TAILIEUCHUNG - INTRODU CTION TO JAPANESE LAW_2

This book, translated and adapted here for English-speaking readers, was orginally published in French in 1966. For more than thirty years, I have taught almost exclusively French law at the Law Faculty of the University of Tokyo. From 1961 to 1963 I was in Paris to extend my knowledge of French law, and during my stay there I had the opportunity to give a course in the Faculty of Law and Economics of the University of Paris aimed at initiating postgraduate students in the elements of Japanese law | CHAPTER IX JAPANESE AND THE LAW In most European countries the word law applies both to objective and subjective law and the term always implies some idea of the protection of the legitimate interests of individuals. In Japan on the contrary the corresponding word ho 1 or horitsU means only the body of legal rules. Japanese have no clear idea of subjective law and as a consequence objective law interrelates very poorly with subjective law. It should not be forgotten that the legal term kenri2 subjective right was invented only in the last days of the Edo period when a knowledge of Western law was first acquired. Even after the reception of the modern legal system state law hardly ever functioned for the protection of individual rights. With the exception of lawyers and persons with some knowledge of law Japanese generally conceive of law as an instrument of constraint that the state uses when it wishes to impose its will. Law is thus synonymous with pain or penalty. To an honorable Japanese the law is something that is undesirable even detestable something to keep as far away from as possible. To never use the law or be involved with the law is the normal hope of honorable people. To take someone to court to guarantee the protection of 1 The Chinese character corresponding to hữ had originally three elements water an imaginary animal which knows how to distinguish the just from the unjust and the action of going away or disappearing. The element animal is eliminated in the present form. Water here signifies impartiality because of the evenness of its surface. Thus the word ho means a desire to have justice rule and injustice disappear. In Japan the justice represented by ho was usually that of the ruling class. 2 In the complex grouping of characters which expresses this notion in Chinese the first character has the meaning of balance or impartiality but at the same time has an original meaning of fraud. The second means interest. At the present time almost .

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