Ume Kenjirō and the Making of Korean Civil Law, 1906-1910

Author(s): Marie Seong-Hak Kim

Source: The Journal of Japanese Studies , Winter, 2008, Vol. 34, No. 1 (Winter, 2008),
pp. 1-31
Published by: The Society for Japanese Studies

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MARIE SEONG-HAK KIM

Urne Kenjir? and the Making of Korean Civil Law,

1906-1910

Abstract: In 1906 It? Hirobumi invited Urne Kenjir? (1860-1910), a drafter

of the Meiji Civil Code, to oversee the creation of a modern legal system in
protectorate Korea. Ume's legal reform, which focused on writing a Korean
civil law and establishing modern judicial administration, was imbued with
nineteenth-century natural law theory, and it proceeded under the assumption of
the continuing existence of an independent Korea. Cut short by annexation,
Ume's saga in Korea highlights the insight and tensions underlying colonial
legal reform and presents a powerful case that legal development under Japan
ese influence needs to be considered from a perspective detached from the na
tionalist paradigm.

"It is the tragedy of modern Korean legal history," lamented the prominent
Korean scholar Hahm Pyong-Choon, "that every step of the 'reforms' and
'modernization' was accompanied by a progressive loss of national inde
pendence."1 The fact that the establishment of modern law and a modern le
gal system in Korea was imposed by the Japanese, he argued, created a
tremendous amount of ill will among the Korean population against the
Westernized legal system, identified with much-resented Japanese rule, and
it adversely affected postindependence legal development in Korea. This

An earlier version of this paper was read at the Midwest Japan Seminar held in February
2007 in Memphis. I would like to thank James D. Tracy, University of Minnesota, for obtain
ing many materials that were essential for writing this article. I am also grateful to Oka Takashi
at Gakushuin University Law School and Mizuno Naoki in the Institute for Research in Hu
manities at Kyoto University for their support during my research in Japan. Special thanks are
due the anonymous referees at The Journal of Japanese Studies for their helpful comments and
suggestions.
1. Hahm Pyong-Choon, "Korea's Initial Encounter with the Western Law, 1866-1910
A.D.," in Korean Jurisprudence, Politics and Culture (Seoul: Yonsei University Press, 1986),
p. 136 (first published in Korean Observer, Vol. 1, No. 2 [January 1969]).

1
Journal of Japanese Studies, 34:1
? 2008 Society for Japanese Studies

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 2 Journal of Japanese Studies 34:1 (2008)

insightful observation, made nearly 40 years ago, may have lost some of its
relevance today as Western legal values and institutions have pervaded
modern industrialized Korea. Its diagnosis of one of the thorniest dilemmas
in Korean legal history remains nonetheless as pertinent as ever. In Korean
scholarship, the view that legal changes that took place under Japanese in
fluence were essentially geared to promote Japanese colonial interest has
proved largely unyielding. Reluctant to challenge the validity of the pre
vailing nationalist framework, many historians have shied away from dis
cussing the significance of legal reforms initiated by the Japanese in colo
nial Korea.2 But sweeping dismissal of Japanese-pursued legal reforms as
mere tools of imperial domination obscures an understanding of Korea's le
gal past, effectively condemning Korean legal historiography to be dictated
by the colonial perspective.
Hostility toward colonial law and legal regime is in large part grounded
in the fact that the colonial military government imposed Japan's laws and
other repressive measures on Korea as a means to facilitate colonial control.
Yet significant attempts by Japan to implement modern legal reform took
place before Korea became its formal colony in 1910. It? Hirobumi, the first
resident-general between 1906 and 1909 (the treaty establishing the Japan
ese protectorate was signed on November 17, 1905), instigated a series of
changes to modernize Korea's law and legal system, claiming that legal re
form was the key to his Korean policy. It? remains one of the most intrigu
ing figures in Korean-Japanese relations. Uncertainty surrounding his real
intentions in Korea, that is, how much credence should be given to his re
peated declarations on Korean independence, has continued to vex histori
ans. Moriyama Shigenori has argued that It? did not believe, at least before
1909, in the need for immediate annexation.3 He explains that It?, like other
Japanese politicians, "viewed annexation as an ultimate goal, but it was af
ter all a future problem" (emphasis in the original) for him, and that It? in
stead regarded as a more pressing task the consolidation of Japan's influence
over Korea free from other countries' intervention.4 Moriyama is reluctant

2. Carter Eckert, "Epilogue: Exorcising Hegel's Ghosts: Toward a Postnationalist Histo

riography of Korea," in Gi-Wook Shin and Michael Robinson, eds., Colonial Modernity in
Korea (Cambridge, Mass.: Harvard University Asia Center, 1999), pp. 365-78.
3. Moriyama Shigenori, Kindai Nikkan kankeishi kenky?: Chosen shokuminchika to
kokusai kankei (Tokyo: Tokyo Daigaku Shuppankai, 1987), and Nikkan heig? (Tokyo:
Yoshikawa K?bunkan, 1992).
4. Moriyama, Kindai Nikkan kankeishi kenky?, p. 201. Citing this statement in Moriyama,
Stewart Lone translated "ky?kyoku no mokuhy?" as "an extreme goal," to mean that "until
1909 It? and the Japanese leadership regarded annexation as an extreme step to be held in
reserve." Lone, "The Japanese Annexation of Korea 1910: The Failure of East Asian Co
Prosperity," Modern Asian Studies, Vol. 25 (1991), p. 144 (note 4). A more precise translation
would be "an ultimate goal." Moriyama appears to mean that It? and others recognized
annexation as an eventual goal for the future but not an immediate task.

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 Kim: Urne Kenjir? 3

to assent to the view that the resident-general's "nurturing self-rule policy,"

including efforts to modernize the Korean judiciary and promote the de
velopment of the Korean economy and industry, was merely dissimulation
of the wily statesman to hide his true intent to colonize Korea.5 Moriyama
thus tries to strike a balance between the view rationalizing It?'s position
in Korea as one of sensible realism and the view disregarding It?'s Ko
rean policy as hypocrisy disguised under legalism in a bid to take over
Korea.6
Part of the confusion surrounding It?'s Korean policy arises from the
fact that he, a consummate politician, carefully guarded his sentiment and
deliberately kept his goals enigmatic. Instead of speculating on It?'s inten
tions, this essay attempts to examine the legal developments in protectorate
Korea through the activities of a jurist who was entrusted with overseeing
legal reforms in Korea. In 1906 It? invited Urne Kenjir?, professor of civil
law at Tokyo Imperial University and one of the drafters of Japan's Civil
Code, to become legal adviser to the Korean empire to lead the formation of
a modern legal system. Ume's work in Korea during the next four years cen
tered on building a modern court system and creating new codes. Both ob
jectives, fully supported by It?, presupposed the existence of an independ
ent Korea and proceeded under the assumption of Korean autonomy.
Ume's legislative reform in Korea is remarkable not only because it
provides a critical vantage point from which one can assess the nature and
scope of Japan's legal undertaking in Korea but because, more broadly, it
illuminates different facets of ideological conceptualizations of imperial
Japan as a modern legal state. The question of how Japan should frame legal
relations with its overseas territory had a significant bearing on the percep
tion of Japan's national identity. As one of the most influential technocrat ju
rists of the time, Ume was a prominent advocate of the extension of funda
mental rights prescribed in the Japanese constitution throughout the empire.
Oguma Eiji has pointed out that Ume was one of the few Meiji intellectuals
who discussed colonial assimilation in the purely legalistic constitutional

5. Moriyama Shigenori, "Hogo seijika ni okeru shih? seido kaikaku no ri?en to genjitsu,"
in Asano Toyomi and Matsuda Toshihiko, eds., Shokuminchi teikoku Nihon no h?teki k?z?
(Tokyo: Shinzansha, 2004), p. 292; Moriyama, Kindai Nikkan kankeishi kenky?, p. 197.
6. Hilary Conroy argued that the annexation in 1910 marked the defeat of the Meiji lib
erals and the failure of It?'s realist policy. Conroy contended that It? was opposed to
colonization and intent on building Korea into an independent and reliable ally by hastening
reforms in Korea. Conroy, The Japanese Seizure of Korea, 1868-1910: A Study of Realism and
Idealism in International Relations (Philadelphia: University of Pennsylvania Press, 1960);
Peter Duus, The Abacus and the Sword: The Japanese Penetration of Korea, 1895
1910 (Berkeley: University of California Press, 1995). Dong Wonmo, "Japanese Colonial
Policy and Politics in Korea, 1904-1945: A Study in Assimilation" (Ph.D. diss., Georgetown
University, 1965), criticizes Conroy and argues instead that It? was consistently in favor of
annexation.

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 4 Journal of Japanese Studies 34:1 (2008)

meaning of electoral rights of the native population.7 Ume supported legal

assimilation in terms of the spread of enlightened principles of private prop
erty and equal rights, distinct from cultural assimilation. He was mindful of
the importance of indigenous cultural practices and popular customs for
regulating private relations in a colony. Ume contended that Korean people
should be governed by modern laws drawn up in the model of the codes of
civilized countries, but he also clearly warned against the wholesale en
forcement of Japan's laws on the peninsula without consideration of Korea's
legal tradition and practices. Ume's legal arguments represent an important
perspective in the intellectual debate over the nature of Japan's colonial em
pire, in continuity with the liberal tradition of Fukuzawa Yukichi and later
Yoshino Sakuz? and Yanaihara Tadao.
The Korean campaign Ume undertook was grounded upon his analysis
of the Japanese experience of legal modernization undergone only a few
decades earlier. But his opposition to the demand by most contemporary Ja
panese scholars and politicians for quick imposition on Korea of the Japan
ese Civil Code indicates that his legislative goal in Korea was something
more than duplicating the making of Japan's civil law. His determination to
create a modern civil code for Korea, against all political odds, suggests his
belief that the Japanese Civil Code he had helped write fell short of his ju
ridical ideals. Ume's reform in Korea was characterized by elements of
nineteenth-century liberal individualism in the Pandectist legal tradition and
of natural law theory, of which he was a leading proponent.8 It indicates that
he viewed the writing of the Korean civil code as a crucial opportunity to
bring to fulfillment his liberal legal ideals without being restrained by the
kind of virulent objections from conservative forces that Japan had experi
enced. The Korean codification efforts by Ume represent an important ide
ological nexus between Japan and Korea that allows a comparative approach
to legal modernization in the m?tropole and in the colony.
What Ume achieved, and also failed to achieve, in Korea can thus shed
light on both theoretical construction and practical implementation of Ja
panese colonial legal policy. How did Ume perceive the evolution of Japan
ese goals in Korea between 1905 and 1910? What was his role in creating a
modern legal regime in Korea? These are important questions that can be

7. Oguma Eiji, "Nihonjin" no ky?kai: Okinawa, Ainu, Taiwan, Chosen shokuminchi shi
hai kara fukki undo made (Tokyo: Shin'y?sha, 1998), p. 131; see also pp. 129, 177, 250.
8. Ume's legal thought in relation to contemporary European legal philosophy requires a
separate study. He acknowledged that he had been profoundly influenced by German Pandec
tists such as Bernhard Windscheid (1817-92) and Rudolf von Jhering (1818-92). Ume,
"H?ritsu no kaishaku," Taiy?, Vol. 9, No. 2 (1903), pp. 56-62. Ume's view of the legal and
philosophical bases for a revival of natural law and practical and functional jurisprudence pro
posed by Fran?ois G?ny (1861-1959) and Raymond Saleilles (1865-1912) needs in-depth
analysis. Ume declared: "I forever believe that the natural law school's theory is correct."
Minp? genri (Tokyo: Shinzansha Shuppan, 1991), p. 2.

