respects worthy of the regard and respect alike of lay educators and the members of the bar who have at heart the dignity and true worth of their profession.

Discussion

Dudley O. McGovney, Professor of Law, Tulane University of Louisi

ana.

It has seemed to me that there has long been a concensus of opinion among progressive law teachers that the function of the university law school is to ground its students thoroughly in the fundamental principles of the law, and how can this be done if it is not taught in a scholarly fashion, if the student is not caused to study it in a thorough-going manner-that is to say, in a scholarly manner? Scholarship in history, in science, in any branch of knowledge, is merely thoroughness of research, pursued with methods appropriate to that branch of knowledge.

The law is a system of rules evolved by society and evolving with the alteration of society. The rules are not hard and fast and clear-cut, for they are rules applied and to be applied to the facts of real life, facts varying both apparently and actually. Our knowledge of these rules tends to become static. The rules themselves seldom do. Almost every rule has a future growth, as well as a past development. A most valuable phase of legal lore to be imparted to a student of any rule of law is its dynamic force. What is the trend of its development? What is the law of the future? The future, of course, is always beginning with the coming moment.

The scope and trend of a rule of law is only felt by a mind versed in its history, in the reason under it, or advanced for it, the soundness of that reason, the character and breadth of the reception the rule has received in recent times, and the state of modern criticism of the reasoning that formulated the rule. It is to the judicial decisions, past and present, that we look for the first-hand, the source, literature on all of these points. Of necessity the student must go to the early cases and to the late; and it seems to me that our so-called national law schools, once called here schools of comparative law, find a chief reason for using the literature of many jurisdictions in this: That the trend of a rule in one jurisdiction affects its trend in another; the criticisms of one court weigh with another. What is the law of one jurisdiction to-day may be the law of many others to-morrow. It has seemed to most of us that the very

nature of the subject-matter that we teach demands scholarship, and scholarship of the highest university type. Certainly this view has prevailed with members of this association, though there have always been and remain differences as to the methods of instruction best adapted to the purpose; and no doubt, too, there are faculties under the control of minds less suited on account of their educational experience to grasp the full meaning of the ideal they profess to follow.

I certainly agree with all that the learned speaker has said in commendation of the scholarly teaching and study of the law. When the speaker came to treat of the recognized danger of a too theoretical teaching of law, and of the elements of the law school wherein this danger lurks, I could not follow with him with the same approval. It seemed to me that the one example of impractical instruction he gave, viz., the young man who came to practice in New York without knowing where to find the most authoritative literature on the subject, was an example of an omission from the curriculum rather than a too theoretical instruction on the part of one or more of his instructors, and yet the gravamen of the danger was alleged to lie in the educational qualification of the individual teacher, and we were especially warned against taking into our faculties any teachers who were not experienced in the practice of law.

The fault was in the curriculum, in the determination of which the whole faculty has a voice, in most of our schools, at least, in an advisory capacity. The fault was an omission from the total subject-matter given out by the faculty as a whole, which should not have existed, even if there were in that faculty one or two teachers who taught their particular quota of that subject-matter in a too theoretical manner.

That a student should graduate from one of our best-known law schools lacking in such commonplace information is truly astonishing. There is not a "closet" teacher or practicing teacher in the country who would not have explained to him that the decisions of the highest courts of New York were controlling there, and final, subject to the exceptions to the rule of stare decisis, had that teacher had exclusive charge of his instruction. As a sole preceptor, he would have imparted that information the first day. There was probably lacking in that school at that time a short set of introductory lectures on the nature and sources of law, the function of the courts, and the relation of the jurisdictions that is doubtless now supplied. Such an introduction is especially necessary in what we term here national law schools, or schools of comparative law, for want of a better name. I prefer to think of them as schools which give a composite picture of the systems of

law of many jurisdictions, systems essentially and in the main the same, with peculiarities that are blurred and dim in the edge of the composite photograph. Mainly we deal with the solid and clear portions of the picture, leaving the dimmer areas to the easy exploration of the trained mind of the graduate.

