JAPANESE CIVIL CODE 385 



word to translate it, and a new word had to be coined to express this 

 novel idea. The late Dr. Tsuda, who had been sent to Holland by the 

 Shogunate Government to study law in the University of Leyden, on 

 his return to Japan published a book entitled A Treatise on Western 

 Public Law, in 1868, the year of the Restoration. In this book he 

 used the new word "ken-ri" for right, which he coined by combining 

 the words "ken," or "power," and "ri," or "interest." This word has 

 since been received to express the notion of right. Sir John Lubbock 

 in his book On the Origin of Civilization (ch. viii) says that lower 

 races are " deficient in the idea of right, though familiar with that 

 of law." Sir Henry Maine says that "jus" among Roman lawyers 

 generally meant not " a right " but "law"; and that Romans "con- 

 structed their memorable system without the help of the conception 

 of legal right." I think it may be laid down as a general rule of the 

 evolution of law that laws from being the rules of duty become the rules 

 of right. Early laws impose duty but do not confer right. But in the 

 course of time, men begin to realize that the benefit which results to 

 any one on account of duty imposed upon another is of greater 

 importance than the duty itself; so that right, which was at first only 

 the secondary notion and nothing more than the reflection of duty, 

 began to be regarded as the primary object of law. This change in the 

 conception of law has taken place in Japan within the last forty years, 

 and has resulted in the classification of the rules of the Civil Code on 

 the basis of right. 



IX. The Legal Position of Woman 



With reference to book i of the Code, which relates to "General 

 Provisions," I shall only touch upon the subjects of the legal position 

 of woman and that of foreigners; for these are the two points where 

 the Code has made greatest changes in that part of the law. I shall 

 first speak of woman. 



Three periods may be distinguished in the history of Japan as to 

 the legal position of woman; the first corresponding to the period 

 during which our national law consisted solely of indigenous elements; 

 the second when Japanese law belonged to the Chinese family of 

 law; and the third dating from the time when our law passed from 

 the Chinese to the European family of law. 



The first period extends from the beginning of our history to the 

 introduction of Chinese civilization. During this period, women seem 

 to have occupied a higher place than in later times, filling positions 

 of importance and honor in state, religion, and household. Perhaps 

 the higher position which women occupied during the early period 

 of our history was due partly to the primitive simplicity and the 

 absence of artificial doctrines, which later on assigned a subordinate 

 position to women. The first Imperial Ancestor and the central figure 



