide 9th ed. Joseph Ernest De Becker, Elements of Japanese L (Tokyo: the Asiatic Society of Japan., 1916) AGLC 4th ed. Joseph Ernest De Becker, Elements of Japanese Law (the Asiatic Society of Japan., 1916 MLA 9th ed. De Becker, Joseph Ernest. Elements of Japanese Law. Tokyo, the Asiatic Society of Japan. HeinOnline. OSCOLA 4th ed. De Becker, Joseph Ernest. Elements of Japanese Law. Tokyo, the Asiatic Society of Japan. Please note: citations are provided as a general guideline. Users should consult their preferred citation format's style manual for proper citation formatting. -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text.  SOURCES OF LAW. CHAPTER 10. SOURCES OF LAW. The term " sources of law " (hbri/sun o eng-en) refers to and denotes the materials on which law is based. The term is employed in various senses. It is sometimes employed in the sense of whence law has originated, some saying that it originated from the will of God, others that it originated from the will of the sovereign, or that it originated from the combined will of the people. It is sometimes used in the sense of the cause of legal relations, it being held that contracts, unlawful acts (torts), unjust enrichment, etc. are sources of law. But these are rea!ly the causes of legal relations aud not sources of law. Legal relations are protected as such only after law was come into actual existence, and it is obviously and logically wrong to consider relations which come into existence subsequent to lav as sources of law. There are others who employ the term in the sense of the source of knowledge of law (as the works of legal writers). But in this connection, we employ the phrase source of law " in the sense of the materials on which law is based. The sources of law may be classified into the following seven classes. SECTION 1. CUSTONr. "Custom" (kwans/Ti) is a standard of action which has long been observed and acted on by the people. The point which requires special attention in this connection is the differ- ence between custom aud customary law (kwanshhf-hi). So long as it does not become law, custom remains merely custon. Custom becomes customary law only after it has acquired the force of law. Custom, tkereforv, is a sourcc of law; but cus- tonlaij' lazw is not: it is altlier la-, itself. But customary law  SOURCES OF LA\V may be a sourcc of writen law. Custons may be classified as follows :- i. General and local cnsloms.- General customs are those which are operative throughout the country, while local customs are those which prevail in certain localities only. In ancient days, when intercourse was hampered by many obstacles and hindrances, there were very few general customs, but a large number of local customs. 2. Common and special customs. -Common customs arc those prevailing among all classes of men, while special customs are those observed among persons of a certain status, position or profession only. Commercial customs, for example, are special customs, because they are customs only observed among traders. 3. 1Vil/en and unwritcn customs.-Custom does not become law because it is put on record. Written customs are customs merely reduced to writing, as the Sacsenspiegel-of Germany. In order that they may become law, it is always necessary that steps should be adopted for conferring the force of law on them. From what has been so far said, it will be clear that custom is not law ; but it is no easy matter to say when custom becomes customary law. The following are some of the various theories which exist with reference to this question :- (i) WhI7leen it is believed in by people.-According to this theory, custom becomes customary law, when people have come to do as by law what they have so far done by *custom ; and it is based on the theory that law is derived from the combined will of the people. This view therefore is incorrect, if the notion that law is derived from the combined will of the people is erroneous. Besides, how is it to be determined whether a certain custom is popularly believed in as if- it were law? and, if so, when has it come to be so believed in ? In short, the theory is surrounded with ambiguity in all respects. (2) W/hen it is recognized by /Me Sovcriezf'n.-This means that custom becomcs customary law, when the sovereign in,-  SOURCES OF LAW. pliedly recognises custom and confers the force of law upon it. When custom is expressly recognized by the sovereign, it be- comes, not customary, but written law. So, recognition in this case must be an implied one; but being an implied one, it is not always easy to determine when recognition has been given. This is the drawback of the theory under consideration. (3) When it has long continued in practice.-According to this theory, custom becomes customary law when it has been long in vogue. But it may be asked, how long it is necessary for custom to have continued in practice in order for it to be considered as customary law ? Besides, it is not easy to deter- mine at what time the given custom first originated. All this difficulty makes the view far from being sound. (4) When it is recognized by a Court.-According to this, when an action has been brought by one person against another in regard to a certain custom, and the Court has re- cognized it as law, it then acquires the effect of law. Many English jurists are of this opinion. But to allow such a thing to be done would be tantamount to investing judges with legislative power, and it is to be apprehended that this might sometimes result in their making law of what really is not even custom. (5) When certain conditions are fulflled.