Law Codification in East Asia Today: Japanese and Indian Examples
Résumé
From a comparative point of view, the Asiatic continent seems, prima facie, to illustrate the decline of the innovative force of the law codification process: contrary to Europe or to America (Quebec, Brazil which have adopted new civil codes in 1991–1994 and 2002–2003, Argentina where drafts of Civil code have been recently elaborated and discussed, with a vote of the Congress expected for March, 2013), Asia does not offer many recent examples of new promulgated codes, as if this “global way” of changing law (and the perception of law among peoples) were now an exhausted technique, belonging to a remote past, the one of massive legal transplants from the Western World, that would be finished in a over-dynamic East Asia. However, there are some exceptions: the new Cambodian Code of Civil Procedure (2006–2007) and Civil Code (promulgated on 2007, in force since December 2011), which are also interesting examples of a legal cooperation between Cambodia and Japan; the Vietnam Civil Code promulgated in 1995 and amended in 2005 whose writing has been made with the advice of a French expert, the judge Pierre Bézard. Enlarging the comparison from a strict definition of East Asia to a larger area, including Southern East Asia, I would like to focus on some questions relating to old and new codes, to reform and revision processes, such questions being common to Eastern and Western legal systems.
We have chosen here to focus on the situation of law codification in Japan and in India: there are two leader countries in Asia, the former being a civil law country with a strong tradition of codification, which is likely today to develop an international expertise through legal transplants (as the Cambodian example has shown); the latter considered as a common law country, but historically endowed with different types of “codes” or “consolidated laws” inherited from the British codification and various debates about projected codes. Our main question concerning Japan and India will be the actuality of the notion of legal codification.