Ideology and Legal Education

Although there was never any question that Manchukuo would be governed by law, many of the state's founders expressed an open contempt for its Western liberalist interpretation. People such as Ishiwara Kanji 石原莞爾 and Prime Minister Zheng Xiaoxu 鄭孝胥 instead promoted a rhetoric of Confucian moralism voiced alternately as the Kingly Way (wangdao/ōdō 王道) or, later, as the equally vague “spirit of national foundation” (jianguo jingshen 建国精神). The framers of Manchukuo thus faced the task of adapting its legal system and personnel to this unique political ideology.

Yet, in doing so, they were hardly alone. Since the early twentieth century, political ideologies had grown increasingly prominent in the formation and adjudication of law in both Japan and China. In both places, legal reformers had initially demanded certain safeguards to keep the courts free of politics, and had drawn a clear line of separation between the judiciary and political parties. In Japan, a general hostility to political parties, and the sense of crisis and urgency that characterized the Taishō period as a whole, effectively kept parties and party ideologies out of the judiciary, even as the judiciary became increasingly galvanized against the left, and willing to support private political factions (Mitchell Reference Mitchell1973, 317–45). In China, regulations requiring all sitting judges to renounce party affiliation were enacted in 1912 under the newly organized government of Yuan Shikai, and expanded in 1915 to include county magistrates who exercised judicial powers (Xu Xiaoqun Reference Xiaoqun1997, 6). In both cases, however, the separation of judiciary and parties was less idealistic than political in motive—specifically, it was driven by the desire to keep rival factions out of power. In China, the ban was quickly reversed with a change in political fortunes, resulting in the institutionalization of party power within the courts. Soon after its military success in the Northern Expedition, the newly victorious Guomindang began the integration of party members into the judiciary, formally abolishing the prohibition on party membership for judges, and openly advocating a policy of “partification” (danghua 黨化) after 1926. The logic of such policies was eminently clear: because the dominant party represented not only political orthodoxy but also social progress, there was no conflict between party ideology and a truly independent judiciary.

Manchukuo initially retained many of the well-trained administrative personnel it had inherited from the Fengtian regime of Zhang Zuolin 張作霖, but it was always assumed that sitting judges would soon be replaced with jurists trained under Manchukuo auspices (Qin Reference Zhang2005, 69–112). Thus, plans were made early on for two levels of legal education. Late in 1934, the Judicial Law College (sifabu faxuexiao 司法部學校) was opened, with Furuta Masatake 古田正武, formerly a public procurator of the Tokyo Supreme Court and later appointed as the assistant director of the Manchukuo Judiciary, as its head. Three years later, a larger Law University (falü daxue) was founded in the “new capital,” Xinjing 新京 (Shinkyō, modern Changchun). To the surprise of British consular observers (from the tone of the reports, one might say chagrin), people responded to the opportunity for legal education with great enthusiasm. In September 1934, 1,210 local candidates in Mukden, Xinjing, and Harbin competed for one hundred places in the first class of the Judicial Law College. Thereafter, the school continued to enroll sixty to seventy students per year for the three-year course, which was taught by Japanese instructors and included Japanese language training (BCR Mukden September 30, 1934; BCR Mukden, March 31, 1934; BCR Annual Report 1934; Fang and Yao Reference Jue, Yunpeng and Bang1993, 468; Manchoukuo Year Book 1943, 435–36; Soejima Reference Shōichi and Yūzo1995, 140–42). Although political ideals were at the forefront of the school's mission (Imperial Ordinance No. 205 founding the school calls for a legal order to “realize the governance of the Kingly Way”), the college curriculum only vaguely suggests the possibility of ideological content, with courses in political theory offered alongside an otherwise standard legal training. The entrance examination was a bit more suggestive. Following a handful of questions on advanced algebra and geometry, applicants faced a choice of essays on legal basics, as well as topics ranging from the guardedly political “practical differences between consular jurisdiction and extraterritoriality” to the overtly ideological “political theory of the Kingly Way” and “theory of the harmony of the five races” (“Sifabu faxuexiao” 1934, 103–11).