Perhaps the brief lectures referred to might not prove sufficient. Perhaps in such schools it would be well to require each student to write briefs on points in the law of the jurisdiction in which he is to practice -points of some complexity, on which a variety of positions are taken in different jurisdictions, as, for example, a problem involving the right of the beneficiary of a contract to sue upon it. Such briefing would compel the student to familiarize himself with the statutes and search-books of his jurisdiction. A slight trial of this plan has shown it effective.

The example under discussion serves to warn us that defective legal education resulting from defects in the curriculum should not be charged against any particular mode of instruction, or against a portion of the faculty having a particular type of education. Our faculties are usually made up of men of various types. If matters more practical in character, matters more apt to be known to the practicing professors, or to the teachers who have engaged in practice, are lacking in the curriculum, perhaps the omission is chargeable to their lack of attention to the work of the school as a whole. Examples are not wanting of most admirably equipped teachers, especially practicing members of the faculty, who do not, to borrow the phrase of the principal speaker, "devote themselves unreservedly to the interests of the school."

Let us suppose that the total subjectmatter taught is properly selected and coordinated, and distributed among the teachers, each his quota. Here begins the possibility of individual blame for too theoretical presentation or too theoretical teaching. The speaker has much emphasized the necessity of the teacher's having had experience in practice. It seems to me that he is too sweeping when he demands it for the whole field of private law. He agrees that there is much of practice that should be left for the student to acquire in the office. He says: "No law school, for example, is as well adapted [as the law office] to teaching the apprentice how to prepare a case for trial, or to conduct the trial, or for teaching him how to collect and make use of evidence; and it may be doubted," he says, "whether the law school, when once the first principles are mastered, can ever surpass the law office as a place in which to train students in the drawing of pleadings and the preparation of the various practice papers incidental to a litigation." This view, that there are many matters of practice that the law school

should not undertake, that should be left to be acquired by the student in an office apprenticeship, seems clearly right.

It seems to me that a great deal of time is wasted in many schools, or spent with disproportionate results, in these matters. Doubtless we shall come in time to accept the recommendation of the Section on Legal Education of the American Bar Association that one year's apprenticeship in an office after three years in a law school be required of all candidates for admission to the bar. It is not for these matters of practice that the teachers must have engaged in practice to acquire, according to the view presented, because these are largely omitted from the curriculum. Had the learned speaker insisted upon the requirement in question for the teacher of such matters of practice as the school does present for the teacher of any portion of procedural law, I could quite agree with him. But he includes the whole field of private law, including the substantive law. He would certainly admit that a clear, sound mind, equipped with the analytical faculty, and animated with the true student spirit, could acquire a scholarly knowledge of the substantive law, without engaging in practice. The danger seems to be that this knowledge will be handed on to the student in an overrefined or too theoretical manner.

Now I can conceive of a temperament too philosophical to keep constantly in mind that law is a system of rules made by custom, courts, and legislatures, subject to restatement, but not subject to alteration to suit the philosopher's principles of ethics or love of logic. I can conceive of the too philosophical mind departing from the law as it is to an abstract system that he deems more desirable, with the result that he fails to teach the law in a scholarly fashion, for he does not teach the law at all. The defect of such teachers, if such there be, is one not of education, but one of temperament. I do not believe that such a mind would necessarily be improved for law teaching by years of practice at the bar. The law teacher must be a man of practical imagination, a man mentally in touch with daily affairs; but it seems to me that the practice of law is not a necessary qualification for the teaching of most of the branches of substantive law, for it is not the sole method of keeping one's feet on the ground. In fact, examples are not wanting of well-trained practicing professors who have enjoyed the hour in the classroom as one in which they might give some flight to their views of what the law ought to be, and push logic to its extreme, untroubled by the restraints of court and legislatures.

