2. Postwar Development of Japanese Law. Influence of American Law

After the Second World War, with the enactment of the 1946 Constitution, civil, family, labour, and criminal law were reviewed and renewed.

The 1946 Constitution proclaimed the principle of people's sovereignty, the emperor was deprived of political power and acknowledged to be a "symbol of the State and unity of the people", parliament was declared to be the "highest agency of State power and sole legislative agency of the State". The Constitution also consolidated the basic democratic lights and freedoms of the individual. Article У of the Constitution contained a renunciation of war and of the threat or use of armed force as a means of settling international disputes.

In accordance with American legal views, the role of judicial power was intensified in the 1946 Japanese Constitution and a catalogue given of basic rights and freedoms of citizens subject to direct judicial defence.

Provisions were constitutionally consolidated on the inviolability of the basic rights of man (Article 11), respect for the individual (Article 13), equality of all before the law (Article 14), freedom of thought, conscience, profession of faith, assembly, association, speech, press, and other means of expressing opinions (Articles 19-23).

The rights of citizens proclaimed in the Constitution in the sphere of criminal procedure are of importance: a prohibition against the application of punishment without due process (Article 31), right to a judicial examination of any accusation (Article 32), prohibition against illegal arrest (Article 33), right to defence (Article 34), prohibition against illegal searches (Article 35), prohibition against the use of torture and cruel punishments (Article 36), the right of each accused in a criminal case to a speedy and open examination of his case by an impartial court, with legal assistance free of charge if this is necessary (Article 37), and others.

On the basis of the 1946 Constitution important changes also were made in the text of the Civil Code. In 1947 the institution of the patriarchal family was abolished, female and male were declared to be equal participants of family, property, including inheritance, relations. A 1945 law recognised the right to the creation and freedom of activity of trade unions, and according to a 1947 law on labour standards, limitations were established on the duration of the work day and work week, annual paid leave was introduced, and so on. Landlord landholdings were destroyed by laws on agrarian reform and land transferred to the ownership of peasants who cultivated it. Finally, in accordance with a 1947 law on the prohibition of private monopolies and ensuring private trade practice, the largest Japanese holding companies were dissolved.

The defeat of Japan in the Second World War and its occupation for seven years by American forces led to material changes in Japanese law. This was facilitated by the fact that the Anglo-American legal family exerted a dominant influence on the development of Japanese law. Most tangibly it emerged in constitutional, trade, and criminal procedure law.

The text of the draft 1946 Constitution of Japan was drawn up by jurists from the Headquarters of American occupation forces. Naturally, they used the United States Constitution as the model. In accordance with the American model, the institution of constitutional review was provided for in the Japanese Constitution. Constitutional control, that is, verification of any legislative or administrative acts on the subject of their conformity to the Constitution, may be effectuated not only by the Supreme Court, but also by inferior courts, certain of which have rendered decisions to deem unconstitutional even governmental decrees.

The law on monopolies was copied from American anti-trust acts. The influence of American law is uncontestable in postwar Japanese joint-stock legislation. The impact of the American legal system in the sphere of criminal procedure was significant. The 1948 Code of Criminal Procedure under the influence of American legal conceptions significantly expanded the application of the principle of adversarialness, excluding the institution of the preliminary hearing of cases, and so on. In this same period laws were adopted on court organisation (1947), procuracy (1947), bar (1949) - all continuing to operate to now, although all repeatedly amended.

This influence of the law of the United States on the Japanese legal system proved to be not strong enough to "regravitate" Japanese law entirely towards the family of Anglo-Saxon law. The influence of American law nonetheless is rather limited and not fully consistent.

The fact is that the majority of institutions of the principal branches of Japanese law - civil, trade, civil procedure, and criminal - are as before based on the traditions of the Romano-Germanic legal family. One must concur with the conclusion to which the Japanese jurist, I. Tsueno, came: "The Romano-Germanic system occupies the dominant position in contemporary Japanese law".

The community of Japanese law with the law of the countries of the Romano-Germanic family is manifest not only in the content of positive law, but also in the system of sources. Japanese law, unlike the Common law, is a statutory legal system. The principal, leading source of law in Japan is legislation, codified legislation. This fact serves as the principal obstacle to the further coming together of Japanese and American law and determines the boundaries of that coming together.

In Japan, as in other countries of the Romano-Germanic family, a change of the role of judicial practice is observed, an enhancing of its significance, a transformation into an actual source of law. But judicial decisions act all the same as a means of concretisation, of interpretation of norms of statutory law.

If we dwell on the positions of the normativist conceptions about law, to find norms purely Japanese by their origin in the present legal system of the country is rather difficult. They arc few. They are uncommon interspersions in the European legal fabric. It should not be forgotten that the reception of Romano-Germanic law has developed for more than a century under conditions of a country having an ancient culture, traditions, and customs.

In a number of branches of law (for example, environmental protection, consumer protection) Japan has worked out legal mechanisms without looking to foreign law but, on the contrary, giving to other States an example of legislation resolution of problems that arise. In this connection the intensive development of legislation on environmental protection deserves attention. Such laws have been enacted as the prevention of stench (1971), compensation for damage caused by processed oils (1975), regulation of vibration (1976), prevention of pollution of the atmosphere and noise limitation (196X), punishments for crimes consisting of environmental pollution dangerous for human health (1970). Deprivation of freedom has been provided for a worker who violated respective rules for production activity and a fine for a juridical person which has caused to human health. Great attention is devoted in Japan to utilisation of wastes and maintenance of purity in urban conditions.

As a whole, however, the former codification system has been retained, the core of which consists of the six codes (changes having been made in them arising from the Constitution), augmented by a significant group of laws and other normative acts forming as a whole a system of sources similar western Europe. Precedent has not become a source of Japanese law.