Legal Reform in Occupied Japan: A Participant Looks Back

Legal Reform in Occupied Japan: A Participant Looks Back

ALFRED CHRISTIAN OPPLER
Copyright Date: 1976
Pages: 370
https://www.jstor.org/stable/j.ctt13x11js
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    Legal Reform in Occupied Japan: A Participant Looks Back
    Book Description:

    After a distinguished career as a jurist in Germany, Alfred Oppler came to the United States in 1939, and in 1946 was invited to Tokyo, where he was SCAP's authority on reform of the Japanese legal order to implement the principles of the new Constitution. Here is his account of the legal reforms and the methods used to achieve them.

    The author describes the wide scope of his activities, which included a vigorous promotion of civil liberties, surveillance of relevant legislation, and observation of the administration of justice throughout the country. He focuses on the Continental nature of the Japanese law and analyzes the American objectives as well as the personalities of the Occupation and of Japanese with whom he negotiated. Special chapters describe the Supreme Court mission to the United States (which the author escorted), the removal of General MacArthur, and the author's post-Occupation work on Japanese, Korean, and Ryukyuan problems. Treating all aspects of the legal reforms, this book provides insights into Japan during and after the Occupation.

    Originally published in 1976.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-7061-5
    Subjects: History, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Foreword
    (pp. vii-xiv)
    Kurt Steiner

    The Allied Occupation of Japan was an experiment in directed political change. The avowed purpose was to “democratize” the essentially authoritarian political system of the erstwhile enemy nation. This was to be achieved by altering not only Japan’s political institutions but also her political culture. Inevitably, the question arises whether such a massive interference of outsiders in the life of another nation can be justified, both legally and ethically. The planners of the Occupation found legal justification in the Japanese acceptance of the Potsdam Declaration and, subsequently, of the Instrument of Surrender. They saw sufficient ethical justification in the ends...

  3. Table of Contents
    (pp. xv-xvi)
  4. List of Illustrations
    (pp. xvii-xviii)
  5. Acknowledgments
    (pp. xix-2)
  6. Introduction
    (pp. 3-10)

    It was with utmost reluctance that I began to write my memoirs. If my daughter had not urged me to do so, I would never have had the idea, since I did not want to look back into the past and to relive the various stages of my eventful life with its strange ups and downs in three parts of the globe: Germany, America, and Japan. My further objection that I do not feel important enough for such an undertaking was refuted by the argument that what mattered was not my person, but my experiences and observations. I yielded, mainly,...

  7. CHAPTER ONE Assignment to Japan
    (pp. 11-15)

    After V-J Day, the Foreign Economic Administration, having been a war agency, was dissolved, and we employees were temporarily transferred to the Department of State. Its personnel officer did not appear to have any interest in my German experience and I myself was fed up with German problems. Hence, I was delighted to be approached with the question of whether I would accept an assignment to Japan to serve in General MacArthur’s Tokyo Headquarters, which ran the occupation of the defeated country. The prospect of getting away from the German past, of experiencing a different people and civilization, and of...

  8. CHAPTER TWO Arrival in Tokyo
    (pp. 16-21)

    I had been among a group of men, some of whom were to join other sections of the headquarters. Future colleagues of mine in the Government Section were Andrew J. Grajdanzev and John W. Masland. Both were assigned to the Local Government Branch. Grajdanzev turned out to be a fanatic of decentralization and home rule. As a human being, he was a pleasant combination of kindness and intellectual sophistication. Masland, who was in Tokyo for only a short time, had nothing of Grajdanzev’s lively temperament. He was a very balanced and knowledgeable scholar, somewhat withdrawn. He returned to his professorship...

  9. CHAPTER THREE Personalities and Objectives
    (pp. 22-38)

    We, the newcomers, were not introduced to the Supreme Commander himself. He remained aloof. Maybe we were too small fry initially, but even after I had become division chief with important responsibilities, I had little opportunity to deal with him personally. He was not the type who, as Bobby Kennedy did after his appointment as attorney general, would walk through the office rooms and have a few kind words for every employee down to the last typist; and he would never invite his underlings to social parties and receptions in the spacious former American embassy building, his residence, as his...

