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The ‘standard of civilization’ in international law: Intellectual perspectives from pre-war Japan

  • Mohammad Shahabuddin (a1)
Abstract

This article establishes the normative connection between Japan’s responses to regional hegemonic order prior to the nineteenth century and its subsequent engagement with the European standard of civilization. I argue that the Japanese understanding of the ‘standard of civilization’ in the nineteenth century was informed by the historical pattern of its responses to hegemony and the discourse on cultural superiority in the Far East that shifted from Sinocentrism to the unbroken Imperial lineage to the national-spirit. Although Japanese scholars accepted and engaged with the European standard of civilization after the forced opening up of Japan to the Western world in the mid-nineteenth century, they did so for instrumental purposes and soon translated ‘civilization’ into a language of imperialism to reassert supremacy in the region. Through intellectual historiography, this narrative contextualizes Japan’s engagement with the European standard of civilization, and offers an analytical framework not only to go beyond Eurocentrism but also to identify various other loci of hegemony, which are connected through the same language of power.

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Earlier versions of this article have been presented before the European Society of International Law, International Law Association, Harvard Law School’s Institute for Global Law and Policy (IGLP), Colombian Association of International Law, and in numerous Japanese institutions. I am thankful to the participants of these events for their valuable comments and insights. I am in particular indebted to colleagues in Japan who not only raised challenging questions but also offered very useful guidance. I must especially mention some of them for their extraordinary support: Professor Hajime Yamamoto, Professor Ichiro Araki, Professor Hyuck-Soo Yoo, Professor Satoshi Kodera, and Dr Tomoko Kakee. I am also thankful to Professor Antony Anghie, Professor Matthew Craven, Professor Fiona de Londras, Professor Tsachi Karen-Paz, and editors and anonymous reviewers of LJIL for their important thoughts and comments. All errors are of course mine. Necessary research visits to Japan for this project were supported by the Japan Foundation Fellowship in 2016 and visiting professorship at Keio Law School in 2016 and at Yokohama National University during 2013–2014. I am thankful to these institutions. However, views expressed in this article do not necessarily represent the views of these institutions.

The scope of research for this article is limited to the extent that I have extensively relied on various secondary sources or translations of Japanese language primary texts. However, due care has been taken to ensure the authenticity and accuracy of all translations used in this article.

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1 Chakrabarty, D., ‘The Muddle of Modernity’, (2011) 116(3) The American Historical Review 663 at 672.

2 See, e.g., Kuriyama, S., ‘Historical Aspects of the Progress of International Law in Japan’, (1957) 1 The Japanese Annual of International Law 1, at 1.

