Judicial Lawmaking and the Influence of Comparative Law
Studies in Comparative Law and Legal Culture series
Edited by John O. Haley and Toshiko Takenaka
Chapter 2.1: Comparison of law, transfer of legal concepts, and creation of a legal design: The case of Japan
Some may find it surprising to realize that the modern civil laws of Japan – and in turn, those of Korea and Taiwan – are to a significant degree shaped by rules, to cite a provocative phrase by William Ewald, “… that were first struck upon by a leisured class of slave-holding Italian aristocrats – men who pursued law as a hobby, and who have been dead for nearly two thousand years.” The enduring persistence of Roman legal concepts, their long journey through time, and their crossing of national borders and even continents are indeed remarkable. But then “… [Roman law] constitutes, in its ensemble, such a high level of cultural achievement that it will always retain its character as a model for the rational solution of legal conflicts.” A society’s reception of foreign laws can have different triggers. A foreign legal order may be forced upon a country as a consequence of military occupation and ensuing colonization. Or jurists may adapt a specific law simply because of its high prestige and superior quality that competing legal regimes lack at a given point in time. On the other hand, reception may be based on a comprehensive comparison of law that leads to the choice of selected legal rules, possibly in the form of a new bundling of varying rules of different origins into a new code. This latter case is different from the first two because comparative law obviously plays a crucial role in shaping the legal innovation for the adopting state.
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