What surprised even the examiners was the enthusiasm with which potential students responded to such questions. The first issue of the Japan-Manchukuo Legal Advisory Association (Nichi-Man hōsō kai) journal dealt at length with the founding of the law college, and included an outline of the examination as well as brief articles by three of the examiners, two Japanese and one Chinese. The first of the two Japanese examiners, Mutō Tomio 武藤富男 (at this time, head of the Punishment Board of the Manchukuo Judiciary) noted that none of the examinees was vocally dissatisfied with the new legal system. Indeed, many expressed a favorable disposition toward Japan and relief at the overthrow of the Zhang Xueliang 張學良 government, leading him to theorize that those who were willing to take the examination represented a stratum that had been dispossessed under the former regime. Both he and a second reader, Sugawara Tatsurō 菅原達郎 (who would later serve as governor of Jiandao Province), expressed surprise, bordering on incredulity, at the outpouring of Confucian rhetoric that students employed in expressing their admiration for the Kingly Way. Students enthusiastically, if formulaically, called for a return to a reign in the style of the legendary sage kings Yao and Shun, and espoused a society with “law and no law, form and no form” (youfa wufa, youxing wuxing 有法無法, 有形無形).Footnote ² Mutō lauded this sort of ideal, but saw it as something to be achieved only thousands of years in the distant future, and attributed this naive enthusiasm to the hot-blooded youth of the examinees, even going as far as to call Confucianism a kind of “intellectual opiate” (aru imi no ahen). For his part, Sugawara was impressed with the rhetorical elegance of the students, but noted that their answers were all roughly the same (daidō shōi 大同小異) and generally lacking in depth. Most answers repeated identical stock phrases about the mythical sage-kings Yao and Shun, but neglected the more relevant political thought of Song dynasty Neo-Confucian Shao Kangjie 邵康節 (Shao Yong 邵雍). Others quoted texts such as the Buddhist Prajñā-pāramitā sūtra about the relativity of law and punishment, but few seemed able to expound on them in detail. Most significantly, while most examinees were able to cite ancient political ideals, few seemed in any way concerned with the practical question of how to adapt them to a modern legal system (Mutō, Jiang, and Sugawara Reference Tomio, Jinshu and Tatsurō1934, 112–30). Far from needing to indoctrinate prospective jurists into the ideology of Manchukuo, the first problem faced by the legal training system was a surfeit of students who were, if anything, a little too proficient in its rhetoric.

Judicial Personnel and the Legal Advisory Society

Although it remains common to characterize the large numbers of Chinese who joined the Manchukuo government as opportunists of the worst type, the fact is, they brought with them a wide range of personalities, loyalties, and agendas (Mitter Reference Mitter2000, 72–100). Like Zheng Xiaoxu (whom normally skeptical British consular observers once referred to as the “only Chinese personality of integrity” in the government), Chief Procurator Luo Zhenyu罗振玉 was devoted to the former Qing and to the person of Pu Yi. Nearly thirty years after the fall of the Qing, until his death in 1940, Luo still wore the Qing plait. At the same time, Luo was also convinced that only Japan could bring China out of its current state of degradation; according to Pu Yi, “in Luo's eyes there were only Japanese” (Aixinjueluo Pu Yi Reference Yi2007, 178–84; BCR Mukden, January 18, 1936; Wang Reference Guoyu and Bang1993, 445–53). In contrast, Zhao Xinbo 趙欣伯, head of the legislature, was entirely a product of Japanese education, having earned a doctorate in law from Meiji University in 1925. Zhao had risen to prominence through the earlier alliance between Zhang Zuolin and Japan, and later opposed the anti-Japanese stance of Zhang Xueliang, saying that “not taking the Japanese road is walking into a dead end” (Guo Reference Yu and Bang1993, 468–81).Footnote ³

Over time, ideological or professional motivations gave way to cynicism, particularly after the 1937 invasion of China proper prompted the mass resignation of many among this first wave of Chinese officials, leaving top Chinese positions to be filled by men of the caliber of Zhang Jinghui 張景惠, characterized as an “illiterate ex-bandit” and “singularly unbeautiful tool in the hands of the Japanese.” Nor were Japanese officials eager to fill the vacuum. British consular reports observed somewhat hyperbolically that “no Japanese with first class qualifications is willing to accept so equivocal a post” as one in Manchukuo (BCR Mukden, January 18, 1936; for a very different assessment of Zhang, see Mitter Reference Mitter2000, 87–91).