3 Ibid., at 1. This treaty was soon followed by similar treaties with Britain in 1854, and Russia in 1855.

4 Cosenza, M.E. (ed.), The Complete Journal of Townsend Harris (1930), at 507–13.

5 See, e.g., Onuma, Y., ‘When Was the Law of International Society Born? An Inquiry of the History of International Law from an Intercivilizational Perspective’, (2000) 2 Journal of the History of International Law 1, at 1–66; Y. Onuma, A Transcivilizational Perspective on International Law: Questioning Prevalent Cognitive Frameworks in the Emerging Multi-polar and Multi-civilizational World of the Twenty-first Century (2010); Yamauchi, S., ‘Civilization and International Law in Japan during the Meiji Era (1868–1912)’, (1996) 24(2) Hitotsubashi Journal of Law and Politics 1, at 1–25; Yanagihara, M., ‘Introduction: The Role of Prominent Jurists in Japan’s Engagement with International Law, 1853–1945’, (2013) 56 The Japanese Yearbook of International Law 1 at 1–3; Yanagihara, M., ‘Japan’s Engagement with and Use of International Law, 1853–1945’, in Steiger, H. and Marauhn, T. (eds.), Universality and Continuity in International Law (2011), 447 at 447–70; Yanagihara, M., ‘Japan’, in Fassbender, B. and Peters, A. (eds.), The Oxford Handbook of the History of International Law (2012), 475 at 475–99; Akashi, K., ‘Japan-Europe’, in Fassbender, B. and Peters, A. (eds.), The Oxford Handbook of the History of International Law (2012), 724, at 724–43; Akashi, K., ‘Japanese “Acceptance” of the European Law of Nations: A Brief History of International Law in Japan c. 1853–1900’, in Stolleis, M. and Yanagihara, M. (eds.), East Asian and European Perspectives on International Law (2004), 1 at 1–21; Kuriyama, S., ‘Historical Aspects of the Progress of International Law in Japan’, (1975) 1 The Japanese Annual of International Law 1, at 1–5; Kanae, T., ‘Japan’s Early Practice of International Law in Fixing Its Territorial Limits’, (1978) 22 The Japanese Annual of International Law 1, at 1–20; Lam, H., ‘Learning the New Law, Envisioning the New World: Meiji Japan’s Reading of Henry Wheaton’, (2013) 56 The Japanese Yearbook of International Law 4, at 4–36; Otsuka, H., ‘Japan’s Early Encounter with the Concept of the “Law of Nations”’, (1969) 13 The Japanese Annual of International Law 35 at 35–65; Ito, F., ‘One Hundred Years of International Law Studies in Japan’, (1969) 13 The Japanese Annual of International Law 19, at 19–34; Lee, K., ‘The ‘Reception’ of European International Law in China, Japan and Korea: A Comparative and Critical Perspective’, in Steiger, H. and Marauhn, T. (eds.), Universality and Continuity in International Law (2011), 419 at 419–46.

6 For a detailed discussion on the evolution of the concept of ‘civilization’ see Tarazona, L.O., ‘The Civilized and the Uncivilized’, in Fassbender, B. and Peters, A. (eds.), The Oxford Handbook of the History of International Law (2012), 917 at 917–42.

7 Cf. G.W. Gong, The Standard of ‘Civilization’ in International Society (1984); Schwarzenberger, G., ‘The Standard of Civilization in International Law’, (1955) 17 Current Legal Problems 212, at 212–34. See also Duara, P., ‘The Discourse of Civilisation and Pan-Asianism’, (2001) 12(1) Journal of World History 99, at 99.

8 Note that during the interwar period, Japanese foreign policies gradually moved towards pan-Asianism (Asia-shugi), but the underlying notion of ‘civilizing mission’ continued to justify Japan’s leadership role in Asia.

9 Although such connections are commonly made. See, e.g., Maruyama, M., Thought and Behaviour in Modern Japanese Politics (translated by Morris, I.) (1963).

10 Watanabe, H., A History of Japanese Political Thought 1600 –1901 (translated by Noble, D.) (2010), 24.

11 Onuma, ‘When Was the Law of International Society Born?’, supra note 5, at 12. See also Yanagihara, Masaharu, ‘Japan’, in Fassbender, B. and Peters, A. (eds.), The Oxford Handbook of the History of International Law (2012), 476 at 476–7.

12 Watanabe, supra note 10, at 25.

13 Onuma, ‘When Was the Law of International Society Born?’, supra note 5, at 12.

14 Ibid., at 17.

15 W. Zhang, Fukuzawa Yukichi: The Pioneer of East Asia’s Westernization with Ancient Confucianism (2010), 26.

16 Onuma, ‘“Japanese International Law” in the Pre-war period – Perspectives on the Teaching and Research of International Law in Pre-war Japan’, (1986) 29 The Japanese Annual of International Law 23, at 234.

17 Ibid., at 24.

18 Tsunoda, R. and Goodrich, L. C., ‘History of the Kingdom of Wei (Wei zhi) ca. 297 C.E.’, in de Barry, W.T., Keene, D., Tanabe, G. and Varley, P. (eds.), Sources of Japanese Tradition (2001), vol. I, at 68. See also R. Tsunoda and L.C. Goodrich, Japan in the Chinese Dynastic Histories: Later Han through Ming Dynasties (1851).

19 Onuma, supra note 16, at 24.

20 Satoo Naokata, Chuugoku ronshuu, quoted in Watanabe, supra note 10, at 279.

21 See Onuma, ‘When Was the Law of International Society Born?’, supra note 5, at 13. See also Yanagihara, supra note 11, at 475.