  10. CHAPTER FOUR The Mechanics of Communications and Commands
    (pp. 39-42)

    The first problem was where to start, and I decided that I must make myself familiar with the organization, functions, and personnel of the Japanese courts, as well as with the status and attitude of the judges. A meeting with the president of the Supreme Court,¹ Hosono Choryo, was arranged in which we talked to each other through interpreters. Very soon I realized that we saw very much eye-to-eye and that this man would be an invaluable source of information for me and an ally in my future reform efforts. I was delighted to see the genuine, almost choleric fervor...

  11. CHAPTER FIVE The New Constitution
    (pp. 43-64)

    The new Constitution was being deliberated in the Diet in 1946, and under the political circumstances there was no doubt that it would be enacted as the basic law of the land.

    One of the most severe American critics of the way the new Constitution was produced, the late Harold S. Quigley, a thoroughgoing and knowledgeable political scientist, ridicules as sophistry “American belief that they [the Japanese] were free to reject a document prepared in the main in Government Section and enthusiastically endorsed by SCAP.”¹ He touches on the much-debated question of whether or not the revised charter was “imposed”...

  12. CHAPTER SIX The Courts and Law Division
    (pp. 65-71)

    A constitution is only a blueprint of pious principles and will remain ineffective as long as these are not implemented in the law of the land, which in Japan is codified, following the Continental system; and even the most progressive laws are of no avail unless they are willingly respected, vigorously enforced, and become an ingredient of the social fabric. Still, first things had to be done first, namely, the laying of the legal ground. While the Constitution was deliberated in the Diet, I realized with some awe that the tremendous task of bringing the legal and judicial codes into...

  13. CHAPTER SEVEN The Legal and Judicial Reforms: A Cooperative Effort
    (pp. 72-84)

    In approaching this task, I had, as far as method and procedure were concerned, a wait-and-see attitude. I realized that much depended on the response or lack of it on the Japanese side. With respect to the substance of the reforms, however, certain basic ideas on law and society occupied my mind and inspired me. Being fifty-three years old, I was a senior member of the Occupation. If I had learned anything in an eventful life ever close to legal problems, it was that the conception of “law and order” as used in the United States, meaning protection of the...

  14. CHAPTER EIGHT Institutional Reforms
    (pp. 85-110)

    In starting with the substance of the legal and judicial reforms, some very general remarks on the history of the great Meiji codification may suffice for our purpose.¹ I shall restrict myself to emphasizing that the far-reaching adoption of Continental law after the Meiji restoration could well be compared to the reception of Roman law in Europe of the fifteenth and sixteenth centuries. The modernization of Japan’s legal system was at that time held necessary to improve her international prestige, and particularly to free her from the extraterritoriality of the big powers and other handicaps resulting from the unequal treaties....

  15. CHAPTER NINE Reform of Substantive Law
    (pp. 111-129)

    The old Civil Code of 1898 was patterned on the Code Napoleon and on the German Civil Code, in the process of the adoption of Continental law after the Meiji Restoration. The objectives of the Occupation did not call for a change in the three first books of the Civil Code, namely, General Provisions, Real Property, and Obligations. They have remained unchanged, a fact that also disproves the assertion that the Occupation completely Americanized the Japanese law. It was only in the fields of family and inheritance law covered in the fourth and fifth books that fundamental changes were required...

  16. CHAPTER TEN Procedural Codes and Miscellaneous
    (pp. 130-153)

    The existing Code of Civil Procedure of 1890 leaned heavily on its German model of 1877. There were not many provisions in this law that clearly violated principles of the new Constitution. Although the constitutional requirement of a speedy and fair trial is restricted to criminal cases in the instrument, the changes in the Code, some of them purely technical, were also motivated by the desire to expedite the civil procedure and to relieve the courts from an excessive burden of work. The dominant role played by the single judge or the presiding judge of a collegiate court during the...

  17. CHAPTER ELEVEN A Diary for a Short Period
    (pp. 154-172)

    I would like to give a few specific examples of my activities, which were of a great variety. Unfortunately, I have no notes, apart from occasional calendar remarks, because I did not keep a diary. There is, however, one important exception. Between July 1946 and February 1947, the time I worked alone without the help of associates, I dictated short personal activity reports to my secretary. In the following, I shall cite or summarize some of these notes—more or less in telegraphic style—and add a comment if it appears necessary for understanding. This will allow, so to speak,...

