384 COMPARATIVE LAW 



Comparative study of succession laws of different peoples in differ- 

 ent degrees of civilization shows that there are three stages in the 

 evolution of this branch of law. In the first and earliest stage, succes- 

 sion is regarded as the mode of perpetuating the worship of ancestors ; 

 next comes the time when it is regarded as a mode of succeeding to the 

 status of deceased persons; and it is only in the last stage that suc- 

 cession becomes a mode of acquiring property. 



Now in Japan, until recently, as the family was a corporation the 

 only person who could hold property was the head of a house. Con- 

 sequently the only kind of succession which was then recognized by 

 law was " katoku sozoku," or the succession to the headship of a house, 

 which was the succession to status, and the house-property descended 

 to the heir as an appendage to the status of the house-headship. It is 

 only since house-members were allowed to have independent pro- 

 perty that succession which can properly be said to be succession to 

 property began to be recognized. So there are at present two kinds 

 of succession, status-succession and property-succession, existing side 

 by side. The status-succession cannot be put under the category of 

 the law of property, nor can the property-succession be put Under the 

 law of persons. The arrangement of the " Pandekten-System," which 

 devotes a particular book to succession law at the end of the Code, is 

 peculiarly suited to this state of law, and recommended itself to the 

 framers of the new code in preference to the classification adopted by 

 Professor Boissonade. 



VIII. The Introduction of the Notion of Right 



It will be seen, from what I have stated above, that the classifica- 

 tion of rules in the new Civil Code is made upon the basis of primary 

 distinctions regarding rights. But the notion of right did not originally 

 exist in Japan, before the introduction of Western jurisprudence. 

 Many writers assume that right is coeval with law, and law and right 

 are only two terms expressing the same notion from different points 

 of view. Some even go so far as to affirm that right is anterior to law, 

 and the latter exists only for the assurance or protection of the former. 

 In Japan, however, the idea of right did not exist so long as her laws 

 belonged to the Chinese family. There was indeed the notion of duty 

 or obligation, but neither the notion of right nor the word for it existed 

 either in Japanese or Chinese. The nearest approach to it in Japanese 

 was perhaps "bun," which means "share" or "portion." This word 

 was frequently used to express the share or part which a person had 

 in society and which he expected that society would recognize as his 

 due. But this word was not quite definite in its meaning, and was 

 more often used in a contrary sense, expressing a person's duty, or 

 sometimes the part or limit which he ought not to exceed. So, when 

 the notion of right was first introduced into Japan, there was no fit 