22 Yanagihara, supra note 11, at 475.

23 Onuma, supra note 16, at 24–6.

24 Ibid., at 24.

25 Ibid., at 26.

26 See Akashi, K., ‘Japan-Europe’, in Fassbender, B. and Peters, A. (eds.), The Oxford Handbook of the History of International Law (2012), 727 at 727.

28 Onuma, supra note 16, at 24–5.

29 Ibid., at 25.

30 For a debate on whether Ryukyu should be treated as an ikoku (foreign land) or iiki (fringe land but not a domestic area) from Japanese perspectives, see Yanagihara, supra note 11, at 479–80.

31 Kanae, T., ‘Japan’s Early Practice of International Law in Fixing Its Territorial Limits’, (1978) 22 The Japanese Annual of International Law 1, at 13. See also, Akashi, supra note 26, at 727–8.

33 R.I. Hellyer, Defining Engagement: Japan and Global Contexts, 1640–1868 (2009), 1.

34 Kanae, supra note 31, at 13.

35 Ibid. However, Yanagihara notes that the status of Ryukyu in relation to Tokugawa Japan remains an unresolved issue among Japanese historians. See Yanagihara, supra note 11, at 482–3.

36 Watanabe, supra note 10, at 86–8. See also, Zhang, supra note 15, at 27.

37 E. Kaibara, Bukun (Military Lessons) (1716), quoted in Watanabe, supra note 10, at 89. Kaibara died in 1714 and Bukun was published posthumously by his disciple Takeda Shunan (1661–1745).

38 For example, the military scholar Tsugaru Koodoo (1682–1729) openly advocated ‘military rule’ as opposed to the ‘moral rule’ of the Confucians, arguing that foreign lands are ruled by ‘cultural virtues’, while Japan, because of its topography and the character of its soil and water, is ruled by ‘military virtues’. See T. Koodoo, Buji teiyoo, cited in Watanabe, supra note 10, at 96. Others rejected the relevance and utility of archaic, foreign teachings to Japanese governance. Matsudaira Nobutsuna (1596–1662), for example, suggested ignoring classic Confucian texts in favour of the stratagems of Tokugawa Leyasu (Gongen-sama) and of men who know the laws handed down by the Tokugawa regime. See O. Toyonaga, Nobutsuna ki, cited in Watanabe, supra note 10, at 79.

39 For a detailed account, see Watanabe, supra note 10 at 89–90, 103, 106–18, 125, 161–4. See also Zhang, supra note 15, at 26–8.

40 Y. Sokoo, Haisho zanpitsu, cited in Watanabe, supra note 10, at 90.

41 Watanabe, supra note 10, at 90.

42 Y. Sokoo, Chuuchoo jujitsu, cited in Watanabe, supra note 10, 90–1.

43 See generally Maruyama, M., Studies in the Intellectual History of Tokugawa Japan (translated by Hane, M.) (1974).

44 Onuma, supra note 16, at 26.

45 Saaler, S., ‘Pan-Asianism in Modern Japanese History’, in Saaler, S. and Koschmann, J.V. (eds.), Pan-Asianism in Modern Japanese History: Colonialism, Regionalism and Borders (2007), 3, at 3.

46 Chikafusa, K., A Chronicle of Gods and Sovereigns (translated by Varley, H.P.) (1980), 49.

47 Watanabe, supra note 10, at 238.

48 Norinaga, M., Tamakushige (translated by Brownlee, J.S.) (1988) 43(1) Monumenta Nipponica 45, at 59. Norinaga wrote Tamakushige (The Jeweled Comb-Box) in 1786 but it was first published after two major revisions in 1789. See Brownlee, J.S., ‘The Jeweled Comb-Box: Motori Norinaga’s Tamakushige’, (1988) 43(1) Monumenta Nipponica 35, at 35.