  18. CHAPTER TWELVE A Socialist-Led Cabinet
    (pp. 173-177)

    The April 1947 election to the lower House gave the Socialist party a plurality and resulted in the premiership of the Christian labor leader Katayama Tetsu. My hope that this change would promote Occupation objectives, since we would from now on have to deal with a more sincerely cooperative administration, materialized to a considerable extent, as far as my own jurisdiction was concerned.

    The new minister of justice, who, after the reorganization of the ministry and the police became the first attorney general, was Suzuki Yoshio. While he initially impressed me as a rather reticent, if not cool, personality, there...

  19. CHAPTER THIRTEEN Japan’s Civil Liberties Union and Eleanor Roosevelt
    (pp. 178-182)

    Since the principal goal of our legal reforms was the strengthening of individualism and fundamental rights, the promotion of civil liberties inescapably became an essential part of our responsibilities. We were in the fortunate situation of benefiting from a long American tradition of individual freedoms, although the period of Occupation saw the attacks by Senator Joseph McCarthy against them. Steiner and I probably knew how to appreciate this tradition resulting from a revered Constitution more deeply than the native-born American, since, thanks to our European background, we remembered the nightmare that the destruction of all individual rights by a ruthless...

  20. CHAPTER FOURTEEN Happy Reunion
    (pp. 183-188)

    Finally, after fifteen months of separation, my family joined me. My wife arrived at the end of May 1947 in the company of our daughter Ellen, who had graduated from high school the summer before. In preparation for their coming, I had to resolve the housing problem. Several requisitioned houses had been offered to me. I had an aversion to living in the newly constructed army development of Washington Heights, but was also reluctant to take one of those private homes from which the Japanese owner or tenant had been expelled; the consideration that if I did not move into...

  21. CHAPTER FIFTEEN Charlotte and Women’s Emancipation
    (pp. 189-195)

    The Occupation-sponsored emancipation of Japanese women had shown progress after the legislation abolishing the house system. The crucial test of its success was, however, the actual use the women made of their legally won rights. We knew that it would take time until the new ideas would fully and willingly be integrated into Japan’s society. We had good allies in Japan, and the best ones were the educated Japanese women. Among the most enthusiastic ones were the few Japanese female lawyers. I had regular meetings with them in which we discussed their problems and dwelt on the interpretation of the...

  22. CHAPTER SIXTEEN Labor Problems and Communism
    (pp. 196-207)

    I have mentioned before the prohibition of the general strike scheduled by the labor union leaders for February 1, 1947. Those were exciting days for all of us, and we had mixed feelings. On the one hand, we were concerned over the infiltration of radical leftist and communist elements into the union movement, which the Occupation had created and promoted. On the other hand, we admitted that their complaints about starvation wages during an inflationary period were justified in light of a long passivity of the government. The would-be strikers were not merely motivated by economic needs, however, but also...

  23. CHAPTER SEVENTEEN National Security versus Pacifism
    (pp. 208-213)

    When the cold war reached its climax in the Korean conflict, the Occupation was in a vulnerable position. It had instilled a pacifist spirit in the bulk of the Japanese nation, a spirit anchored in the famous Article 9 of the Constitution, which MacArthur had so avidly endorsed, if not inspired.¹ After Korea dispelled all illusions of a peaceful coexistence with the communist world, which had been tremendously enlarged by the emergence of Red China, this constitutional provision—and even more, the psychological disarmament of Japan—stood in the way of alleviating her defenseless condition. We who had disarmed the...

  24. CHAPTER EIGHTEEN Press Conferences and Public Speeches
    (pp. 214-219)

    In connection with my concern for the civil liberties guaranteed in the new Constitution, I inadvertently became publicly involved in the communist problem. On May 7, 1950, the Japan Civil Liberties Union held its annual convention and invited me to deliver a speech. Influenced by the recent communist excesses, I emphasized that there exists in the field of citizens’ freedom a dilemma, since certain minority elements “use the tools of democracy to destroy it.” Thinking of the Weimar Republic, I said that there are precedents in history of excessive toleration of the enemies of free institutions leading to the downfall...