For procedural law, as a general rule, wide and successful practice seems an absolute requisite, and it would seem that the teacher of procedure and practice should

keeping in close touch with his phase of the law. Yet when one considers the success achieved by a few nonpractitioners even in some branches of procedural law, generalization is seen to be quite fallible. Take the law of simple contracts, or of torts: Wherein does the practitioner's experience improve his ability to impart these branches of law to students over the teacher who pursues the quasi science of substantive law in his closet, it is true, but having in his mind the concrete and the actual? The lawyer has in his own individual practice but few cases compared with those he and the closet student have before them in the books. Certainly, if the closet professor lacks practicalmindedness, he fails. Is it not all a matter of temperament?

It seems to me that there is a confusion here between a practical knowledge of substantive law and a knowledge of the practice of law. It seems to me that the branches of substantive law are branches of a quasi science, which may be acquired by scholarly research and taught in a scholarly and practical manner by a sane and scholarly student, though he may not have engaged in practice, and that if he has acquired poise and experience in practical affairs, and is mature when he graduates, it would be a waste of time to engage in practice, provided it is his intention to confine his life study to some portion of substantive law.

I am very much afraid that the preference shown in the address to the practitioner and even to the teacher who continues in practice may be harmful in some localities, where practitioners with the appropriate educational experience are still difficult to find. I have gone further to criticise the view advanced as extreme even for more favored localities.

Of course, no one would understand me to advocate that mere graduation from a good law school is a sufficient qualification for teaching law. In the main the schools have selected men of maturity, of broad general education, and of more than the usual experience in business or in the art of teaching-an art they have often acquired in teaching other subject-matter; but it must be remembered that principles of pedagogy are fundamental and universal, applicable to law as to other branches of knowledge, though often ignored in the law school. I am conscious that I have commented only upon fragments of the very able address of the principal speaker. It would be useless to add weightless approval to so much that he has forcefully said. It has given me personal displeasure to find myself differing from him on some of the points I have discussed; but, feeling that it is the object of our meetings to hear as nearly as may be all sides of a question, I have felt it my duty to express myself.

Japan

By BARON UCHIDA

Japanese Ambassador to the United States

It was little more than a year ago that Prof. Vance first came to Washington to invite me to address your Association on the subject of Legal Education in Japan. The invitation gave me pleasure, for I have always felt that a part of that mutual understanding which it is so desirable should subsist between nations must necessarily be a knowledge of each other's legal institutions. Yet I could not but feel a certain lack of qualification to speak on the subject before an audience so learned and distinguished as this was certain to be, because it had been twenty-four years since I was graduated, as a student of Political Science and Public Law, from the Imperial University of Tokio, and twenty-four years is long enough to give one a suspicion that he might be slightly alienated from his subject.

I suggested to Prof. Vance that I be allowed time to prepare myself with information as to the later advances of legal education in my country, a suggestion to which he kindly acceded. For that information I then repaired to my earliest preceptor in law, to-day the most eminent jurist in Japan-Dr. Nobushige Hozumi. Thanks to his ever kindly interest in his old pupils, Dr. Hozumi readily responded to my appeal. It is with less diffidence, therefore, that I am able to-day to appear before you for an address the materials for which I owe in the main to the authority of this learned scholar of Japan.

I. Legal Education in Early Times

Let us begin by broadly blocking out the periods into which the evolution of law in Japan divides itself. There would be, naturally, three:

First, from the foundation of the Empire to the introduction of Chinese civilization; Second, from that moment to the introduction of Western civilization; and

Third, from that moment to the present. The first period was, and may be called, the period of unwritten law. During this stage, the people were governed by clan customs and oral traditions. In a society so governed, there could, of course, be no systematic study or education in law. In some societies, indeed, the germ of legal education is found in the practice of memorizing the words of old men and handing down the traditional account of customs. But in Japan remains no trace of this, though the practice of reciting memorized historical stories can be traced.

Only with the introduction of Chinese cul

ture, therefore, can the history of legal education be said to begin. In the great social reformation of the Taikwa era, in the years 645-649 of the Christian era, laws were framed and institutions were founded modeled largely on those of the Ton dynasty of China. It is interesting to note that as early as the year 671 A. D. a code of laws (it was called Omi-ryo) was framed, though not published.