Growing cynicism aside, great efforts were made to encourage loyalty among Manchukuo officials and jurists by helping them better understand and identify with the Japanese legal system, in particular through official trips and exchanges to Japan. High-level judicial officials made numerous short and highly publicized visits—such as that by Feng Hanqing 馮涵清, head of the Manchukuo Judiciary, in November 1932, while visits by other top Manchukuo officials, such as that by Zheng Xiaoxu in April 1934, generally included a visit to the Diet or Supreme Court, and a reception by the Tokyo Bar Association or the Japan-Manchukuo Legal Advisory Society (Nichi-Man hōsō kai 日満法曹会) (HS, December 5, 1932; April 10, 1934).

A less visible but perhaps more meaningful type of exchange was the chance for jurists of a slightly lower level to make longer visits or even study in Japan. Late in 1934, a group of five Chinese jurists attached to the high courts and procuracies of Manchukuo, accompanied by Sugawara Tatsurō, made an exhaustive one-month tour of the major legal, economic, religious, and educational institutions in Tokyo, followed by visits to the major courts in Nagasaki, Nagoya, Osaka, Kobe, and Hiroshima, as well as lower courts and punishment and rehabilitation facilities in Japan and Korea (Xu Weixin Reference Weixin1935, 111–19). The following year, a larger group of four Japanese and seven Chinese (the latter being the chief judges of the major high courts) embarked on a similar tour. In the same month, sixteen lower judicial officials chosen from the second graduating class of the Judicial Law College arrived in Japan for a one-year study program, which included an apprenticeship with Japanese legal institutions. Such exchanges were repeated annually, and indeed became frequent enough as to no longer be considered newsworthy (HS, April 20, 1940; October 15, 1940; October 20, 1940; Manchoukuo Year Book, 1943, 435–36).

Such visits appear to have made an impression. Two members of the November 1934 delegation, Xu Weixin 徐維新 and Wang Zhaoxun 王肇勳, high procurates of Fengtian and the Northern Manchuria Special District, respectively, each wrote a short account of his impressions for the Legal Advisory Journal. Of the two, Xu's was the more detailed, beginning with an account of the trip, and dwelling at length on the lavish hospitality of his hosts. What impressed him most, however, was none other than the independence of the Japanese courts. Xu saw the court system in Japan as absolutely inviolable. “The judges rule independently,” he wrote, “with no interference from any quarter…. When they undertake their judicial duties, they are solemn and fair minded, with a lofty spirit of sacred inviolability.” Nor did he stop there. Xu praised the penal facilities in Japan as humane and moral, with good food and rehabilitative activities such as judo and kendo, and he was particularly impressed with the popular understanding of and respect for the law. Praise for Japanese law in each case was tempered by an admission of how far behind Manchukuo remained (HS, November 8, 1934; Xu Weixin Reference Weixin1935, 113; Wang Reference Zhaoxun1935, 132).