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 Kim: Ume Kenjir? 5

accurately explained only when considered in the context of his legal phi
losophy and juristic activities in Japan. In extant studies of Ume, however,
there is an almost complete break between Ume in Japan and Ume in Korea.
While Ume is much respected in Japan for his role in civil law codification
and his liberal juridical ideas have been the subject of sustained interest
among Japanese legal scholars, his role in Korea has largely been ignored.
Of late, Yi Y?ngmi, a Japan-based Korean scholar, has closely documented
Ume's activities in Korea and argued that his legal reform efforts laid the
foundation for the modern Korean judicial system.9 Yi's study narrowly fo
cuses on the progression of Ume's legislative campaign, with little reference
to his earlier work in Japan. Ume's legal thought has rarely been analyzed
in the context of Korean annexation, and he has received only cursory treat
ment by Korean historians.10 His admiration for Korea's advanced culture,
sympathy for the plight of the Korean people, and quiet sense of moral out
rage against Japanese territorial aggression are little known in Korea. In
stead, Ume's attempt to create a modern civil law regime in Korea has sim
ply been viewed as part of Japan's imperial policy, facilitating Japanese
economic advances and political control of the peninsula.11 There is no
study of Ume in Western languages.12

9. Yi Yongmi, Kankoku shiho seido to Ume Kenjiro (Tokyo: Hosei Daigaku Shup
pankyoku, 2005).
10. See Oka Takashi, "Meiji minp? to Ume Kenjiro," H?gaku shirin, Vol. 88, No. 4
(1991), pp. 3-47; Nait? Masanaka, "Kankoku ni okeru Ume Kenjiro no ripp? jigy?," Shimadai
h?gaku, Vol. 25, No. 3 (1991), pp. 1-26; Ch?ng Chonghyu, "Ume Kenjiro to Kankoku kindai
ripp? jigy?," H?ritsu jih?, Vol. 70, No. 7 (1998), pp. 57-61. Although only a few pages, one
of the best analyses of Ume's legal thought in relation to Korean annexation is ?kawa Sumi?,
"Gaikokujin no shiken to Urne Kenjir?," Ritsumeikan h?gaku, No. 253 (1997), pp. 474-86
(part I), and No. 255 (1997), pp. 993-1028 (part II).
11. Ch?ng Chonghyu, Kankoku minp?ten no hikakuh?teki kenky? (Tokyo: S?bunsha,
1989); Chulwoo Lee, "Modernity, Legality, and Power in Korea Under Japanese Rule," in Shin
and Robinson, eds., Colonial Modernity in Korea, pp. 21-51; Ch?ng K?ngsik, "Ilbon ?i
kwans?p chosa wa k? ?i?i," in Hanguk k?ndae pop sa ko (Seoul: Pagyongsa, 2002),
pp. 205-57; Ch'oi W?n'gyu, "Taehan cheguk kwa ilche ?i t'oji kw?n pop chej?ng kwaj?ng
kwa k? chihyang," Tongbang hakji, Vol. 94 (1996), pp. 111-68; Yi Sangwuk, "Hanguk sang
sok pop ?i s?ngmunhwa kwaj?ng" (Ph.D. diss., Ky?ngbuk National University, 1986).
12. The only biography of Ume, written nearly a hundred years ago, is Higashikawa
Tokuji, Hakushi Urne Kenjir?: denki Urne Kenjir? (1917; repr. Tokyo: ?zorasha, 1997). Ume's
papers are housed in the H?sei University Library and are becoming available online: http://
www.hosei.ac.jp/general/lib/rare/Top.html (accessed June 12, 2007). I am grateful to the li
brary staff for allowing me to consult the original documents. For a comprehensive list of
Ume's papers, see Ume Monjo Kenky?kai, ed., Ume Kenjir? monjo mokuroku: H?sei Daigaku
Toshokan shoz? (Tokyo: H?sei Daigaku Boason?do Kinen Gendai H? Kenky?jo, 2000). Most
of Ume's extant writings are compiled into a five-volume CD set, Urne Kenjir? chosaku zensh?
shibidan, edited by Oka Takashi (Tokyo: Maruzen, 2000). The annotated list of Ume's writings
is provided in Oka Takashi and Edo Keiko, "Urne Kenjir? chosho oyobi ronpun mokuroku:
sono shojigakuteki kenky?," H?gaku shirin, Vol. 82, Nos. 3 and 4 (combined) (1985),
pp. 137-214. See also the articles in Waga minp? no chichi Urne Kenjir? hakushi kensh?hi kon
ry? no kiroku (Matsue: Urne Kenjir? Hakushi Kensh? Kinenshi Hensh? Iinkai, 1992).

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 6 Journal of Japanese Studies 34:1 (2008)

Ume's saga in Korea, cut short by annexation and his own death on
August 25,1910, three days after the annexation treaty was signed, presents
a powerful case that the Japanese-initiated legal reforms need to be consid
ered from a perspective detached from the nationalist paradigm. Alexis
Dudden has argued that the Japanese legal reforms were prompted by the re
alization that "if [the Japanese] were to gain full legitimacy in Korea as an
enlightened exploiter, they should establish new legal codes in their protec
torate," and that Ume's legislative effort in Korea was nothing more than an
example of Japan's "performative display" of legalism.13 But the view that
Japan undertook modernizing Korean law merely to demonstrate its civiliz
ing mission to other imperial powers appears overly simplistic and is often
in conflict with empirical evidence.
It has been pointed out that a major problem in the historiography of
Japanese colonialism is that it relies overwhelmingly on Japanese colonial
sources and that historical writing of the Korean colonial period tended to
come precariously close to reproducing versions of Japanese colonial dis
course.14 One should be duly wary of the self-justifying colonial claims of
modernization. But rejecting colonial rhetoric need not obscure the signi
ficance of legal developments during this period. Colonial discourses, such
as diffusive celebrations of legal reforms in Korea in annual reports pub
lished in English, were just what they were meant to be: colonial propa
ganda.15 The nature and reach of legal modernization in Korea requires a
detached approach, swayed by neither condonation nor condemnation of
colonialism. This essay aims to discuss Ume's Korean venture in the context
of the evolution of his juridical ideas and the unfolding of Japan's legal pol
icy in Korea.

'Tt?'s Tribonian"

After the Kabo reform period (1894-96), the Korean imperial govern
ment (Taehan Cheguk) undertook a series of attempts to codify Korean
laws.16 The only private laws in existence were a few disparate provisions
in Hy?ngp?p taej?n, a criminal code. The need for a uniform corpus of civil
law was heightened by the demands that Korea, as a condition to having the

13. Alexis Dudden, Japan's Colonization of Korea: Discourse and Power (Honolulu:
University of Hawai'i Press, 2005), pp. 100-102.
14. Andre Schmid, "Colonialism and the 'Korea Problem' in the Historiography of Mod
ern Japan: A Review Article," Journal of Asian Studies, Vol. 59 (2000), p. 952.
15. Annual Report on Reforms and Progress in Korea (Seoul: Resident-General of Japan,
1908-10); Annual Report on Reforms and Progress in Korea (Seoul: Government-General of
Chosen, 1911-22).
16. Ch?ng Chonghyu, "Hanmal ?i s?gup?p kyesu: minp?phak ?l chungsim ?ro,"
Ch?nnam Taehakkyo nonmunjip (Pop, haengj?nghakp'y?n), Vol. 32 (1987), pp. 118-19.

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 Kim: Ume Kenjir? 7

unequal treaties revised, enact modern codes. As they had done for China and
Japan, Western nations contended that extraterritoriality was necessary be
cause of the deficiencies of indigenous law. Before the Korean empire's
efforts to implement a modern legal system could yield any real results, how
ever, Korea became Japan's protectorate.
It was in this situation that It? recommended Ume to the Korean cabi
net to assist with the codification of laws. It? emphasized that Ume was "an
authority in law second to none, either in Japan or in the West," and that
"Ume's works are used as textbooks in France." Ume was different, said It?,
from typical foreigners who were loitering in Korea looking for jobs; Ume
graciously agreed to share his expertise with Koreans in legislative activi
ties.17 It has often been erroneously believed that Ume was dispatched by
the Japanese justice ministry to work at the residency-general.18 But Ume
himself said, "I came to Korea not as a counsel to the residency-general but
at the request of Mr. It?. Officially I was a counsel to the Korean govern
ment."19 Since 1903 Ume had served as the president of H?sei University,
successor of Wafutsu Law School, in addition to his professorship at Tokyo
Imperial University. During his four-year effort to reform Korea's legal
system, from July 1906 until August 1910, Ume continued to reside in Ja
pan but returned to Korea regularly during the university breaks in summer
and winter. The fact that he was not a resident adviser indicates that he was
little involved in the politics of the residency-general and that his legisla
tive activities took place largely outside Japan's political dealings with the
peninsula.
It?'s selection of Ume cannot be understood without considering the
special relationship between the two. Ume had enjoyed It?'s profound trust
for some time. Born on June 7,1860, in Matsue, in what would become Shi
mane Prefecture, as the second son of a doctor in service of a local lord,
Ume graduated from Tokyo Foreign Language University's French Depart
ment. Despite childhood poverty due to the fall of the samurai class that
directly affected his family, Ume received the finest education available in
the early Meiji period. In 1880 he entered the Justice Department Law
School, which later became part of Tokyo Imperial University Law School.
In December 1885 he received a government scholarship and left for France
to study at the University of Lyon. He received a doctorate in law in July
1889 with a dissertation entitled "De la transaction." His thesis received
the highest honor and was published the same year in Paris, paid for by

17. Kim Ch?ngmy?ng, ed., Nikkan gaik? shiry? sh?sei, Vol. 6 (Tokyo: Gannando, 1964),
Parti, pp. 220-23.
18. Dudden, Japans Colonization, p. 112.
19. "Kitsuy? seru Ume hakushi no seikandan," H?ritsu shinbun, No. 386, October 30,
1906.