  25. CHAPTER NINETEEN Old and New Tasks in the Legal Section
    (pp. 220-241)

    In the spring of 1948 General Whitney believed, as he stated in the history of his Section, that the primary mission of my Court and Law Division had been accomplished. In his desire to reduce his greatly expanded Section to a small rump organization, he recommended that my whole division, its “residual functions,” and its personnel be transferred to the Legal Section.¹ The transfer took place on May 31, 1948, and my associates and I left Government Section en bloc. I was not very happy about this change, although I knew that it was not motivated by the wish to...

  26. CHAPTER TWENTY A Visit to Military Government Units
    (pp. 242-250)

    With the shifting of the Occupation’s concern from national legislation to the actual administration of justice, we realized increasingly that the Tokyo-bound SCAP functions of observing and advising had to be broadened to cover the remaining part of the country. That made the task of the eight military government regions and of the prefectural teams even more important.² This substructure of the Occupation was under the command of the Eighth Army. Having been eager for a long time, but virtually unable to get away from my Tokyo desk and make contact with the legal officers in these units, I welcomed...

  27. CHAPTER TWENTY-ONE Outbreak of the Korean Conflict
    (pp. 251-254)

    My daughter Ellen had received her B.A. at Smith College in the spring of 1950, and it was a great joy for us when, after a separation of three years, she joined us in Tokyo. She was already with us when the North Koreans invaded South Korea. The news of this event came to us as a shock, since it was such a complete surprise. We wondered why our intelligence was caught off guard, our own G-2, as well as the one in South Korea. On that ominous June 25 there happened to be a large party on the roof...

  28. CHAPTER TWENTY-TWO The Supreme Court Mission
    (pp. 255-275)

    During the eventful year of 1950, I was fortunate enough to participate in one of the most inspiring enterprises of my official life. It brought me back, at least temporarily, to the United States, after an absence of nearly five years. I have already referred to the Exchange of National Leaders Program financed by GARIOA (Government and Relief in Occupied Areas) funds. The importance of these visits of Japanese in prominent positions, sponsored by the Institute of International Education (IIE) and organized by the various Sections of SCAP, went far beyond the objective of professional information; they were to promote...

  29. CHAPTER TWENTY-THREE MacArthur’s Removal
    (pp. 276-287)

    When the mission ended, I was exhausted. Since this was my first return to the States after almost five years of absence, I had arranged a short vacation, which was combined with the official assignment of attending the Second National Conference on the Occupied Countries in Washington. It was mainly concerned with the educational aspects of occupied areas, and offered an interesting comparison of the methods applied in Germany and in Japan. On this occasion, I met my old friend, Roger Baldwin, who delivered the most impressive speech of the whole session. He was an inspiring and eloquent orator.

    In...

  30. CHAPTER TWENTY-FOUR SCAP without MacArthur
    (pp. 288-292)

    After MacArthur was replaced by General Matthew Ridgway, and Frank Rizzo had succeeded Whitney as chief of the Government Section, the Occupation found itself virtually in a self-liquidating process. Drama and action were followed by toleration and laissez-faire. Supervision and controls were reduced to a minimum, depurges completed. Much can be said in favor of a relaxed policy at this time. It was based on the idea that the Japanese, who soon were to regain their independence, must learn in time to stand on their own feet instead of being continuously told what to do and what not to do....

  31. CHAPTER TWENTY-FIVE My Post-Occupation Period
    (pp. 293-317)

    Although in my new assignment I had ceased to be a missionary of democracy, the reader might expect some information on my post-Occupation activities, which kept me in Japan for seven and a half more years. A report of them could easily fill the pages of another book. Here, however, the description of my work will be merely an appendix to the main part covering my Occupation experiences and observations. I shall restrict myself to a brief summary.

    With the end of the Occupation, the SCAP organization had expired, but the American commander-in-chief in Tokyo retained his two other hats,...

  32. CHAPTER TWENTY-SIX Concluding Evaluation
    (pp. 318-336)

    To sum up, I am inclined to believe that three reasons contributed to the success of the legal and judicial reforms:

    1. Most of the pertinent legislation was enacted during the period in which the democratization policy prevailed in the Occupation, and the Japanese, under the impact of defeat and surrender, were especially open to suggestions for change.

    2. The Courts and Law Division, which enjoyed a considerable freedom of action, was composed of trained American lawyers and myself, with my German judicial background, as well as Blakemore who, apart from being an American lawyer, understood the Japanese language and jurisprudence. This...

  33. Index
    (pp. 337-346)
  34. Back Matter
    (pp. 347-347)