Hozumi Nobushige and the Old Civil Code of 1890

Abstract

The Japanese Old Civil Code compiled mainly by the French legal advisor G. E. Boissonade, and published in 1890, was to take effect in 1893, but the "Postponement Campaign" against the Code arose in the meantime. Consequently the Diet decided to postpone the enforcement of the Code and a new Civil Code drafted by the Japanese jurists went into operation in 1898, which is still effective except for the law of domestic relations and succession.
HOZUMI Nobushige (1855-1926) was one of the leading champions of the postponement party and became de facto chairman of the three draftsmen of the new Code later on. In this paper the author intends to clarify the contents of his criticism of the Old Civil Code and to criticize the prevailing view which regards the legal theory of Hozumi as westernized and progressive, introducing his lecture "Principles of Civil Law" delivered at the Law School of the Imperial University from 1890 to 1893.
The main points of his lecture are as follows.
1. The arrangements of the Old Code is based on the French Civil Code with a few adjustsments. Hozumi, however, considered the German style (Pandekten System) technically better and suitable to the Japanese conventional succession system, unlike the French Roman style (Institution System).
2. He approves the Family System provided in the Old Civil Code for the most part. For, it pays much cosideration to the Japanese customs, although its original draft was progressive under the influence of Boissonade.
3. It is claimed that the property provision of the Old Code is, like the French Civil Code, lacking the concept of the totality (Totalität) of the property right which the German Code emphasized. Furthermore, according to his judgement, the Old Code makes the restriction of the property impossible by adopting the Natural Law Theory.
4. While Boissonade plans to protect the leaseholders in the Old Code, Hozumi states that it is against the customs and will destroy the ethical characters of the Japanese lease relationship.
As has been noted before, the influence of the German Law is evident in Hozumi's criticism of the Old Civil Code, yet, the author advocates that Hozumi pays much consideration to the Japanese customs and conventions, in this sense, he shares much sentiment with the other members of the postponement party.