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 8 Journal of Japanese Studies 34:1 (2008)

the city government of Lyon.20 Ume was very much a product of the
mid-nineteenth-century revival of Roman law during which European ju
rists saw the central principles of Roman law as expressions of the materi
alist values of a bourgeois society. Ume's doctoral dissertation on transac
tion, the Roman law principle of settling a suit or controversy between
litigating parties without referring it to arbitration or trial, represented this
trend to turn to the potential of Roman law to deal with modern problems.21
After one year of study in Berlin, Ume returned to Japan in August 1890 and
was appointed to the Faculty of Law at Tokyo Imperial University.
At the time of Ume's return, Japan was embroiled in a fierce debate
over the fate of the civil code drafted by Gustave Boissonade de Fontarabie
(1825-1910). Boissonade, a French jurist who had been invited to Japan as
a legal adviser in 1873, submitted the completed civil code to the government
in 1890; it was scheduled to take effect in 1892. But the Boissonade code met
strong resistance from those who claimed it was a mere compilation of
Western laws having little connection to Japanese tradition and indigenous
customs and who demanded its promulgation be postponed.22 Fresh from
Europe, Ume vigorously advocated immediate enforcement of the civil code.
He repudiated Hozumi Yatsuka's contention that the civil code was anti
Japanese and antitradition. Hozumi claimed that the code was based on
Christian and individualistic premises and that protecting people's rights
would weaken the family system.23 Ume mused over Hozumi's contention
that Christianity taught disrespect to parents: "I am not a Christian, nor do I
wish to advocate Christian views, but as scholars we must get things straight.
Christianity teaches filial piety, respect to parents."24 For Ume, it was noth

20. Ume Kenjir? [Oum? Kendjiro], De la transaction en droit romain et dans l'ancien droit
fran?ais (Paris: L. Larose et Forcel, 1889); Higashikawa, Hakushi Urne Kenjir?, p. 11.
21. Peter Stein, Roman Law in European History (Cambridge: Cambridge University
Press, 1999), p. 120; Tamura Akio, "Wakaino kakutei k?," Shimadai h?gaku, Vol. 35, No. 4
(1992), pp. 35-81; Tamura, "Ima, naze Ume Kenjir? ka: Ume Kenjir? to wakairon," H?gaku
semina, Vol. 435 (1991), pp. 76-78.
22. Robert Charles Epp, "Threat to Tradition: The Reaction to Japan's 1890 Civil Code"
(Ph.D. diss., Harvard University, 1964); Masako Kobayashi Ikeda, "French Legal Advisor in
Meiji Japan (1873-1895): Gustave Emile Boissonade de Fontarabie" (Ph.D. diss., University
of Hawaii, 1996); Hoshino T?ru, Meiji minp? hensan shi kenky? (Tokyo: Daiyamondosha,
1943); Hoshino, Minp? ten rons? shi (Tokyo: Nihon Hy?ronsha, 1944).
23. Hozumi Yatsuka, professor of constitutional law at Tokyo Imperial University,
contended that once the Civil Code came into force, loyalty to the emperor and filial piety
would end. Hozumi's best-known essay, "Minp? idete, ch?k? horobu," was published in Au
gust 1891. For its analysis, see Epp, "Threat to Tradition," pp. 159-62. See also Richard H.
Minear, Japanese Tradition and Western Law: Emperor, State, and Law in the Thought of
Hozumi Yatsuka (Cambridge, Mass.: Harvard University Press, 1970).
24. Urne, "H?ten jisshi iken," Meih? shis?, No. 3 ( 1892). The text is reprinted in Hoshino,
Meiji minp? hensan shi kenky?, pp. 524-31.

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 Kim: Ume Kenjiro 9

ing less than slander to claim that the Boissonade code would destroy Japan
ese tradition. Japan's customs were not able to keep up with social changes
taking place since the Meiji Restoration and, Ume flatly pointed out, Japan
urgently needed a civil code to protect individuals' rights.25
After the Diet decided to postpone the implementation of the civil code
in 1892, Ume was appointed to the committee studying the viability of the
Boissonade draft. In the following April, he was placed, along with Hozumi
Nobushige and Tomii Masaaki, in charge of the codification of civil law and
commercial law. It?, then the prime minister and chair of the Code Investi
gation Commission, immediately recognized Ume's talents, and Ume be
came the legal brain of the It? circle.26 Ume served as a high-ranking official
under It?'s cabinet as chief of the Legislative Bureau in 1898. He was also
the director-general of the Ministry of Education in 1900. Hozumi Nobu
shige remarked that "Dr. Ume is It?'s Tribonian."27 Ume himself seemed
to take tremendous pride in It?'s trust in him. His testimonial in May 1910
to It?, who had died the previous year, affirms their relationship: "since
Meiji 25 [1892] I provided my meager help to the late prince's legislative
work. . . .1 enjoyed his trust all this time, often beyond my worthiness."
Above all, Ume was proud of his collaboration with It? in Korean legisla
tion: "the late prince reportedly said that the most successful part of his en
terprise in Korea was [the reform of] judicial power, and I fully agree."28
There is reason to believe that Ume in 1906, then 46 years old, saw It?'s
invitation to join him in Korea as a turning point in his career. As a scholar,
Ume was in his prime and, having completed the writing of the Civil Code,
he was looking for an opportunity, or another challenge, to enlarge his
sphere of activity. By the latter half of the 1890s, Japan had entered the
period of German law's predominance, and the influence of French law
declined sharply. As French law lost its appeal, the opportunity for those
belonging to the French school to exert influence in legislative matters
dwindled.29 The codification of the new civil law marked a fundamental
redirection of Japanese legal studies, as the committee took up revising

25. On the question of customs during the Japanese civil law codification process, see
Fukushima Masao, "Kyu-minp? to kank? no mondai," Matsuyama sh?dai ronshu, Vol. 17,
No. 6 (1966), pp. 295-322.
26. See Ume's letter to It?, April 17,1893, in It? Hirobumi Kankei Monjo Kenky?kai, ed.,
It? Hirobumi kankei monjo (Tokyo: Hanawa Shob?, 1975), Vol. 3, pp. 175-76.
27. Higashikawa, Hakushi Urne Kenjir?, p. 259. Tribonian served Emperor Justinian in
the codification of Roman law into the Corpus Juris Civilis in the sixth century.
28. Urne, "It? k? to ripp? jigy?," Kokka gakkai zasshi, Vol. 24, No. 7 (1910), pp. 962
and 974.
29. Oka, "Meiji minp? to Urne Kenjir?," p. 22; Erik Grimmer-Solem, "German Social
Science, Meiji Conservatism, and the Peculiarities of Japanese History," Journal of World His
tory, Vol. 16 (2005), pp. 187-222.

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 10 Journal of Japanese Studies 34:1(2008)

Boissonade's civil code, with its French orientation, in the new light of the
German civil code. As a jurist, Ume seems to have taken it as his mission to
introduce to Korea the modern private law firmly based on liberal individu
alism he had embraced during his studies in France.
Evidence shows that Ume in the early 1900s was still reeling from the
polemical controversy that surrounded the codification process in Japan,
during which the universal validity of natural law was denounced on the
ground of traditional morality. The new civil code was in many respects a
result of compromise because the drafters wished to avoid being accused of
not having taken proper account of Japanese customs. Ume was particularly
concerned about the reemergence of feudal ideology perpetuating unequal
rights and duties. Like Boissonade, who likely was Ume's teacher at the Jus
tice Department Law School, Ume was strongly opposed to "bad customs"
of a feudal nature, in particular the concept of the family (ie) that he believed
lacked the concepts of justice and respect for individual liberty.30 It is pos
sible that Ume held Boissonade's career in Japan as a model for his own
Korean venture.31 He went to Korea to create law codes that could be "on
par with the law codes of civilized countries," adequate to bring about
the "abolition of extraterritoriality."32 Korea may have appeared to him as a
place where he could implement, under the powerful and sympathetic pa
tronage of It?, Western legal concepts and civilized jurisprudence without
being deterred by resistance from political and social conservatives.

Ume in Seoul

Ume arrived in Seoul on July 2, 1906. His first task was to investigate
the Korean land ownership system. It? had repeatedly emphasized that the

30. For Ume's criticisms of the Japanese institution of "house" (ie), which he regarded as
pure anachronism subordinating the individuality of family members to the good of the house,
see Ume, "Niju seiki no h?ritsu," Yomiuri shinhun, January 5, 1900; Urne, Shohan minp? yogi,
kan'yuki 4 (Tokyo: Shinzansha Shuppan, 1992), p. 13; Ume, "Kazoku sei no sh?rai o ronsu,"
H?gaku shirin, Vol. 3 (1902), p. 34. Ume was in favor of equal succession to property. Hirano
Yoshitar?, Nihon shihonshugi shakai to h?ritsu (Tokyo: Rironsha, 1955), p. 98; Nakamura Te
tsuya, "Minp? dainihen shinzoku an," H?ritsu jih?, Vol. 70, No. 7 (1998), p. 34.
31. Boissonade vocally denounced the feudal custom of primogeniture in "Les anciennes
coutumes du Japon et le nouveau Code civil. A l'occasion d'une double publication de M. John
Henry Wigmore," S?ances et travaux de VAcad?mie des sciences morales et politiques, 54th
year (1894), pp. 199-200, cited in Yasuo Okubo, "La querelle sur la premier code civil japon
ais et l'ajournement de sa mise en vigueur: refus du l?gislateur ?tranger?" Revue internationale
de droit compar?, No. 2 (April-June 1991), p. 398. Okubo's article is part of the special issue
of the same journal, "Boissonade et la r?ception du droit fran?ais au Japan," pp. 327-424. See
also Okubo, "Gustave Boissonade, p?re fran?ais du droit japonais moderne (1825-1910),"
Revue historique de droit fran?ais et ?tranger, Vol. 59 (1981), pp. 29-54.
32. Ume, "Kankoku no h?ritsu seido ni tsuite," Part I, Tokyo keizai zasshi, Vol. 60,
No. 1512 (1909), p. 702.