Eighteen years later was promulgated the code compiled by the Emperor Temmu in 22 Books of Laws called Ryo. Finally, the celebrated Taiho code was promulgated, in the year 702 A. D. The Taiho code consisted of 17 books, 11 of which, called the Ryo, included all statutes of public and civil character, while in the remaining 6, call the Ritsu, was contained the criminal law. In the year 710 this code was amended, and the Ryo and Ritsu were made to consist of 10 books each.

The publication of these and other codes during this epoch gave rise to the necessity of interpretation, and, to this end, to the education of interpreters-professional jurists. Here began actual legal education. Its first form was in the shape of an enlargement of the University Bureau which formed part of the governmental Department of Ceremony. This bureau, which already had sections of Philosophy, History, and Mathematics, now added a section of Jurisprudence. Its preceptors were two Masters, or Doctors, of Law (Myoho-Hakase or Ritsugaku-Hakase), whose official duties were to interpret the codes and give opinions on legal matters, as well as to instruct and examine law students; the object of the instruction and examination being to train up official interpreters of the law.

This office of legal interpreter gradually tended, like other offices, to take on an hereditary character, and by the year 1100 A. D. it had become a perquisite of the families Nakahara and Sakanouye, so continuing for several hundred years.

Under such conditions, real instruction in jurisprudence died out, the more so because now the land was torn by frequent civil wars, following the establishment of the feudal system under the military government of the Shogun.

At the end of the sixteenth century, the Tokugawa family raised the Shogunate to unexampled power and brought the country to order, in which it continued for nearly 300 years a time productive in new legislation and codification. One of the most noteworthy was the famous criminal code known as Kyakkajo, or "The Hundred Articles."

Yet it cannot be said that legal education revived during this period. It was the policy of the Tokugawa government to keep most of the laws, especially the criminal statutes, in strict secrecy. They existed only in rare manuscripts, were allowed neither to be

printed nor published, and none but judges and officials were allowed to read them, or the records of precedents built upon them. The Criminal Code carries at its end the following injunction:

"The above rules have been established with His Highness' gracious sanction, and nobody except the magistrates shall be allowed to peruse them."

The Chinese did not entertain the idea that publication was essential to the validity of law. There is a famous Chinese maxim, "Let people abide by the law, but not be apprised of it," or, as some understand it, "People can be made to obey, but cannot be made to know." The Tokugawa Shoguns adopted the doctrine, so that they might rule the people in a state of ignorance. It is hardly necessary to say that legal education would not flourish under such conditions.

II. Legal Education Since the Restoration

We come now to the gigantic changes wrought by the influx of thought trom the Western world. It would be a waste of time even to outline, before such an audience as this, the far-reaching social transformation which Japan began to undergo half a century since. It is enough to say that the abolition of the feudal system, the Restoration of the Imperial Government, and the grafting of the Western culture upon Japan's ancient institutions could not wait upon the raising up in Japan of a class of educated legal minds. The drafts of the new laws immediately made necessary by rapidly changing conditions were made chiefly by French and German jurists. The changes were so sudden and complete that legislation of the most sweeping character was necessary to keep pace with them. Wholesale advantage was therefore taken of the codes of other nations. And yet, from the very beginning, a new education in law went hand in hand with the adoption of new laws.

A chief part in this new education was taken by what is now the Imperial University of Tokio, and at this point I may as well take a few moments in which to sketch the origin of this institution:

During the Tokugawa period, the country, as every one knows, was closed; the only intercourse with the rest of the world being through the few Dutch who were permitted to live on the little isolated island of Deshima in the harbor of Nagasaki. Inquiries made early in the eighteenth century by Arai Hakuseki concerning Holland and Rome gave rise to the introduction of some fragments of Western learning-medicine and astronomy especially. In 1744 an observatory was set up. In 1811 a Translation Bureau was established in connection with the observatory. In 1856 this bureau was given an independent existence, under the style "The Institute for the Study of Foreign Books,"

and it was now directed to translate Dutch books and to teach the Dutch language. Later, work was done in English, French, German, and Russian.