-According to this theory, the conditions on which custom becomes customary law are to be legally determined; and a custom is to become law, when it fulfils such conditions. The drawback of this theory is that the conditions in question are differently fixed in different ages, in different countries, and by different persons. In Eng- land, they are fixed as follows: - i. That it is of immemorial antiquity 2. That it has been continuous; 3. That'there is neither doubt nor dispute about the fact of its being in practice 4. That it is definite ; 5. That it has obligatory force; 6. That it is reasonable ;  SOURCE$ bF LAW. 7. That it does not conflict with law or other customary law. In England, however,.these conditions have not been fixed by law but by precedent. According to Dernburg, the German jurist, the conditions should be as follows i. That it is to be thc same act ; 2. That it must be a custom of many years' standing; 3. That it must be a legal custom; 4. That it does not matter whether it be a custom among individuals or among associations of individuals ; 5. That it is not contrary to good manners and customs and sound reason. In ancient times, customary law was considered to be as complete and effective as written law, so that written law could be altered:by customary law. But in modern times, it is generally held that written law cannot be altered or repealed by customary law, because written law has been made by the State in order to determine the rights and duties of individuals, while customary law derives its force from the opinion of the judge ; and it is to be apprehended that should alteration or repeal of written law by customary law be permitted, the rights and duties of indivi- duals might be entirely at the mercy of the judge (in reference vide Section 2 of the preceding Chapter). The next question which presents itself in this connection is whether the judge is bound to be acquainted with customary law ?. The judge is, of course, bound to be acquainted with the law of his country. Is he, then, bound to be acquainted.with customary law also ? Puchta says: "The judge is bound to have a knowledge of the law. Customary law, too, is law. Thereforce, the judge must investigate customary law, when it is not clear in connection with the trial of cases." Art. 265 of the German Code of Civil Procedure, however, embodies an opposite opinion, for it provides that the judge is entitled to inves- tigate customary law cx e/icio ; but if he is not acquainted with the customary law, the party concerned is then bound to prove it. Of course, it is entirely at tle option of the judge whether  SOURCES OF LAW. he will accept as customary law what is alleged by the party to be such. It would. appear that the opinion of Puchta is eminently reasonable, and that whereas customary law is likewise " law," it is incumbent on the judge to be 'acquainted with it quite as much as with written law. In view of the provisions of Art. 2 of the Japanese Law Conccrning the Application of Laws in General (which run to the effect that customs which are not contrary to public order or to good morals have the same force as law in so far as they are recognized by the provisions of laws And ordinances, or relate to matters which are not provided for by laws or ordinances), it is clear that there are customs whiclr have the same effect as law-in short, virtually are law ; and it follows, as a matter of course, that it is necessary for the judge to possess a knowledge of such customs. In the present state of things in Japan, it is clear that custom cannot supersede written law; and there is'absolutely no room for the question of whether customs can alter or repeal laws in the narrower sense-that is, laws which have been made- with the approval of the Diet. SECTION 2. THEORIES. Theories (gakuselsu) are the opinions ofjurists on points of law. For the purpose of pointing out that there are unlaw- ful provisions in the law, or of discussing the advantages and dis- advantages of a given law, there are many cases where jurists give expression to their opinion and assist in remedying the defects in the law or in its interpretation. It is in this manner that theories become a source of law. The state or legislators employ the opinions of jurists merely for their guidance. It is not that theories as such become law. In order that theories may acquire the force of law, it is always essential that such force should be conferred on them by the power of the state. %  SOURCE8 OF LAW'. Theories may become a source of law either directly or indirectly. For example, Theodosius II. of Rome gave the force of law to the theories of Papinianus, Paulus, Gaius, Ulpianus and Modestinus-the great legal authorities of his day, while Justinian collected the opinions of thirty-nine great lawyers into the Digest and gave them the force of law-cases where theories were a direct source of law. In modern times, how- ever, there does not seem to have been a single instance in which the theories of jurists have been directly turned into law : it-has always been indirectly that they have become a source -oflaw. They serve as a guidance for the benefit of legislators, as: they' always did and will do. SECTION 3. REASON. ,Reason" (ibri), that is, the nature of things, is.:term which is equivalent to "righteousness" or " justice." As " already mentioned, the " Rules for t/le Conduct of Judicial Affairs (1875) contained a provision to the effect that customs should be followed when there was no written law; or reasonif there was no custom. In the laws of certain countries, it ispro- vided that where there is no express provision of the law, natural law shall be followed. Natural law in this connection denotes the same thing as reason. Though reason or natural law is an exceedingly indefinite and vague thing, it has been found necessary that there should be some such provision as mentioned above, because the judge would otherwise be obliged to refuse to render.ajudgment on the ground that. there was no express provision on which he could act. So far, we have dwelt on how necessary it is for the judge to conform to reason in matters relative to which neither express provisions nor custom exist.. It goes almost without saying that in making law, too, it is essential to follow the guidance. of reason above everything else.  