Reception and beyond: Observing current social issues in Japan from the perspective of Roman law

roman law

Here, Professor Mariko Igimi discusses the reception of Roman Law in Japan

It is widely known that there are two major groups of legal systems in the world: Common Law and Civil Law. The former is also called Anglo- American law to describe its charac- teristic of being developed mainly in England and in jurisdictions with British influence, while the latter is dominant in Continental Europe. This geographical distinction and some of the definitions commonly used, such as the difference in role of the codes or the court decisions, however, do not fully describe the nature of the two systems. They cannot be defined without their historical background, whether the system is an outcome of the reception of Roman law or not.

In Civil Law jurisdictions, most of the legal institutions in their “civil” codes can be traced back to Roman law source such as Corpus Iuris Civilis. This is also true in Japan although it is not a part of, nor ruled by any country of Continental Europe.

The Meiji Restoration

With the restoration of governing powers in 1868 from Shogun to the Emperor, Japan started modernising its country including its legal systems. Although private matters were tradi- tionally considered “small (meaning to be solved by the parties, not by the court authorities)”, Japan soon realised the essentiality of private law for modernisation, which expedited the drafting of its own Civil Code.

The Civil Code of Japan

The code was first drafted by a French scholar, Gustave Boissonade, and was reviewed by the Japanese codification committee and compared with private law of 22 jurisdictions, among which the first draft of the German Civil Code BGB was the most influential. With both French and German law being civil law, Japan thus indirectly adopted Roman law. Many provisions of Japanese Civil Code, Mimpo, can be traced back to Roman law, some even to the Twelve Tables. Studying Roman law for Japanese civil law scholars is, therefore, studying the origin of their own law.

Link without a link: Low birth rate

On the other hand, however, without any relationship of reception, we can find some common issues in ancient Rome and in today’s world. Learning from Roman experience might provide us with useful tools to analyse current problems. The issue of low birth rate is one of such examples.

According to the Cabinet Office of Japan, the ageing rate in 2019 was 28.4%, which is the highest in the world. The population under 15 is only 12.1% as an outcome of the total fertility rate of 1.36% (as of 2019). The Japanese government has been implementing various countermeasures, but the decline of the rate does not seem to be slowing down. Without senior citizens, the population would simply go down. As COVID-19 particularly affects the aged population, the direct impact of the birth rate on the population cannot be overlooked.

Lex Iulia et Papia Poppaea

It was well known that the Roman Principate began with a desideratum of Roman citizens. In concert with his general policy within Rome to restore the Roman Republic, Augustus’ vision of the Roman Empire was a rule of others by the Romans, for which an adequate population of citizens was needed. According to Roman law, paternal citizenship would be given only to the child born out of a formal “in manu” marriage. Therefore, he promulgated a law to enhance marriage and childbirth with carrots, such as ius liberorum, a right of women with three (for free-born women) or four children (for freed women) to be freed from guardianship, which was required to women otherwise, and sticks, such as limitation of leaving and receiving a legacy. The efficiency of this legal policy is uncertain. Nevertheless, the historical fact that the Roman Empire continued for centuries might indicate its positive influence. Two centuries later, Roman citizenship was awarded to all free people living in the Empire regardless of their race. Rome, at least, successfully maintained its power by cosmopolitanising the Empire.

Familia as a Mechanism to Recruit Citizens

As the law was unpopular among contemporaries, Augustus delivered an oration to persuade the unmarried soldiers that he permitted to lawfully wed freedwomen for those not in the senatorial class (Dio, hist. rom. 56,7). This means, that if a male citizen wishes to have a child with a slave woman, he should free the slave and legally engage in wedlock so that the child would thus be a Roman citizen.

This presupposes the function of Roman slavery and slave manumission to produce citizens. Once slaves are formally freed, as the bride of Augustus’ “ideal” case, they acquire citizenships of the state to which their owners belong. Theoretically, Roman slaves were captured enemies (D.41,1,7 pr.). They come into possession of their owners as an alien, be trained and work for the owners, sometimes engage in a personal relationship with the owners and their family members (Cf. D.18,7,7: affectionis ratione) familiarise themselves with the Roman way of life and become ready to be a Roman citizen.

However, a rapid inflow of foreigners into a homologous society often triggers xenophobia. Indeed, Japanese policies on “Technical Intern Training” and the “globalisation” of universities aim to counteract such situations. Roman slavery might also have worked to avoid such friction by taking outsiders into families.

Familia in Rome

Roman families were, in my opinion, multifunctional and were, to some extent, similar to the Japanese pre-modern, traditional family system. It might be worth looking at it in a world today, facing the gradual end of the “modern,” which I would like to continue to discuss in the next (October 2021) edition of Open Access Government.

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© 2019. This work is licensed under CC-BY-NC-ND.

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