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 Kim: Ume Kenjiro 11

protection of land ownership was the most crucial element in private law,
requiring immediate attention in Korea. Shortly after Ume's arrival, the Real
Property Law Investigation Commission was established in the Korean cab
inet with Ume as its head, and the commission began gathering Korean land
regulations and usages, researching old Korean law codes, and conducting
field surveys of these local customs. The investigation, focused on studying
Korean concepts of land ownership and land use rights, was to provide ma
terial for the new civil code. While awaiting the results of comprehensive re
search, however, It? wanted to implement quickly regulations to prevent
fraudulent transactions and proposed to the Korean cabinet measures re
quiring certification of transactions of real property.33 As the number of
Japanese residents and their investments in Korea had increased rapidly
since the turn of the century, the absence of laws defining clear land owner
ship rights presented serious problems for the protectorate government.
In September and October, Ume drafted a series of laws in collaboration
with the Korean Justice Ministry.34 The new laws, including the Land and
Building Certification Regulations, required official certification and au
thentification for transaction contracts in order to prevent forged ownership
documents.35 More significant, they legally confirmed a foreigner's right to
own land in Korea. It has been contended that the measures, especially the
one allowing foreigners to own land, were drafted on the pretext of facili
tating land transactions and preventing fraud and forgery, and that they
marked in fact a systematic effort to protect Japanese speculators.36 By sanc
tioning unrestricted sale of land, according to Ume's critics, the new laws

33. Kim, ed., Nikkan gaiko shiryo shusei, Vol. 6, Part I, p. 299.
34. Ume was present at the meeting with the Korean cabinet members held on August 15,
1906. Ibid., pp. 327-31.
35. Korea had limited foreigners' land ownership rights to areas within 10 li outside the
settlements. Ch?n Pongd?k, "Sab?p chedosa," Part 9, Py?nhosabo, No. 21 (1976), p. 51. The
new laws required certification, not registration, of land ownership. Without the registration of
titles, the land transaction document served as the only proof of ownership. Koreans have the
saying that when the house is on fire, you should run out with two things: the home sales doc
ument (chip muns?) to prove your home ownership and the genealogy register (chokpo) to
prove your clan pedigree.
36. Ch?ng, Kankoku minp?ten, p. 43; Ch?ng Yontae, "flehe ?i hanguk nongji ch?ngch'aek
1905-1945" (Ph.D. diss., Seoul National University, 1994); Kang Ch'angs?k, Chos?n
T'onggambu y?ngu (Seoul: Seoul Kukhak Charyow?n, 1995). Edwin Gragert disputed the con
tention that the Japanese, by introducing the modern land ownership system, were waging
"a colonial conspiracy" to deprive Koreans of their land and showed that Japanese land
acquisition at the time of annexation was not more than 3-4 per cent of all arable land. Edwin
Gragert, Landownership under Colonial Rule: Korea's Japanese Experience, 1900-1935
(Honolulu: University of Hawaii Press, 1994), p. 148. A group of Korean economic historians
questions the claim that the Japanese overtook as much as 40 per cent of Korean land through
its cadastral survey during 1912-18 in Kim Hongsik et al., Chos?n toji chosa sa?p ?i y?ngu
(Seoul: Min?msa, 1997), pp. 13-51.

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 12 Journal of Japanese Studies 34:1(2008)

removed any remaining legal impediments to Japanese land ownership in

Korea and opened the door for the economic advances of Japanese imperi
alism by accelerating the Japanese land grab in Korea.
While these criticisms have some validity, it is important to remember
that legalizing foreigners' land ownership rights was not something that
Ume newly concocted for Korea. His approach to Korean land law reforms
was largely consistent with the position he had taken in Japan. Ume's views
in favor of foreigners' enjoyment and exercise of private rights in Japan have
been analyzed in depth by ?kawa Sumi?.37 Ume strongly opposed attempts
to limit the private rights of foreigners in Japan. In 1898, a proposal was pre
sented to the Imperial Diet to change the draft language of the General Prin
ciples section of the Civil Code (Article 3), from "foreigners enjoy private
rights except in those cases where such enjoyment is prohibited by appli
cable laws" to "foreigners enjoy private rights within the extent specially
allowed by applicable laws." Ume forcefully argued against the change,
contending that the equal enjoyment of rights by foreigners should be the
general rule and limitations and prohibitions the exception. The proposal
was eventually defeated.38
In order to achieve the goal of abolishing extraterritoriality, Ume as
serted in Japan and repeated in Korea, it was necessary to impose the same
rights and duties on foreigners. It would be better to create laws common to
both Koreans and Japanese and bring Japanese residents in Korea under
them. He stated:

The land system should be unified because having two separate land
registers would cause great inconvenience. The land system needs to be
made common to Japanese and Koreans as well as foreigners. It would be
desirable to regulate the system by Korean law to be implemented when
the civil law is established.39

Ume reasoned that the prohibition of foreign ownership, often con

doned at the local level for many years, no longer had any practical jus
tification and that it made more sense to legalize it and increase tax revenues
from foreign-owned real property. In Japan, foreign ownership of land was
allowed in 1910, four years after it had been granted in Korea.
It can be noted that the real property laws Ume devised for Korea were
essentially based on the notion of nineteenth-century individualism, with its

37. ?kawa, "Gaikokujin no shaken."

38. Higashikawa's Hakushi Urne Kenjir? contains, pp. 153-64, a text supposedly au
thored by Ume opposing revision of Article 2. See also Hoshino, Meiji minp? hensan shi
kenky?, p. 196; Hoshino T?ru, "San hakushi to minp? seitei," H?gaku shirin, Vol. 49, No. 1
(1950), pp. 53-54.
39. Ume, "Kankoku no h?ritsu seido ni tsuite," Part II, Tokyo keizai zasshi, Vol. 60,
No. 1514 (1909), p. 796; "Kankoku no gapp? ron to ripp? jigy?," Kokuzai h? zasshi, Vol. 8,
No. 9 (1910), pp. 739-40 (speech of May 24, 1910).

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 Kim: Ume Kenjir? 13

principles of absolute ownership and freedom of contract. The new laws

would provide unencumbered rights and obligations uniformly to every in
dividual, regardless of nationality or status, and promote a liberal market so
ciety. Ume's belief in the individual's exclusive ownership right was central
to his legislative efforts in both Japan and Korea. Some historians claim,
however, that Ume's entire legislative activities constituted preparations for
the Japanese exploitation of the Korean people and that his call for a com
mon land law for Koreans and Japanese was proof of such a scheme. Cer
tainly it would be difficult to argue that Ume pushed for legislation that con
tradicted Japan's interest. But these laws were grounded in Ume's consistent
position that universal tenets of equal rights should not be confined within
the bounds of any state. Throughout the 1890s and the first decade of the
twentieth century, Ume devoted a number of articles, textbook pages, lec
tures, and speeches to the question of foreigners' rights, expounding on his
belief in universal natural rights theory.40
Ume's legislative campaign revealed his keen understanding of the
plight of the Korean people and his resolve to improve it by creating a mod
ern legal order. On many occasions, Ume discussed the harm caused by the
absence of property regulations that left Korean people vulnerable to ex
ploitation by shrewd Japanese speculators. Korean land customs did not
conform to the modern principles of real property rights and, as suits against
Japanese were handled by Japanese consular courts, Koreans had practically
no protection under the law.41
Ume was in particular concerned about the situation in which many Ko
reans were left helpless in defending their property rights against Japanese
usurers. Ume noticed that, in Korea, land ownership transfer occurred more
frequently as a result of foreclosure than through sale. The Korean notion of
ch?ndang included the concepts of a pledge involving the transfer of mov
able property to the creditor as well as a mortgage with no transfer of real
property.42 When the debtor failed to meet the specified period for the per
formance of the debt, the security property was forfeited to the creditor, re
gardless of the difference between the value of the property and the amount
of the debt. The creditor had neither the obligation to do an accounting to
the debtor nor the right to demand the amount short of the original loan.
Ume strongly argued for the need to reform this "cruel and nasty custom."43
Most serious harm was caused by Japanese usurers who foreclosed land by
taking advantage of the security custom. He described how Japanese loan

40. Ume, "Gaikokujin no kenri," H?gaku gakkai zasshi, Vol. 1, Nos. 1, 3, 9 (1893);
"Gaikokujin no toji shoy?ken," H?gaku shirin, Vol. 4 (1900).
41. Ume, "Kankoku no h?ritsu seido," Part I, p. 702.
42. Ume, "Kankoku no ch?ndang," H?gaku ky?kai zasshi, Vol. 26, No. 10 (1908), p. 780.
43. Urne, "Fud?san ni kansuru Kankoku kanshup? ippan," H?s? kiji, Vol. 18, No. 6
(1908), pp. 9-10.

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 14 Journal of Japanese Studies 34:1 (2008)

sharks exploited Koreans by lending money at exorbitant interest rates se

cured by land:

Before the establishment of the residency-general . . . Japanese money

lenders came to Korea hoping to make a fortune. They lend money by mort
gaging land and, when the debtor cannot pay the money back within the
stipulated time, take over the land according to the custom that land is sim
ply forfeited to the creditor_It even happens that, when the debtor comes
to pay the money back, the creditor hides so as not to receive the money, and
as soon as the loan becomes delinquent he suddenly shows up to take over
the land.44

This kind of unjust land forfeiture tactic used by impudent Japanese usurers,
criticized Ume, caused enormous suffering among Koreans.
The Regulations for the Pledge and Mortgage Execution of Land and
Buildings proclaimed in September 1906 were a close reflection of Ume's
view of the mortgage regulations Korea needed. The security instrument
had to be affixed with the endorsing seal of the town head; without the seal,
the pledge or mortgage instrument could not be used as evidence of a loan.
The laws provided that, absent an explicit forfeiture contract, land under
pledge or mortgage was to be brought to public auction. The auction pro
ceeds, after satisfying the loan, were returned to the mortgagor. The sepa
rate usury regulations, also proclaimed in the same month, limited the max
imum annual interest rate to 40 per cent; without a special contract, it was
limited to 20 per cent. This interest limitation measure aimed to protect hap
less Korean debtors. In Japan, Ume had opposed regulating usurious loans,
arguing that it would place undue burden on the flow of capital. This po
sition was consistent with his fundamental advocacy of freedom of contract.
When he witnessed the harm inflicted by Japanese creditors in Korea, how
ever, he was willing to compromise his legal beliefs. Ume's juristic flexibil
ity is exhibited in his effort to prevent unjust consequences and diminish the
suffering of Korean farmers.
Ume's speech given in October 1907 at the Kokka Gakkai (National
Studies Association) meeting in Tokyo is remarkable in that it revealed his
sentiment in extremely candid terms. He began by praising the superiority
of Korean civilization:

Korea became a civilized country before our country did. About a thousand
years ago, its civilization was more advanced than ours, and we are indebted
to Korea in many respects. We have progressed rapidly during the
last thousand years, but at the beginning we either directly borrowed
civilization from China or Korea, or received Chinese civilization through

44. Ibid.; Ume, "Kankoku no horitsu seido," Part I, p. 701.

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 Kim: Ume Kenjiro 15

Korea. There are many areas in which our civilization entirely imitated that
of Korea.45

Despite its auspicious beginning, however, Korea began to decline dur

ing the Chos?n period. It is revealing that Ume acknowledged that "al
though it is a little embarrassing for us to say this," Korea's decline was
"specifically caused by Hideyoshi's invasion of Chos?n." Following the
1592 aggression, the Korean peninsula was entirely destroyed and its in
dustry mercilessly plundered by the Japanese. For example, "many master
potters were forcibly brought to Japan as war prisoners. This is how Japan's
ceramics industry became as advanced as it is today while that of Korea, its
origin, was left in ruin." That Koreans blame Hideyoshi for their current
misery "is not unreasonable."46 Korea's misfortune was compounded by a
long succession of tyrannical rulers and corrupt officials. As the Korean
popular saying went, Korea's despotic government was more dreadful than
the peninsula's famous tigers.47
According to Ume, Korea is a "difficult" country because, while Korean
people lack a sense of enlightened nationalism, they still strongly cling to
the notion of the fatherland. "There are some Japanese," he pointed out,
"who misinterpret this and say that, since Koreans do not care about their
country, if we simply go there and conquer the peninsula, Koreans will hap
pily obey us as long as we enhance the happiness of at least a few people
there. This is completely wrong; whoever says this does not know the Ko
rean people." In Korea "there is widespread animosity against the Japanese
people. This is something you immediately realize once you set foot in Ko
rea. Korean people think the Japanese simply cause harm to them and are
their enemies." If the Japanese would take one step back and view the situ
ation from the Korean perspective, mused Ume, this kind of hostility would
not be difficult to understand. Furthermore, during the previous several
decades, a number of Japanese ruffians had come to Korea and inflicted
much harm and misery on the Korean people. They committed despicable
acts such as taking over Korean land through irregular usurious loans and
dishonest dealings in commerce. So,"Japanese have become the worst en
emy among the foreigners in Korea."48

45. Ume, "Kankoku no hanashi," Kokka gakkai zasshi, Vol. 21, No. 12 (1907), p. 1438.
46. Ibid., pp. 1439 and 1463. Ume's admiration of Korean civilization and acknowledg
ment of the disastrous effect of the Japanese invasion strike the same chord as those of
Yanaihara Tadao some 30 years later. Susan C. Townsend, "Yanaihara Tadao and the Irish
Question: A Comparative Analysis of the Irish and Korean Questions, 1919-36," Irish His
torical Studies, Vol. 30 (1996), p. 202.
47. Ume, "Kankoku no hanashi," pp. 1442 and 1440.
48. Ibid., pp. 1462-64.

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 16 Journal of Japanese Studies 34:1(2008)

These statements by Ume amount to an expression of his doubts about

Japan's imperial ambition in Korea. He warned against the complacent
and misguided belief among some Japanese that Koreans would welcome
annexation. To the contrary, Koreans strongly resented the Japanese and
would vehemently protest Japanese territorial aggression. In particular, Ko
reans are certainly mindful of the law under which they would be governed,
and this is why independent Korean laws must be codified, he argued. For
Ume, the codification of Korean civil law was not a mere stepping stone to
ward the full-blown application of Japanese civil law. Ume consistently
worked under the assumption that Korea would eventually regain its full in
dependence and viewed his task as developing a legal code that could stand
up to the scrutiny of the international community.
Behind this laudable goal, however, lay a contradiction Ume failed to
see, or at least was hesitant to admit. Japan's policy, as promoted by It?, was
to protect Korea's independence and promote the Korean people's interest
while also maintaining a firm political grip under the protectorate arrange
ment. Ume appears to have genuinely believed that It?'s intervention in the
administration of Korea was necessary to resuscitate Korea's strength after
a long period of misrule and put it back on the track of progress. It? the
statesman, a perennial pragmatist, was primarily concerned with keeping
Korea as a reliable, and pliable, ally. He felt annexation would have a nega
tive political and financial impact on Japan, but he was ready to adjust, if
necessary, his course of action to suit Japan's interest. Ume the comparative
jurist, on the other hand, focused on the absurdity of imposing Japan's law
on Korea, which had a starkly different historical and cultural tradition. He
remained convinced that Korea needed an independent civil code. The in
congruity that Japan was helping Korea survive and prosper by dictating its
national policy was apparently less obvious to Ume than to modern ob
servers. A true partisan of universal natural law, Ume seemed to believe that
the interests of the two countries need not be in conflict.

Constructing a Modern Legal System

Ume's efforts to establish modern property rights in Korea were closely

linked to the reform of judicial administration. It? pointed out in a 1907
meeting with the Korean cabinet that, under the treaty relations, foreigners
remained completely outside Korean jurisdiction. Even when Koreans were
defendants in civil suits, the lack of a modern trial system caused those cases
to evolve into diplomatic questions, seriously disadvantaging the Korean
parties.49 In order to bring foreigners under Korean laws, It? pointed out, it
was necessary to write modern codes and establish independent and com

49. Kim, ed., Nikkan gaiko shiryo shusei, Vol. 6, Part II, p. 512.

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 Kim: Ume Kenjiro 17

petent courts. Absent legal reforms, "it is no use being angry about [ex
traterritoriality] because it is strictly in accordance with the treaty."50 Be
tween 1906 and 1909, the protectorate government's judicial policy went
through several phases. As It? formulated the issue, there were two options:
unify Korea's judiciary with Japan's judicial power, or maintain Korea's ju
dicial authority and reform it under Japan's protection. It? initially opted for
the latter, "gradual improvement of Korea's judicial system."51 Separation
of judicial and administrative powers was essential for judicial reforms.
The Third Korea-Japan Agreement of July 24, 1907, stipulated that the
promulgation of laws by the Korean government and important administra
tive dispositions would henceforth be approved by the resident-general
(Article 2). The treaty specifically required that judicial affairs be separated
from ordinary administrative affairs (Article 3) and that Japanese judges and
prosecutors be appointed to Korean courts (Article 5).52 To ensure the sepa
ration of the judiciary and the administration, Japanese bureaucrats were
appointed in each ministry in the Korean cabinet as deputy ministers. In
September 1907 Kuratomi Yuzabur? (1853-1948) took office as deputy
minister of justice. On December 23,1907, the Court Organization Act was
proclaimed, drafted by Ume, establishing a court structure closely modeled
after the Japanese system. Four levels of courts were created, headed by the
supreme court (Taesimw?n), and a tripartite hearing system was established.
After some delay due to the difficulty in recruiting qualified judicial officials,
new courts opened in August 1908. The judicial structure formulated at this
time remains fundamentally intact in the modern Korean judicial system.
The reform of the Korean legal system raised widespread criticism in
Japan, mainly due to the costs incurred by the Japanese government. An
article in H?ritsu shinbun in 1907 argued:

Resident-General It? wants to establish, as a way of reforming Korea, a

tripartite hearing system and a supreme court just like in civilized coun
tries. .. .But there is sufficient proof that it is too early to establish a tripar

50. It?'s statement at the meeting with provincial governors, ibid., Vol. 6, Part II, p. 928.
51. This quote from It?'s speech to Japanese legal professionals, January 5,1907, appears
in "Chosen ni okeru shih? seido kindai ka no sokuseki," in Y?h? Ky?kai, ed., Chosen kindai
shiry? kenky?, Vol. 6 (Tokyo: Kuresu Press, 2001), pp. 9-16. This book is the transcript of a
roundtable discussion held in Tokyo in 1940, in which a number of Japanese legal professionals
who had served in the Chosen government-general participated. For a Korean translation, see
Nam Kij?ng, Ilche?i Hanguk sab?ppu ch'imnyak sirhwa (Seoul: Yukp?psa, 1978). See also
Edward J. Baker, "The Role of Legal Reforms in the Japanese Annexation and Rule of Korea,
1905-1919," in David R. McCann, John Middleton, and Edward J. Shultz, eds., Studies on Korea
in Transition (Honolulu: Center for Korean Studies, University of Hawaii, 1979), pp. 17-42.
52. Kim, ed., Nikkan gaik? shiry? sh?sei, Vol. 6, Part II, pp. 634-38. For the events sur
rounding the agreement, see C. I. Eugene Kim and Kim Han-Kyo, Korea and the Politics of
Imperialism 1876-1910 (Berkeley: University of California Press, 1967), pp. 141-49.

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 18 Journal of Japanese Studies 34:1(2008)

tite hearing system in Korea, due to the low level of civilization of the Ko
rean public. .. .The resident-general is wise and experienced; why does he
not realize this?53

For Ume, the architect of Korea's judicial structure, the outcry against
It?'s legal policy was groundless and shortsighted. After It?'s death, Ume
denounced in strongest terms those who claimed that "establishing a tripar
tite system in a country like Korea is wrong, implementing a collegiate
bench judgment is wrong, and the late prince It? focused on formalities in
making laws ignoring practical benefits." It? believed, recalled Ume, that
"judicial independence was the most urgent matter." Some people misun
derstood It?'s intent, he continued, and said "there is no need to stipulate
matters of judicial power in the [Third Korea-Japan] treaty because judicial
matters are after all part of politics and naturally will be governed under the
resident-general's guidance."54 But the fact that It? demanded inclusion of
the specific provision of judicial independence in the treaty corroborated,
according to Ume, his vision to reform the Korean courts without delegat
ing judicial power to Japan. Ume seemed convinced that It?'s policy to ame
liorate Korea's courts and judicial system would have rendered it unneces
sary for Japan to take over Korea. Constructing a national court system was
central to the country's survival and territorial sovereignty; the new courts
required new laws to apply, and he was charged with writing these laws.
In December 1907, the Code Investigation Bureau was created in the
Korean cabinet with the mandate to draft civil law, penal law, civil proce
dure, criminal procedure, and supplementary laws. Ume held the title of ad
viser, and Deputy Justice Minister Kuratomi was appointed chairman. The
bureau conducted studies of Korean codes, ritual texts, and Chinese laws
that had substantial impact on Korea, and it undertook field surveys to col
lect Korean practices and customs governing private relations.55 During the
investigation, Ume himself drew up 206 questions on civil and commercial
law matters. Civil customs questions were then organized according to the
Japanese civil code categories. The results of the survey, published in 1910,
a few months after Ume's death, remain today the only comprehensive col
lection of Korean customs, rites, and practices.56

53. "Kankoku hashite taishinen o okuno hitsuyo ariya," H?ritsu shinbun, Vol. 463 (No
vember 25, 1907), p. 2.
54. Ume, "It? k? to ripp? jigy?," pp. 970-75.
55. The research was based on Korean codes such as Ky?ngguk taej?n and Hy?ngp?p
taej?n, Confucian texts, private documents and legal forms, and the survey of popular usages and
rites. Ume himself traveled throughout the country to gather and document customs. Kawasaki
Bunz?, "Chosen ni okeru Ume hakushi," H?gaku shirin, Vol. 49, No. 1 (1950), pp. 98-100.
56. Ch?sen S?tokufu, Kansh? ch?sa h?kokusho (Seoul: Ch?sen S?tokufu, 1910). For
a Korean translation, see Ch?ng K?ngsik, trans., Kaey?kp'an kwans?p chosapogos? (Seoul:
Hanguk P?pche Y?nguw?n, 2000). Only in the 1990s was preliminary research undertaken
to compile local customs comprehensively. See Hanguk Popche Y?nguw?n, ed., Kwans?ppop
chosa y?ngu (I) (Seoul: Hanguk Popche Y?nguw?n, 1992).