49 Norinaga, supra note 48, at 59.

50 Watanabe, supra note 10, at 248.

51 Norinaga, supra note 48, at 59.

52 Zooho Motori Norinaga zenshuu, cited in Maruyama, supra note 43, at 154.

53 Maruyama, supra note 43, at 154.

54 Nishimura, S. and Norinaga, M., ‘The Way of Gods: Motoori Norinaga’s Naobi no Mitama’, (1991) 46(1) Monumenta Nipponica 21, at 29.

55 Ibid., at 33–4. See also Maruyama, supra note 43, at 150.

56 See H. Gennai, Fuuryuu Shidooken Den (The Stylish Life of Shidooken) (1763), quoted in Watanabe, supra note 10, at 289.

57 M. Norinaga, Kuzubana, quoted in Watanabe, supra note 10, at 245.

58 Norinaga, supra note 48, at 45.

59 See Watanabe, supra note 10, at 280.

60 M. Norinaga, Toomonroku, quoted in Watanabe, supra note 10, at 242.

61 Norinaga, supra note 48, at 48.

62 Watanabe, supra note 10, at 240.

63 B.T. Wakabayashi, Anti-Foreignism and Western Learning in Early-Modern Japan (1986), 138.

64 Ibid., at 138.

65 However, some foreigners were exempt: ‘four gates’ were held open for international trade. See Lam, supra note 5, at 34–6.

66 Note that wholesale seclusion has never been the case; Japan remained diplomatically and commercially engaged, especially with neighbouring countries. See Hellyer, supra note 33, at 6. For a more recent take on this subject see Yanagihara, supra note 11, at 477–81.

67 Maruyama, supra note 43, at 352.

68 Wakabayashi, supra note 63, at 54.

69 S. Aizawa, New Theses (translated by B.T. Wakabayashi) (1825), in B.T. Wakabayashi, Anti-Foreignism and Western Learning in Early-Modern Japan (1986), 55.

70 Ibid., at 200.

71 See Maruyama, supra note 43, at 355–6.

72 Wakabayashi, supra note 63 at 13.

73 Aizawa, supra note 69, at 152.

75 Ibid. See also Shahabuddin, M., ‘Nationalism, Imperialism, and Bandung: Nineteenth-Century Japan as a Prelude’, in Eslava, L., Fakhri, M. and Nesiah, V. (eds.), Bandung, Global History, and International Law: Critical Pasts and Pending Futures (2017), 95, at 97–9.

76 See, Wakabayashi, supra note 63, at 9, 15, and 139. Cf. Maruyama, supra note 43, at 323–67.

77 Onuma, supra note 16, at 26.

78 Wakabayashi notes that the 1890 Imperial Rescript on Education borrows this sentence from the section entitled ‘What is Essential to a Nation (kokutai)’ in Aizawa’s New Theses: ‘All the people of the realm be of one heart and mind.’ See also Aizawa, supra note 69, at 262.

79 See Otsuka, H., ‘Japan’s Early Encounter with the Concept of the “Law of Nations”’, (1969) 13 The Japanese Annual of International Law 35, at 35–41. See also W.G. Beasley, Japanese Imperialism 1894–1945 (1987), 14–26.

80 See Keene, D. and Aizawa, S., ‘A Plan for Tasks at Hand: Aizawa Seishisai’s “Jimusaku”’, (2007) 62(1) Monumenta Nipponica 75, at 75–86. See also Wakabayashi, supra note 63, at 137.

81 H.M. Hopper, Fukuzawa Yukichi: From Samurai to Capitalist (2005), xiii.

82 See Yanagihara, M., ‘Introduction: The Role of Prominent Jurists in Japan’s Engagement with International Law, 1853–1945’, (2013) 56 The Japanese Yearbook of International Law 1, at 2–3. See also Han, S., ‘Yukichi Fukuzawa (1835–1901) – Revisiting Fukuzawa from a Comparative Perspective’, (2013) 56 The Japanese Yearbook of International Law 37, at 37–69.

83 I. Takenori, “Introduction” (translated by R. Beville), in Y. Fukuzawa, An Outline of a Theory of Civilization (translated by D.A. Dilworth and G.C. Hurst III) (1875), (2008), xiii.