Indeed, the problem was less in finding willing Chinese jurists, than in recruiting experienced Japanese to join them. By the late 1930s, investment in legal education and exchanges had created a relatively stable and loyal coterie of local judges, many of whom, such as Waseda-trained Chief Justice Lin Qi 林棨, were already very friendly toward Japan. However, by the time of Furuta Masatake's 1933 “Hire Japanese Jurists Plan” (Nihon shihōkan shōei keikaku 日本司法官招聘計画), all courts were also to include a proportion of Japanese judges and procurators, and for these, demand consistently exceeded supply (Wu Reference Hsin-Che2004, 96–101). A 1934 article in the Tokyo-based Legal News announced large numbers of vacancies for Japanese: more than thirty high court judges, twenty procurators, and a hundred legal secretaries, in addition to instructors at the newly founded Law College to be hired on contracts of three years (HS, August 30, 1934; Wu Reference Hsin-Che2004, 102). In June of the following year, a special call went out for Japanese jurists to staff twenty-four local courts in the provinces of Rehe and Qiqihaer (HS, March 8, 1935). As the number of Japanese judicial officials (judges, investigators, and secretaries) more than doubled, from 152 in 1935 to 342 in 1937, standards necessarily slipped. Nor were they very high to begin with: Japanese jurists in the Kwantung (Kantō) Territory were twice implicated in corruption scandals during 1934–1935 (HS, September 8, 1934; April 28, 1935; June 3, 1935; May 25, 1936; Soejima Reference Shōichi and Yūzo1995, 142). In contrast, Chinese talent trained under Manchukuo auspices was in steady supply. With the prospect of new lawyers graduating from the Manchukuo legal colleges, planners now had the luxury of more closely scrutinizing the native lawyers already at work in Manchukuo, with the first reaccreditation exam scheduled for 1936 as part of the Court Reorganization Law (HS, June 3, 1940).

Corporal Punishment

Certain significant differences did separate the codified law of Japan and Manchukuo, and many of these differences had a distinctly developmental character. Among the most characteristic of these was the selective use of corporal punishment, particularly flogging. Such punishment had a complicated history in the Japanese empire. As part of the drive to end foreign extraterritoriality, Japan had banned the use of corporal punishment on its own soil in 1872 (Botsman Reference Botsman2005, 151, 211–20). However, having gained possession of Taiwan and Korea, it retained and even increased the use of flogging overseas. The use of corporal punishment continued, amid vocal criticism over the use of “barbaric” punishments abroad, until unrest in both colonies during the late 1910s prompted a general softening of military-style rule and a shift toward the cultural “imperialization” policy (Katz Reference Katz2005, 193–213). Thus, it is something of a surprise to see corporal punishment not only continued in the leased Kwantung territory, but also instituted afresh in Manchukuo.

In Kwantung, which in many ways served as a model for Manchukuo, a policy promulgated by special punishment ordinance (batsurei 罰令) in 1907 allowed the commutation of fines of less than one hundred yuan into punishment by flogging. This option was available only to Qing subjects, a provision changed to “Chinese” after the fall of the dynasty, and only to those without land. Echoing sentiments expressed by early proponents of flogging in Taiwan, a 1934 delegation sent to observe the formation of civil and procedural codes in Manchukuo applauded the use of corporal punishment in Kwantung. In a speech made upon his return to Japan, one member of this delegation, Saitō Yūsuke 齋藤悠輔, proclaimed himself “deeply convinced that this is the appropriate punishment for propertyless (lumpen) Chinese men,” presumably because such men would not be affected by the imposition of fines that they could not pay (HS, June 8, 1934).

The use of flogging in Manchukuo was portrayed not merely as a practical measure, but also as a uniquely appropriate one for a culturally backward people. A 1936 article explained that the new law of Manchukuo was based on the spirit of Japanese law, while retaining Manchuria's traditionally “retributivist” (ōhō shugi 応報主義) stance toward criminal punishment (HS, October 18, 1936). A common view, expressed with uncommon directness by Ono Jitsuo 小野実雄 (not to be confused with his closely named contemporary Ōno Jitsuo 大野実雄), was that while the criminal law of Manchukuo was modeled on that of Japan, physical punishment must be retained as a temporary and expedient measure to account for the cultural and economic backwardness of the common Manchukuo criminal:

Such ideas were not universally accepted by Japanese jurists. Writing in 1936, Okamoto Hanshirō 岡本繁四郎 noted an important contradiction in the legal use of corporal punishment: while the original 1907 ordinance had restricted the commutation of fines to flogging to Chinese, the treaty by which Japan had recognized Manchukuo stipulated that all references to “China” in existing treaties be automatically replaced with “Manchukuo.” This created the entirely unacceptable possibility that Japanese settlers in Manchukuo would be subject as well. Comparing various definitions of who might be legally considered Chinese for this purpose, Okamoto found none sufficient to justify the difference in treatment, and concluded that flogging was “uncultured and barbaric.” Having been eliminated in Japan, it should be purged from every civilized country, Manchukuo and China included (HS, July 8, 1936). Yet the very fact that such moral objections by Japanese jurists could go unheeded demonstrates the utility of maintaining Manchukuo's nominal sovereignty. While colonial governance of places such as Taiwan was subject to the moral scrutiny of Japanese public opinion, the putatively independent state of Manchukuo was much more able to avoid or deflect it. The continued use of flogging in Manchukuo, while represented as a temporary concession to the backward nature of the native society, was a penal anachronism that would not likely have been tolerated under direct Japanese rule.

Court Reform and the Abrogation of Extraterritoriality

In a similar manner, the image of Manchukuo's backwardness was used to justify the maintenance of Japanese extraterritoriality. Following the precedent established by Western powers in the mid-nineteenth century, citizens of Japan were, by treaty, not subject to Chinese law; crimes committed in China would be tried either in their home country or by Japanese consular authorities. Despite the legal reforms enacted in China during the late 1920s, Japan remained unwilling to consider relinquishing these rights, as is evident in a 1933 Tokyo court ruling upholding Japanese consular jurisdiction in China (HS, September 25, 1933).Footnote ⁴ Even before the formation of Manchukuo, Japan was by far the largest extraterritorial power in the northeast, directly administering large areas of ceded territory, such as the holdings of the South Manchuria Railway, and employing a particularly aggressive interpretation of consular jurisdiction (Esselstrom Reference Esselstrom2005).

At independence, the new government of Manchukuo gave assurance that existing treaties pertaining to China would be honored, thus retaining the extraterritorial rights enjoyed by Japan and other nations. Officially, the extension of extraterritoriality in Manchukuo was a temporary measure to be upheld only until the local judiciary was brought up to standard, and given that Japan already maintained an overwhelming influence over the government of Manchukuo, the issue of extraterritorial revision might appear to be nothing more than a particularly crass exercise in empty rhetoric. The topic certainly did command a great deal of rhetorical attention in legal publications within Japan before the actual revision in 1937. The reason, however, was that the steps leading up to this moment were a surprisingly wide-ranging enterprise, involving the efforts of numerous individuals in both Manchukuo and Japan, and the systematic reform of the Manchukuo Judiciary.

Just as Manchukuo jurists routinely visited Japan, delegations were sent from Japan to assess the state of the legal system in preparation for the eventual abrogation of extraterritoriality. The first such delegation was organized in 1933 by the Tokyo and Imperial bar associations. It consisted of eighteen representatives from the former and five from the latter, who planned to arrive in late August and remain for twenty days, during which time they were to visit courts and prisons and meet various local officials, including Zhao Xinbo and the not-yet-crowned Pu Yi. Beyond observing, they were also to lay the foundation for what would become the Legal Advisory Society and to gather materials outlining progress in the legal realm (HS, August 15, 1933; August 30, 1933; October 3, 1933). Over the next few years, numerous delegations would follow suit, always with preparing the way for treaty revision at the forefront of their stated goals.

Most of the writing on extraterritoriality in Manchukuo spoke about abrogation in laudatory but consistently vague terms; it is no coincidence that the specific steps or conditions were never clearly spelled out. However, the most definitive step was the 1937 promulgation of new codes. An essay by Matsubara Shigemi 松原重美　(Reference Shigemi1937, 185–86), written soon after the treaty ending extraterritoriality was concluded, categorized the work of legal reform into three parts: the standardization of the judiciary, the compilation of new law codes, followed immediately thereafter by the formal abrogation of extraterritoriality. For Matsubara, the second of these was the watershed moment, the one that finally established Manchukuo as a country ruled by law (hōsei koku Manshū 法制国満州).Footnote ⁵