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 Kim: Ume Kenjiro 19

In East Asia, unlike in France, there was a total absence of collections,

official or private, of customs that governed legal relations between individ
uals. Because there was no written private law in Korea, efforts to codify
civil law needed to start from collecting local usages and practices.57 Ume
had been critical about the value of the compilation of Japanese customs,
published in 1877 and again in 1880, which he viewed as the privileges of
feudal dominant elites, not popular usages that had achieved the validity of
law.58 Undertaken by the notables of the old feudal regime, the 1877 survey
largely compiled usages and local practices seen through the eyes of the
heads of samurai clans who naturally tended to confuse civil law traditions
with their own privileges. Ume did not give much credence to those findings
and instead advocated empirical field surveys to investigate the practices of
the common people. The same belief led him to emphasize the investigation
and recording of Korean customs so he could gain thorough insight into
Korean society. Unjust or inequitable usages needed to be modified, up
dated, or discarded. As in Japan, Ume was critical of blindly adhering to tra
ditions. Refined customs were to be standardized and reordered to produce
common priniciples, which would then be reduced into code provisions and
incorporated into a legal framework embodying the universal principles of
individual rights. Ume thus took it upon himself to perform single-handedly
jurisprudential and doctrinal work that had been undertaken by judges and
legal scholars in France during several centuries since the late Middle Ages,
a process that culminated in the promulgation of the Napoleonic Code
in 1804.59

57. See Marie Seong-Hak Kim, "Law and Custom in the Chos?n Dynasty and Colonial
Korea: A Comparative Perspective," Journal of Asian Studies, Vol. 66, No. 4 (2007). For analy
sis of the movements to record legal customs in China and Japan, see works by J?r?me
Bourgon: "La coutume et le droit en Chine ? la fin de l'empire," Annales HSS, Vol. 54 (1999),
pp. 1073-1107; "Le droit coutumier comme ph?nom?ne d'acculturation bureaucratique au
Japon et en Chine," in Bourgon, ed., La coutume et la norme en Chine et au Japon (Saint-Denis:
Presses Universitaires de Vincennes, 2001), pp. 125-42; and "Uncivil Dialogue: Law and
Custom Did Not Merge into Civil Law under the Qing," Late Imperial China, Vol. 23 (2002),
pp. 50-90. For Taiwan, see Tay-Sheng Wang, Legal Reform in Taiwan under Japanese Colo
nial Rule, 1895-1945: The Reception of Western Law (Seattle: University of Washington Press,
2000).
58. Tezuka Yutaka, ed., Minji kanrei ruish? (Tokyo: Kei? Gijuku Daigaku H?gaku
Kenky?kai, 1969); H?mush? Shih? H?sei Ch?sabu, ed., Zenkoku minji kanrei ruish? (1880;
repr. Tokyo: Sh?ji H?mu Kenky?kai, 1989).
59. For the French codifications of customary law in the sixteenth century, see: Ren? Fil
hol, Le Premier pr?sident Christofle de Thou et la r?formation des coutumes (Paris: Librairie
du Recueil Sirey, 1937); Marie Seong-Hak Kim, "Christophe de Thou et la r?formation des
coutumes: l'esprit de r?forme juridique au XVIe si?cle," Tijdschrift voor rechtsgeschiedenis,
Vol. 72 (2004), pp. 91-102; and Marie Seong-Hak Kim, "Custom, Community, and the Crown:
Lawyers and the Reordering of French Customary Law," in Charles H. Parker and Jerry H.
Bentley, eds., Between the Middle Ages and Modernity: Individual and Community in the Early
Modern World (Lanham, Md.: Rowman & Littlefield, 2007), pp. 169-86.

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 20 Journal of Japanese Studies 34:1 (2008)

Supervising this investigation of local customs and ancient legal texts

took most of Ume's time in Korea between 1908 and 1910. Yet his effort to
create independent Korean codes on the basis of conscientious study of old
Korean laws and practices encountered sustained criticism. Nearly from the
beginning of his work in Korea, Ume was subject to attacks by those who
favored the quick imposition of Japan's civil law on Korea. No sooner had
he arrived in Korea than an anonymous article in a Japanese newspaper
blasted his investigation: "Professor Ume is allegedly studying Korea's laws
but is making the mistake of valuing old papers as Korea's customary law
documents, when in fact they are nothing other than waste paper." The arti
cle continued: "Korea's traditional law codes have rarely been observed.
Therefore, instead of committing the folly of getting entangled with these
codes, we should proceed to imposing forcefully our civilized and equitable
civil law [on Korea]."60
Undaunted by the widespread skepticism about his enterprise, however,
Ume made notable progress in codification. He worked on civil procedure
in October 1907, even before he completed the court organization law in
December.61 He boasted that his Korean code of civil procedure would
incorporate more advanced doctrinal principles than the Japanese code of
1890 which closely followed the German system.62 Ume returned to Korea
in February 1908 and submitted the completed draft to the resident-general
in April. He acknowledged that the draft was fundamentally based on Japan
ese civil procedure, although he took care not to copy rules that were overly
formalistic.63 Ume's draft of civil procedure soon fell victim, however, to
new turns in Japan's policy. The growing prospect of entrusting Korean ju
dicial power to Japan diminished the need for an independent Korean code.
Its planned proclamation on July 1 was postponed without explanation.
Upon Ume's return to Korea in July, the draft was discussed in the Code
Investigation Bureau, only to be put on hold by the time he went back to
Japan in late August. Ume later confirmed that while "the draft had already
been completed, entrustment of judicial power required some modifications
of the code."64 Ume's codification scheme had clearly been based on the
assumption of the continuing existence of a sovereign Korea, but it was

60. "Ch?sen no h?ten ch?sa," Tokyo keisai zasshi, Vol. 1346 (July 21, 1906), p. 107.
61. "Kankoku shih? seido," H?ritsu shinbun, Vol. 455 (October 15, 1907), p. 26.
62. "Ume hakushi to kataru," H?ritsu shinbun, Vol. 546 (January 20, 1909). Consisting
of 577 articles, the code was shorter than the Japanese equivalent (755 articles). Ume's hand
written drafts are preserved in H?sei University Library, Urne Kenjir? monjo, Part 3 ("Kankoku
ripp? jigy? tannin t?ji ni okeru kian shorui"), A5a/33-37. A printed Korean version is in
Waseda University Library. The Korean text was published in Ch?ng Chonghyu, "Hanguk
minsa sosong pop an," P?psahak y?ngu, Vol. 10 (1989), pp. 231-336.
63. Ume, "Kankoku no h?ritsu seido," Part II, pp. 795-96.
64. "Ume hakushi danben," H?ritsu shinbun, Vol. 619 (January 25, 1910), p. 20.

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 Kim: Ume Kenjir? 21

inevitable that his entire legislative enterprise was to be influenced by the

rapidly evolving political situation.

The Need for a Civilized Civil Code

The changes that took place in 1908 had significant impact on Ume's
Korean campaign. In that year, there were early signs of a shift in It?'s legal
policy. From the beginning, the entire fate of Ume's work in Korea hinged
upon It?. Ume's codification efforts had a chance to survive only as long as
It? remained faithful to the idea of keeping Korea independent. Although
the genuine goal of It?'s so-called "nurturing self-rule" has been scrutinized
in colonial historiography, it is difficult to deny that a substantial amount of
effort was made, and money spent, for It?'s reform policy during his tenure.
It was indeed in reaction to It?'s costly legal reform that critics in Japan be
gan to lambaste his Korean policy as a detriment to national interest and
prestige. It? was too powerful and canny a figure to bow before such politi
cal pressure, but it is certainly possible that it caused him to grow increas
ingly weary and skeptical about the wisdom of his reform policies.
In the summer of 1908, It? seemed ambivalent. He was sending out
conflicting messages. At a meeting with Korean cabinet members in June,
It? stated that he was rushing judicial reforms because they were essential
for the abolition of extraterritoriality. It was his hope that, once the codes
were completed, "Japan will abolish its consular jurisdiction of its own
accord and have other countries follow its example."65 A newspaper article
reported in November 1908 that the improvement of the Korean judicial
system following Japanese judges' employment and the progress in Ume's
codification projects led Japan and the United States to begin talks of abol
ishing consular courts, and it stated that abolition depended on the comple
tion of codification.66 In fact, however, a new development dimmed the
prospect of an independent Korean code. In May 1908, Japan and the United
States had negotiated a treaty in which the U.S. government offered to with
draw its consular jurisdiction over intellectual property matters in Korea
when the Japanese government implemented in the peninsula an intellectual
property law equivalent to the one in force in Japan.67 The treaty was aimed
at preventing the violation of U.S. citizens' patents, trademarks, or copy
rights by Japanese citizens residing in Korea. The question facing the Japan
ese government was whether to write a new Korean patent law to be issued
by the Korean government or simply to extend Japanese law to the peninsula,

65. Kim, ed., Nikkan gaik? shiry? shusei, Vol. 6, Part II, pp. 947-48 (June 24, 1908).
66. "Kankuko to chigai h? ken," H?ritsu shinbun, Vol. 536 (November 30, 1908), p. 21.
67. Ogawahara Hiroyuki, "T?kan It? Hirobumi no Kankoku h?chi kokka k?s? no katei,"
in Kan Tokusan Sensei Koki Taishoku Kinen Ronbunshu Kanko Iinkai, ed., Nitch? kankeishi
ronsh?: Kan Tokusan sensei koki taishoku kinen (Tokyo: Shinkansha, 2003), pp. 162-87.