84 Ibid., at xv. See also Shahabuddin, supra note 75, at 100–4.

85 Fukuzawa, Y., An Outline of a Theory of Civilization (translated by Dilworth, D.A. and Hurst, G.C. III) (1875), 1.

86 Ibid., at 45.

87 Ibid., at 18.

88 J. Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities (1883), 101.

89 Han, supra note 82, at 49.

90 Fukuzawa, supra note 85, at 18–19.

91 Ibid., at 17–18.

92 Ibid., at 20.

94 Y. Fukuzawa, cited in Takenori, supra note 83, at xix.

95 Fukuzawa, supra note 85, at 35–6.

96 Ibid., at 36–7.

97 Ibid., at 225.

98 Ibid., at 234.

99 Ibid., at 235.

100 Ibid., at 251.

101 H. Parkes, quoted in O. Checkland, Britain’s Encounter with Meiji Japan, 1868–1912 (1989), 17.

102 Hopper, supra note 81, at 120.

103 Ibid.

104 Ibid.

105 Y. Fukuzawa, quoted in Zhang, supra note 15, at 152.

106 Zhang, supra note 15, at 152.

107 Y. Fukuzawa, Jiji Shogen (Current Affairs Briefly Discussed, 1881), quoted in Zhang, supra note 15, at 155.

108 Hopper, supra note 81, at 110–11.

109 Ibid., at 121.

110 Y. Fukuzawa, ‘Datsu-A Ron’, Jiji Shimpo, 16 March 1885, ‘On Departure from Asia’ (translated by S. Vinh) (1984), 11 Fukuzawa Yukichi Nenkan [The Yearbook of Yukichi Fukuzawa] 1, at 1.

111 Ibid., at 4.

112 Ibid.

113 Checkland, supra note 101, at 14–16.

114 S. Hirakawa, Japan’s Love-Hate Relationship with the West (2005), 117.

115 Tsunoda, R., de Bary, W.T. and Keene, D. (eds.), Sources of Japanese Tradition, vol. II (1964), 678.

116 Benner, E., ‘Japanese National doctrines in international Perspective’, in Shimazu, N. (ed.), Nationalism in Japan (2006), 29.

117 Jansen, M.B., ‘Modernization and Foreign Policy in Meiji Japan’, in Ward, R.E. (ed.), Political Development in Modern Japan (1968), 149 at 183.

118 Benner, supra note 116, at 29.

119 Hirakawa, supra note 114, at 49.

120 Checkland, supra note 101, at 127.

121 D. Duncan, The Life and Letters of Herbert Spencer (1908), 161.

122 Checkland, supra note 101, at 130.

123 Duncan, supra note 121, at 319, 321.

124 See R.P. Anand, Studies in International Law and History: An Asian Perspective (2004), 24–102.

125 H. Wheaton, Elements of International Law (1846), 46. See also Lam, supra note 5, at 22.

126 See T. Osatake, Bakumatsu Hishi Shinbun Waiso, cited in Yamauchi, S., ‘Civilization and International Law in Japan during the Meiji Era (1868–1912)’, (1996) 24(2) Hitotsubashi Journal of Law and Politics 1, at 2.

127 Ibid.

128 Checkland, supra note 101, at 13.

129 See, Beasley, supra note 79, at 33. For a meticulous account of the renegotiation of unequal treaties see F.C. Jones, Extraterritoriality in Japan (1931).

130 Benner, supra note 116, at 32.

131 The Charter Oath of 1868 reads: ‘All absurd usages of the past shall be broken through, and everything shall be based upon just and equitable principles of Nature. Wisdom and knowledge shall be sought throughout the world and thus the foundations of the Empire shall be strengthened.’