This may be said to have been the germ from which sprang the Imperial University. The Institute was closed for a time in 1868 during the civil war which attended the Restoration. After that event, the University (the Daigaku) was established, and the Institute for the Study of Foreign Books reopened as the South College (Daigaku-Nanko), being now devoted to the study of the English, French and German languages.

Upon the founding of the University, a programme of instruction was determined, and it included a course in law. But it was not till 1874 that instruction in law was actually begun, the previous five years having been devoted to preparatory instruction. The teaching of law was carried on in English, and the first teachers were Americans, though there were also Japanese teachers who imparted instruction in the old Japanese and Chinese law. It is of interest to note in passing that Marquis Komura, the present Foreign Minister, was one of the nine students who first received instruction in English law in the new University.

At the close of the first year of instruction, three students were selected from the first class to be sent to the United States to continue and complete their studies. They were Komura and Kokuchi (now an advocate and a member of the House of Peers), who studied in the Harvard Law School, and Hatoyama (now an advocate and a member of the House of Representatives), who studied at Columbia College.

The following year, three students were sent to England: Okamura, Sagisaka, and Hozumi, whom I mentioned in beginning this address. These three entered the Inns of Court and studied at the Middle Temple. After being called to the English bar, Sagisaka was sent to Belgium, and Hozumi to Germany, to pursue still further legal studies in those countries.

In every year since, a certain number of law students, on graduating from the home University, have been sent to America or Europe to carry on these studies, and most of these men on returning home become members of the teaching staff in the Law Faculty either of the Imperial University or some other school.

Let it be recalled that the legal course in the Imperial University was in English law. Now, side by side with this, there grew up a School of French Law, conducted as a section of the Department of Justice. It was opened in 1874-the year in which, as we have seen, the English Law School of the University opened. Instruction was under the direction of Professor Boissonade and another French jurist; and in 1875, the year when the University began sending law stu

dents to America, the Department of Justice school began sending students to France. The existence of these two schools of lawone English and the other French-had, we shall see, an important effect on the future legal history of Japan.

In 1885 the French Law School was incorporated with the University.

In 1887 a German Law Section was established. Thus there was built up in the University a Law Department, consisting of three sections, each devoted to the law of a Western nation, besides a fourth sectionthat of Political Science, which had been transferred from the Literary Department in 1885. To these were recently added a fifth and a sixth section, namely, of Ecomomics and Commerce. By Imperial ordinance in 1886 the course of law was fixed at three years; in 1892 it was extended to four years. The year 1897 saw the founding of another Imperial University, at Kyoto, by Imperial ordinance of June 18. Instruction in law was begun here in 1899. The Kyoto University College of Law is divided into the two sections of Law and Politics; the Law Section being subdivided into three branches of English, French, and German law-as at Tokio. There are no foreign professors in the Imperial University of Kyoto, but most of the faculty are graduates of the Imperial University of Tokio who have studied abroad.

Besides the two Imperial Universities, there are in Japan eight law schools of private establishment. You may be interested to hear their names:

Hosei Daigaku, founded in 1879;
Meiji Daigaku, founded in 1881;
Waseda Daigaku, founded in 1882;
Chiuo Daigaku, founded in 1883;
Kwansei Daigaku (Osaka), founded in
1886;

Keio Daigaku, founded in 1897;
Nippon Daigaku, founded in 1897;
Kyoto Hosei Daigaku, founded in 1900.

III. Admission to Law Schools

You will want to know something of the courses of study pursued in Japanese schools of law, but, first, I should speak of the qualifications for admission.

The admission requirements insisted on by the Imperial University are higher than those of the law schools of private establishment. For admission to the University Law School candidates must have passed through the six years' course of the Primary School, the five years' course of the Middle School, and the preparatory course of three years in the High School. But for admission to the private law schools it is necessary only to have graduated from the Middle School or to have completed a year and a half more of preparatory study. So that there is a difference, in some cases of a year and a half, in other cases of three years, in the qualifi