Those planning treaty revision needed to take into account how such a step would be perceived within Japan, a fact that explains the domestic publicity given to the topic. Beyond the military, Japanese interests in Manchukuo were diverse. Beginning in 1936, the settler movement had sought to coax a million Japanese farmers to emigrate, thereby easing overcrowding at home and providing the foundation for a new Manchurian society (Young Reference Young1998, 307–51). More important, Japanese businesses were very active in Manchukuo, seeking new markets for their own products, but also investing in the development of strategic industries (Hikita Reference Yasuyuki and Kunio2000). The great efforts made to lure Japanese capital to Manchukuo were reflected in the early promulgation of laws regarding banking, investment, and the formation of professional associations. In contrast to the easy dismissal of Okamoto's moral queasiness over corporal punishment, the policy makers planning to abrogate Japanese extraterritoriality were profoundly sensitive to public opinion, particularly those who needed assurance that their investments and persons would remain safe.Footnote ⁶

In a 1934 essay, jurist Minami Tetsutarō 南鐵太郎 attempted to assuage any such fears, repeating a frequently voiced explanation that Japan must demonstrate its good intentions by leading the drive toward abrogation, but also explaining why such a change would have no adverse implications for Japanese. He noted that the entire judicial structure been reformed, that large numbers of Japanese experts had been brought in to guide it, and that all judges would be accompanied by two assistants, one Manchukuo native and one Japanese. Speaking directly to the fears of his audience, Minami asserted confidently, “since a Japanese sitting in a Manchukuo courtroom would in practice receive the same result that he would from a Japanese judge, you must cast off any unease about the abrogation of extraterritoriality” (HS, January 15, 1934).Footnote ⁷

Custom and Family Law

A third manifestation of developmental ideology in Manchukuo was the revision of civil law, in particular family law. Given such pressing issues as maintaining security and attracting Japanese investment (the provenances of criminal and commercial law, respectively), one might reasonably expect civil law to be a somewhat distant concern. However, civil law was an important facet of Japanese colonial jurisprudence, as a conduit for encouraging and shaping cultural integration. Taiwan and Korea both employed criminal law that was more draconian and arbitrary than that used in Japan, yet they adopted what was essentially a Japanese civil code. Colonial civil law did recognize the legal status of “local customs,” albeit as a temporary expedient for the convenience of administration, rather than any principled recognition of native rights. In Taiwan, law concerning land sales, for example, initially respected local customs as legally binding, a policy that necessitated a great deal of investigation into precisely what these customs were. By the late 1920s, however, the complex tangle of graded landownership and usufruct rights had all been leveled into a single category of Western-style ownership. In contrast, apart from those areas where property was concerned, family law did not undergo any such transformation. Largely to streamline questions of inheritance, courts emphasized the Japanese definition of household over the divided authority of the Taiwanese one, but left other specifically Taiwanese arrangements, such as concubinage and adoption practice, untouched (Chen Reference Chao-ju2006; Wang Reference Tay-Sheng2000, 145–69).

In Manchukuo as well, the revision of family law (particularly inheritance law) was equally a matter of acculturation and practical conflict resolution. Here, the line between recognition of custom and development toward a single model was complicated by the fact that Manchukuo was a multiracial state. Despite its name, Manchukuo was not intended and almost never portrayed as a polity reserved specifically for the Manchu people; indeed, official portrayals took great pains to convey the novelty of its multiracial makeup, which consisted of a Han majority, as well as significant Japanese, Korean, Mongol, and other populations, each of which was to be allowed and even encouraged to maintain its distinct culture, religion, and customs. Manchukuo lawmakers could appreciate the problems inherent in substituting racial for local custom by looking at places such as British India, where policies of “cultural federalism,” on the one hand, and the overly aggressive application of a unified code, on the other, had provoked a bitter backlash (Rudolph and Rudolph Reference Rudolph, Rudolph and Larson2001). While lawmakers in Manchukuo made no specific mention of this heritage, they were sufficiently well versed in British colonial policy as to be aware of it, and of the fact that they faced very similar problems. Compared to the small colony of Taiwan, or Korea, which was to be assimilated into Japan, Manchukuo was a more ambitious form of polity, a test case for a new form of Japanese imperialism that could embrace a “Greater East Asia” otherwise too large and diverse for assimilation. As such, lawmakers understood the need to successfully impose unified spiritual principles on a conspicuously multiracial state, a contradiction reflected in the reform of family law.Footnote ⁸