132 Hirakawa, supra note 114, at 122–4.

133 Beasley, supra note 79, at 43–4.

134 S. Giffard, Japan Among the Powers 1890–1990 (1994), 14.

135 Hopper, supra note 81, at 125.

136 Y. Fukuzawa, “Attack Peking Immediately” (Tadatini Pekin wo Tukubesi), quoted in Yamauchi, supra note 126, at 8.

137 Hopper, supra note 81, at 127.

138 S. Tokutomi, quoted in J.D. Pierson, Tokutomi Sohoo, 1863–1957: A Journalist for Modern Japan (1980), 229.

139 Ibid., at 235–6.

140 Beasley, supra note 79, at 32.

141 See Pierson, supra note 138, at 318.

142 Benner, supra note 116, at 28.

143 See H. Saito, Japan’s Policies and Purposes: Selections from Recent Addresses and Writings (1935), 136.

144 W.E. Griffis, The Mikado’s Empire: A History of Japan from the Mythological Age to the Meiji Era (2000), 433.

145 For full text of the document see I. Nish, Anglo-Japanese Alliance, 1894–1907 (1966), 216–17.

146 Giffard, supra note 134, at 26.

147 For a detailed account of diplomacy leading up to the Russo-Japanese War, see Beasley, supra note 79, at 80–2.

148 Saaler argues that Kakuzo’s target audience were Indians. See Saaler, supra note 45, at 5.

149 O. Kakuzo, The Awakening of Japan (1905), 179–81.

150 Ibid., at 182.

151 O. Kakuzo, The Book of Tea (1906), 2–3.

152 T. Yosaburoo, Japanese Rule in Formosa (translated by G. Braithwaite) (1907), vii.

153 Kanae, supra note 31, at 15. See also Lam, supra note 5, at 33.

154 Kanae, ibid., at 14–15.

155 Dai Nihon Gaiko Bunsho (Documents relating to the Foreign Relations of the Japanese Empire), vol. VIII, 327–8, quoted in Kanae, supra note 31, at 15–16.

156 Kuriyama, supra note 2, at 3.

157 Takahashi joined Cambridge University and published Cases on International Law during the Sino-Japanese War (1899) and International Law applied to the Russo-Japanese War with the Decisions of the Japanese Prize Court (1908). Westlake wrote the introduction to his book on Sino-Japanese War and Holland contributed a preface. Ariga produced similar books in French: Law guerre sino-japonaise au point de vue du droit international (1896) and La guerre russo-japonaise au point de vue du droit international (1908). See Kuriyama, supra note 2. For other scholarly works concerning the Russo-Japanese War, see Ito, F., ‘One Hundred Years of International Law Studies in Japan’, (1969) 13 The Japanese Annual of International Law 19, at 23.

158 See Yamauchi, supra note 126, at 13.

159 Ibid.

160 U. Kanzo, Justification of the Corean War, Kokumin no Tomo (A friend of the nation), quoted in Yamauchi, supra note 126, at 8.

161 See, e.g., Westlake, J., ‘Introduction’, in Takahashi, S., Cases on International Law during the Chino-Japanese War (1899), xvxvi. See also T.E. Holland, Studies in International Law (1898), 114–15.

162 See, e.g., A.B. Lorca, Mestizo International Law: A Global Intellectual History 1841–1933 (2014).

Earlier versions of this article have been presented before the European Society of International Law, International Law Association, Harvard Law School’s Institute for Global Law and Policy (IGLP), Colombian Association of International Law, and in numerous Japanese institutions. I am thankful to the participants of these events for their valuable comments and insights. I am in particular indebted to colleagues in Japan who not only raised challenging questions but also offered very useful guidance. I must especially mention some of them for their extraordinary support: Professor Hajime Yamamoto, Professor Ichiro Araki, Professor Hyuck-Soo Yoo, Professor Satoshi Kodera, and Dr Tomoko Kakee. I am also thankful to Professor Antony Anghie, Professor Matthew Craven, Professor Fiona de Londras, Professor Tsachi Karen-Paz, and editors and anonymous reviewers of LJIL for their important thoughts and comments. All errors are of course mine. Necessary research visits to Japan for this project were supported by the Japan Foundation Fellowship in 2016 and visiting professorship at Keio Law School in 2016 and at Yokohama National University during 2013–2014. I am thankful to these institutions. However, views expressed in this article do not necessarily represent the views of these institutions.

The scope of research for this article is limited to the extent that I have extensively relied on various secondary sources or translations of Japanese language primary texts. However, due care has been taken to ensure the authenticity and accuracy of all translations used in this article.

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