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 22 Journal of Japanese Studies 34:1 (2008)

having its legal effect acknowledged by the Korean government. By June, It?
decided to go with the latter option and demanded that the Korean govern
ment implement the Japanese intellectual property law as law in Korea. The
proclamation marked an important turning point in Japan's legal policy and
established a precedent for the direct extension of Japanese laws to Korea.
This development presented a new solution to the Japanese goal of revising
unequal treaties in Korea; extraterritoriality could be abolished by bypass
ing the entire process of writing codes. Why wait for the codification of Ko
rean laws when quick imposition of Japanese law would achieve the same
objective?
The demand for a new strategy to end extraterritoriality was supported
by Kuratomi, the chair of the Code Investigation Bureau. Kuratomi argued
in a memo, likely written sometime between May 1908 and July 1909, that:

We can use the example of the American-Japanese treaty ... that led to the
effect of subjecting foreigners to Japanese courts. If we establish Japanese
courts and take over judicial affairs in Korea, it becomes possible to bring
foreigners under Japanese jurisdiction and to obtain the same result as the
abolition of extraterritoriality.68

Kuratomi thus recommended that Japanese residents in Korea be tried

not by consular courts but by permanent Japanese courts staffed by Japanese
judges who adjudicate according to Japanese laws. Soon foreigners would
be brought under Japanese jurisdiction. He thus in effect suggested the com
plete takeover of Korean judicial affairs by Japan. The fact that Kuratomi
was the official head of the Code Investigation Bureau did not deter him
from claiming the supposed futility of new Korean codes. It is interesting
to note that Kuratomi and Ume, the two key individuals in Japan's legal ven
ture in Korea, seemed to represent fundamental theoretical and ideological
disagreement over Japan's legal policy. Kuratomi was a career bureaucrat,
Ume an academic. Kuratomi called for Japan's swift takeover of Korea's
judiciary, the imposition of Japanese law, and, by implication, annexation.
Ume responded to Kuratomi's memo by authoring "My humble opinion re
garding the improvement of judicial system in Korea" and also "My opinion
regarding the implementation of the judicial affairs entrustment agreement,"
in which he discussed and questioned Kuratomi's suggestions to create

68. "Kankoku ni okete saiban jimu ni kansuru ken," Kuratomi Yuzabur? monjo, Vol. 30,
No. 19, National Diet Library (Japan), Bureau of Constitutional Documents. I used microfilm
versions of this document in the library of the Graduate School of Letters at Kyoto University.
I am grateful to Professor Nagai Kazu at Kyoto University for allowing me to consult these ma
terials. The Kuratomi Papers have recently been subject to extensive examination by Japanese
historians in relation to colonial Korean studies. See Nagai Kazu, "T?kanbu no shih? seido
kaikaku to sono tenkan o meguru kenky?" (web publication version), at http://www.bun
.kyoto-u.ac.jp/~knagai/kuratomi/judiciaryreforml.html (accessed May 15, 2007).

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 Kim: Ume Kenjir? 23

residency-general courts.69 Ume had largely steered away from political dis
cussions in Korea, but in the papers above he dissected Kuratomi's proposal
to establish Japanese courts in Korea in his typically analytical fashion, rais
ing questions about technical matters such as the expenses involved and the
legality of procedures. It was not theoretical arguments regarding procedural
regularity but politics, however, that mattered at the time.
The large body of Japanese scholarship on It? in Korea seems to agree
that his conversion to annexation was complete by April 10, 1909, when he
met with Prime Minister Katsura Tar? and Foreign Minister Komura J?tar?.
To their surprise, It? readily consented to the annexation proposal. It? had
been increasingly disillusioned about the efficacy of his self-rule policy. He
expressed deep disappointment about the low quality of Japanese judicial
officials employed in the Korean government. According to Moriyama Shi
genori, the biggest reason for It?'s volte-face was the realization that his
more than three years of protectorate rule failed to earn Koreans' hearts and
minds and instead resistance had intensified in massive ?iby?ng (righteous
army) uprisings all over the country. Faced with mounting opposition and
criticism from Japan to his policy, It? decided he could no longer fulfill his
repeated promise of Korean independence. But presiding over the process of
annexation as the resident-general would be too embarrassing for him be
cause it would amount to an open acknowledgment of defeat. It?'s solution
was simple: let someone else bear the responsibility of annexation; he would
rather not be associated with it.70 It? was formally relieved of his post in
Korea on June 14,1909, and appointed head of the Privy Council. On July 6,
the Japanese cabinet passed a resolution confirming the annexation of Ko
rea. On July 12, a "Memorandum Concerning the Administration of Justice
and Prisons in Korea" was signed.71 Korean judicial courts and prisons were
formally "entrusted" to Japan and the Korean Law Ministry dissolved. Ko
rean courts were replaced by the residency-general courts in October.
The abolition of the Korean judiciary not only scrapped Ume's work
to establish modern Korean courts but rendered his codification virtually
pointless. The writing of Korean laws had progressed during the previous
three years on the assumption that Korea would stand on its own, and the
prospect of continued independence now all but evaporated. Perhaps sens
ing a crisis for his codification campaign's future, Ume told a newspaper a
few days after the Japanese takeover of the Korean judiciary that he ex
pected to see completion of the civil code by the end of the following year.72

69. Ume Kenjir? monjo, Part 3, A5a/25, No. 19 and No. 18. It is not clear whether these
undated drafts were intended for publication or some other purpose.
70. Moriyama, Nikkan heig?, pp. 173-75, and Kindai Nikkan kankeishi kenky?, p. 225.
71. The text is in Kim, ed., Nikkan gaik? shiry? shusei, Vol. 6, Part III, pp. 1256-60.
72. "Ume hakushi no dan," H?ritsu shinbun, Vol. 582 (July 20, 1909).

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 24 Journal of Japanese Studies 34:1 (2008)

In the September meeting of the Tokyo Keizaigaku Gakkai (Tokyo Eco

nomic Studies Association), Ume delivered a speech reporting on the state
of the Code Investigation Bureau:
It is necessary to write a civil code, because civil law exists in all countries
including Korea. It simply has not been written down and one must now
turn it into codified law. Traditional customs, if they are bad ones, must be
changed. Abolition of consular jurisdiction requires a code similar to that
of a civilized country. Commercial law should be incorporated into civil
law. I have been drafting the code and since last year have been investigat
ing customs. I should be able to complete the investigation before the end
of the year.73

In this speech, his first public statement after the proclamation of the
establishment of Japanese courts in Korea, Ume needed to explain to his au
dience why independent codes were still necessary when Korean courts no
longer existed. Article 3 of the entrustment agreement stipulated that "the
Japanese courts in Korea shall apply Korean laws to Korean subjects, except
in cases specially provided for in agreements or in laws and ordinances."74
Ume reasoned:
Until now it was Korean law that governed lawsuits between Korean par
ties and also those in which Japanese citizens were plaintiffs. The Korean
code was supposed to control all cases involving foreigners once consular
jurisdiction came to an end. But now, the courts will apply Japanese law to
the Japanese, and Korean law to Koreans. Except for the special provisions
in the agreement and other laws, Korean law will not be applicable to the
Japanese. Therefore, the new Korean civil code is entirely for Koreans.75

The new framework outlined by Ume?application of Japanese civil law to

cases in which one or both parties were Japanese or foreigners and applica
tion of Korean civil law or old customs to cases involving Koreans only?
postulated the coexistence of Japanese civil law and Korean civil law.
Korean law would not be applicable when at least one party was non
Korean. The new civil code he was drafting would thus be independent from
Japan's civil code but not equal in its authority.
The new legal structure laid out by Ume in Korea was continuous with
the position he had expounded earlier over Japan's legal policy in imperial
territory. He was a strong advocate of the extension of Japan's constitution
to Taiwan. In 1898 Ume, then chief of the Legislative Bureau, wrote a clas
sified report in which he scrutinized Law No. 63 of 1896 that had placed
the Taiwanese outside the protection of the Japanese constitution.76 Refer

73. Ume, "Kankoku no h?ritsu seido," Part II, p. 796.

74. Kim, ed., Nikkan gaik? shiry? shusei, Vol. 6, Part III, p. 1257.
75. Ume, "Kankoku no h?ritsu seido," Part II, p. 796.
76. Ume's classified report titled "Taiwan ni kansuru hiken" is part of the Goto Shinpei
monjo, National Diet Library (Japan), microfilm, No. 23 (7-5). Ume's report is analyzed in

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 Kim: Urne Kenjir? 25

ring to the example of France, which extended its constitution to overseas

territories, Ume argued that Japan, a country with a written constitution un
like England, needed to extend its supreme law to the indigenous popula
tion. Inhabitants of Taiwan, legally part of Japan, should enjoy the rights
and liberties guaranteed in Japan's constitution. Here Ume was unequiv
ocal in arguing that the fundamental principles of law should be common
throughout the empire. At the same time, however, he asserted that Taiwan
needed civil law that ought to be established in consideration of Taiwanese
and Chinese customs and particular situations. "In principle our codes
should be implemented in Taiwan," but in reality directly applying Japan's
laws would cause difficulties because of different legal foundations. Await
ing the writing of Taiwan's codes, "the natives should be governed for some
time by old customs. In matters regarding real estate, old customs should
be applied throughout Taiwan, or at least in most of Taiwan, until the land
cadastre is completed." Any conflict arising between customs and Japan's
laws in family and succession relations should be resolved "in accordance
with the international principles of private laws." Criminal law and civil
and criminal procedures would need certain special provisions.77
Ume's stance in Korea in 1909 was not inconsistent with this earlier po
sition. Korea needed an independent civil code. The problem for Ume was
his delicate differentiation between the extension of the constitution and the
general principles of law to overseas territories, with which he agreed "in
principle," and his contemporaneous support for separate law codes for the
non-Japanese populations residing under Japan's sphere of influence. In the
eyes of most Japanese people, the distinction seemed to be overly technical
and to pose an intrinsic contradiction.78

A Liberal Jurist's Uphill Battle

Ume's advocacy of an independent Korean civil code came under in

creasing criticism, pitched now in more explicit ethnic and cultural tones. In
September 1909, an anonymous author argued in Kokusai h? zasshi:

Korea is an old country in the Orient, and traditionally its people's social
existence has been governed by customs and traditional laws. Suppressed
by their own government's despotic and tyrannical rule, the Korean people
do not have a civilized notion of the fundamental rights of person and prop
erty. Korea has long been an agricultural country with no commercial and

?kawa, "Gaikokujin no shiken," Part II, p. 1013, and Oguma, "Nihonjin" no ky?kai, pp. 126 -28.
For the constitutional debate surrounding Law No. 63, see Edward I-te Chen, "The Attempt to
Integrate the Empire: Legal Perspectives," in Ramon H. Myers and Mark R. Peattie, eds.,
The Japanese Colonial Empire, 1895-1945 (Princeton: Princeton University Press, 1984),
pp. 240-74.
77. Ume, "Taiwan ni kansuru hiken."
78. ?kawa, "Gaikokujin no shiken," Part II, pp. 1010-11.