Writing in 1943, jurist Chikusa Tastuo 千種達夫 outlined the basic principles for the role of custom in inheritance law and, by extension, much of family law in Manchukuo. Not surprisingly, his understanding and application of custom was neatly divided by race. For three years, beginning in March 1940, his civil code deliberation committee (minji hōten shingi iinkai 民事法典審議委員会) had traversed Manchukuo, conducting a combination of ethnography and diplomacy and meeting with local leaders of the “five races” to establish the direction of future law making and accommodate a standardized version of racial customs.Footnote ⁹ Chikusa emphasized the delicacy of balancing custom and universal principles, noting that Taiwan and Korea had been wrestling with the problem for decades, and that multiracial Manchukuo would face an even more difficult challenge. At the same time, he felt that certain principles had to be adhered to. Law had to be practical and accessible. Inheritance laws were very real concerns for ordinary people, and even if written in Japanese, they should be translated into simple and easily understood vernacular. Chikusa also felt that laws should also be generally progressive and acceptable to East Asian morality. He did suggest that bad customs should be reformed, but criticized revisions of family law enacted during the 1920s by the Republic of China for having gone too far in this regard, blindly disregarding the Asian patrilineal family in favor of Western ideas individualism and gender equality.

The ostensible compromise was a spectrum of universal principles and racial customs for the various races of Manchukuo. On the one end, Japanese, Taiwanese, and Koreans would continue to operate under the laws of their own countries, although, as with other areas of law following the abrogation of extraterritoriality, these laws would be adjudicated by Manchukuo courts. At the other extreme, the small but politically important “white” (i.e., non-Soviet) Russian population would be ruled entirely according to their own laws. By Chikusa's account, the reason for leaving the Russian population outside the pale was the need to respect the different customs of non-Asian peoples, even within an Asian empire, although the need to court this strategically important community certainly played as role as well. In between these two extremes, the Han, Mongol, and Manchus, who together composed the vast majority of the population, would be subject to a uniform code. The reason given for this was as simple as it was striking: the result of three years of investigations had concluded that these races operated essentially according to the same marriage and inheritance customs. The exception was the Hui population, which, according to this investigation, consisted less of Chinese Muslims than of Arabs and Balkan Muslims, who, like the Russians, lay outside the pale of Asian custom (Chikusa Reference Tatsuo1943a, 1–12).Footnote ¹⁰

Whether the exclusion of the Russian and putatively “Arab” Muslim populations from the progressive reform of law was a rhetorical flourish to emphasize the community within the family of East Asian cultures, or simply a way to explain their de facto autonomy, it is worth questioning why Japanese, Taiwanese, and Koreans would remain divided from the other East Asian races, who were artificially lumped together by virtue of their supposedly similar customs. Obviously, this was at one level simply a nominal transference of Japanese extraterritorial rights under the thin guise of custom. At the same time, it also shows the two faces of customary law as both gradation of civilization and as a civilizing agent, with Japan as both standard and standard-bearer.

Moreover, other configurations of law and culture were also made. In contrast to a family law that combined Manchukuo races by virtue of their similar customs, other laws separated them, with the implication that Chinese and Koreans were to be gradually merged into a Japanese legal world, while others, Mongols in particular, were to be allowed to continue to operate according to “local custom” in perpetuity. This distinction even included the maintenance of special jurisdiction, with banner courts established in September 1937 in the heavily Mongol areas of Xing'an and Rehe.Footnote ¹¹

Even then, Chinese and Koreans were by no means equal to Japanese—the continued use of corporal punishment demonstrated that. But such differences were always portrayed as temporary. When Kwantung finally abolished flogging in 1938, Okamoto Hanshirō (the same person who had two years earlier condemned flogging in any civilized country) attributed the “great strides” the area had made in thirty years to the “strength of Japanese culture” (HS, July 28, 1938). Seen in reverse, this graded civilization would always relegate non-Japanese to a subordinate role. Like any civilizing project, the legal reform of the New East Asian order preached unity while it enshrined difference.