SOURCES OF LAV. SECTION 4. TREATIES. A treaty (j3yaku) is a written contract between one state and another ; but when one country concludes a treaty with another, it is not incumbent on her people forthwith to obey the terms of such treaty. A treaty being a contract between states, only the contracting powers themselves are bound by it; but should the people of the contracting powers fail to conform to the terms of the treaty, because it is binding on the states only, it would be impossible for such powers to perform their contractual obliga- tions. For this reason, when a state concludes a treaty with another, such state promulgates it within the borders of her teri- tories. It is quite indifferent whether it is promulgated as a law or ordinance or as a treaty : this is a matter to be decided according to the formal principles adopted by the municipal law of each country. But when a treaty is once promulgated in the appointed form, the people are then bound to conform to its terms. In this case, however, they are not bound directly by the engagement existing between their country and the other contracting state, but by a law which has been derived from another source of law-namely, treaty. SECTION 5. JUDICIAL PRECEDENTS. A "judicial precedent " (/anketsu-rei) is a judgment which the judge has, in a certain case, pronounced vis-A-vis the parties concerned. Though, in rendering judgments, the judge is always bound to act according to the law, yet when there is no express legal provision bearing on the question, he must adjudicate upon the case according to custom or reason. Society progresses; and laws which are fixed once for all like those of the " Medes and the Persians " are often found inadequate to meet the re- quirements of the ever changing state of affairs. Moreover, no law is absolutely perfect and free from defect. Though nowa-  SOtRCES OF LAW. days, in most countries, elaborate codes of law are prepared and minute provisions made governing rights and duties, yet defects and flaws creep in which are taken advantage of by the cunning for the purpose of committing improper acts, or which leave people in a quandary as to how to act. It is thus that a collec- tion of judgments rendered by the court in regard to matters as to which there are no express provisions in law-that is, judical precedents -become a source of law to be made later on. Though law is binding on the judge, yet judical precedents do not bind the judge in Japan. In most cases, the Japanese judge conforms to precedents; but when precedents are contrary to principles of law or reason, it is not necessary that they should be followed. The judge is not bound by precedents not only when such precedents have been given by courts of a lower or the same grade, but even when they have been given by superior courts; subject only to the limitation that the doctrine laid down by the Supreme Court on a point of law in a judgment in a given case binds the courts of lower grades in all matters relating to that special case (in reference vide "Judicial Interpretation " in Chapter 8). In England and America, a principle diametrically opposite to the above is acted upon, the judge being bound by precedents, and inferior courts must act on precedents furnished by superior courts. It is highly desir- able that there should'ibe uniformity in judgments, because if the courts of one and the same country render different judg- ments in cases of the same nature, it is sure to have the effect of hindering the uniform exercise of the judicial power of the State, undermining the authority of the courts and the judges, and rendering the rights and property of individuals insecure. SECTION 6. RELIGION. In days when the duties of worship and government were committed to the same hands, religion (shiik)o)was regarded as 62 SOURCES QF LAW,. the same thing as government (seii), and it was also regarded in the same light as law, because the belief obtained that law was derived from the will of God. In those days, the State was governed by religion ; and religion was, as a matter of course, the source of law, asthe Code of Lycurgus in Greece, the law of Mohamet in Arabia, the Institutes of Manu in India, the law of Moses in' Judea. Though, in recent times, religion seldom affords a source of law, yet there are traces of the old usage of law being derived from religion. For example, the reason why divorce was forbidden in France up to 1885, and is forbidden in Spain and Portugal, etc. even now, is partly (at least) to be found in the clonsideration that persons who have been joined together by God ought not to be put asunder by man. The system goverfiing the succession to the headship of a house in Japan is partly founded on the religious consideration that it is necessary to perpetuate services for the benefit of the departed souls of one's ancestors, SECTION 7. FOREIGN LAW. It is in the case of inherited (adopted) law that foreign law becomes a source of law to a country. A foreign law does not forthwith become the law of a country. No country is bound to follow the law of another state. Foreign law becomes the law of a state when the latter, with the intention of fellowing the example of such law, bestows the force of law on provisions which are similar to, or the same as, such foreign law. In these days, when foreign intercourse is so frequent, there are many cases where foreign law becomes a source of native law. (In reference vide "Indigenous and Inherited (adopted) Laws" in the preceding Chapter.)