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 26 Journal of Japanese Studies 34:1(2008)

technological development, and Koreans do not have any concept of com

mercial legal rights that developed in the West. Therefore it is possible to
say that it is completely absurd to attempt to codify laws of family, prop
erty, and commercial matters based on the principles of private law in the
European legal tradition and to try to govern Korean people in the same
way as governing civilized people.79

Ume had held a rather passive position in the political discussion, maintain
ing a critical distance from the annexation question. He preferred not to let
his reform campaign be part of the political controversy. The polemical
debate now on the rise, however, threatened to negate the entire cause of his
work over the last several years and thus compelled him to confront the fu
ture of Korean law after annexation. Ume penned a reply to the above ar
ticle. It was published the following May in the same journal under the title
"The Korean Annexation Theory and the Legislative Campaign":

In my opinion, imposing Japan's civil and commercial laws directly in Ko

rea is impossible even after annexation. First, customs of family law and
succession law diverge greatly among countries, and especially Korean
customs are remarkably different from those of Japan. Therefore, it is be
yond doubt that a special law needs to be established for the Korean people.
. . .Even in Taiwan, despite the fact that it became part of our territory, we
have spent an enormous amount of money over many years to investigate
its customs and now we hear that the drafting of Taiwanese civil law has
started. I believe it is natural that we need a special code in postannexation
Korea.80

For Ume, the prospect of Korean annexation should have had no impact
whatsoever on the need for a Korean civil code. Investigations of Korean
customs convinced him that Koreans had legal traditions and practices dif
ferent from those of the Japanese. For instance, permanent tenancy, a sort of
emphyteusis, was far more widespread in Korea than in Japan.81 In Japan,
the need to distinguish tenant from landowner led to a provision in the Civil
Code limiting the duration of emphyteusis to not fewer than 20 years but
not more than 50 years.82 In Korea, however, the existence of permanent
tenancy was so deeply entrenched that Ume concluded that a similar change
was bound to create tremendous problems. The ownership of land and
buildings in Korea were often separate. The owner of the land was required

79. Kokusai h? zasshi, Vol. 8, No. 1 (September 25, 1909), p. 5.

80. Ume, "Kankoku no gapp? ron to ripp? jigy?," p. 740.
81. Ch?sen S?tokufu, Kansh? ch?sa h?kokusho, Nos. 33 and 35. The tenant obtained
from the landlord the right to cultivate waste land and hold it permanently, provided he paid a
fixed sum as rent. This right was not affected even when the land was sold and could be be
queathed or sublet without the landlord's consent.
82. Ishii Ryosuke, Japanese Legislation in the Meiji Era, trans. William J. Chambliss
(Tokyo: Pan-Pacific Press, 1958), p. 627.

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 Kim: Ume Kenjir? 27

to acknowledge the transaction when the building was sold and could not
oppose the transfer of ownership.83 These were but a few examples of diver
gent property customs, yet they were sufficient to justify independent civil
and commercial laws for Korea. It was then out of the question, in Ume's
opinion, to impose Japanese family and succession laws on Koreans who
had a fundamentally different kinship structure and customs. Ume sounded
rather resigned when he professed that he had no interest in politics: "I
do not have any desire to express my opinion regarding political matters,
whether there will be annexation or when."84 At least, however, he res
olutely refused to let his legal convictions be swayed by politics.
It?'s exit from Korea in June 1909 marked a critical juncture for Ume's
campaign. Deprived of their main supporter, Ume's attempts at codification
seemed devoid of any realistic prospects for survival. Although there is no
concrete evidence, it is possible to conjecture that Ume was disappointed by
It?'s retreat from his earlier commitment to the independence of the Korean
judiciary. One clue allows a glimpse of the conflict between the resident
general's legislative agenda and Ume's perceived objectives for his cam
paign in Korea. In September 1909 Ume rather frankly acknowledged that
the landownership laws he had helped draft in 1906 failed to reflect Korean
land customs.85 He said that subsequent research on the Korean situation led
him to realize that Korean land customs significantly diverged from modern
property concepts and that the laws issued under the residency-general had
underestimated complex tenancy relations and common rights in Korean
farm villages. Ume hinted that he had been rushed by It? into drafting the
land certification system before he had a chance to grasp the complete na
ture of Korea's land system. Although he complied with It?'s wish to create
measures that would ensure the safety of land transactions by the Japanese,
Ume would rather have waited for the completion of the government
sponsored survey of Korean land customs before drafting any laws.
Ume's critics viewed the statements above, not without justification, as
his attempt to avoid being blamed for overturning Korea's land system.86
More significant, however, one can see here that Ume was cautiously dis
tancing himself from at least a certain part of the resident-general's Korean

83. Chosen Sotokufu, Kanshu chosa hokokusho, Nos. 21 and 25; Ume, "Fudosan,"
pp. 8-9.
84. Ume's son reminisced that his father was firmly opposed to annexation. Ume Toku,
"Chichi o kataru," in Takaru Shigeru, ed., Kitte ni natta Nihon bunkajin (Tokyo: Hifumi Shob?,
1953), p. 156.
85. Yi Hay?ng, Korean justice minister, complained to It? in 1907: "When Japanese farm
ers come to villages, they cut off waterways that have been in communal use for ages and pre
vent Koreans from using water resources. People attack me, saying that these unfortunate situ
ations facing Koreans were caused by the justice minister who allowed foreigners to own land
through the certification system." Kim, ed., Nikkan gaik? shiry? sh?sei, Vol. 6, Part I, p. 447.
86. See Nait?, "Kankoku ni okeru Urne Kenjir? no ripp? jigy?," p. 15.

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 28 Journal of Japanese Studies 34:1(2008)

legal policy. It would be a mistake to argue that Ume harbored ill feelings
toward his patron or failed to remain loyal to his legacy. Yet Ume wanted to
stress the fact that he came to Korea not to write politically motivated, hap
hazard regulations "to meet temporary needs," such as administrative laws
related to the governing of Korea, but to establish the five codes of "civil
law, commercial law, criminal law, civil procedure, and criminal proce
dure." 87 What he preferred was not a certification system but a full registra
tion system recording the titles and contracts of sale. The new land laws
should have been preceded by an extensive land survey. His claim that he
was not in favor of halfway measures in Korea evinces that he perceived his
job as creating permanent modern legal codes in Korea commensurate with
any "civilized codes" in the world.
It has been pointed out that one of the ironies of modern Japanese his
tory is that the leading intellectuals of the Japanese enlightenment, such as
Ume and Fukuzawa Yukichi, were assimilationist. The disastrous colonial
legacy of assimilation (donghwa or d?ka) was so devastating that the mean
ing of the term has been blurred under the weight of emotional baggage. The
Japanese colonial practice of urging Korean people to adopt Japanese names
was an example of an inherently unjust assimilation policy, bent on erasing
the ethnic and national identity of the colonized. It is important to note,
however, that in the late nineteenth and early twentieth centuries, the colo
nial theory of assimilation was framed mainly in terms of political and legal
assimilation, as opposed to the cultural assimilation of the natives. In the
contemporary colonial debate in France, assimilationists grounded their
theory in the idea that the natives should be subject to French law that ex
emplified universal rights.88 In this sense of assimilation, that is, granting
natives the same legal guarantees as those in the metropolis, there is little
irony about Meiji liberals' support for assimilation. Ume's role in Japan's
civil code controversy has often led him to be misrepresented as favoring
the destruction of local traditions and customs. As noted above, however,
Ume's colonial theory of assimilation did not call for substituting the cus
toms of the mother country for those of the native people. Ume opposed the
sweeping imposition of Japan's law in Korea and instead argued for the es
tablishment of an independent code that would incorporate the indigenous
customs and practices of the Korean people.
It?'s assassination by a Korean patriot in November 1909 dealt a deci
sive blow to Ume's effort to save his work. An assembly was held on
May 19,1910, at Tokyo Imperial University, dedicated to the memory of It?.

87. Ume, "Kankoku no gapp? ron to ripp? jigy?," p. 739.

88. Arthur Girault, Principes de colonisation et de l?gislation coloniale (Paris: Larose,
1895). Martin Deming Lewis, "One Hundred Million Frenchmen: The 'Assimilation' Theory
in French Colonial Policy," Comparative Studies in Society and History, Vol. 4 (1962),
pp. 129-53, analyzes the debate over assimilation as a colonial theory at the Congr?s Colonial
National (1889-90).

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 Kim: Ume Kenjir? 29

In his testimonial, Ume wanted to set the record straight for It?'s legacy and
his own Korean campaign. He emphasized that it was after It?'s resignation
as resident-general that the decision was made to entrust Korean judicial af
fairs to Japan:

After the late prince resigned from the office of resident-general and the
current resident-general succeeded to the office, as you are all aware, an
agreement was signed to entrust [Korea's] judicial power to Japan. Its results
were as follows. Until then, Japanese were appointed to the Korean courts,
and when they conducted trials, they did so as Korean courts' judges. The
laws they applied were of course Korean laws. But by last year's agreement,
it is now Japan's courts, Japan's judges, that conduct trials according to
Japan's laws.89

One cannot fail to notice here a tinge of disapproval and disillusion, al

though he halfheartedly added that "this is a sort of progress."90 Ume had
tirelessly worked to write Korean laws. In order to end consular jurisdiction,
"it was necessary to establish well-equipped codes" actively in imitation of
"law codes of civilized countries."91 He had pushed toward this goal all
these years, but now his work was on the verge of collapse. Yet Ume mus
tered a sense of lofty confidence in his mission. The Korean civil code was
still necessary. Therefore, he declared, he would continue his efforts for
codification in order to fulfill the goals of the late prince.
With the final annexation decision passed by the Japanese cabinet in
June 1910, the fate of Ume's Korean code was now sealed. Ume went back
to Seoul in July. It is not clear what he was doing in that city of impending
doom. He contracted typhoid and, after suffering more than two weeks of
high fever, died in Seoul on August 25, 1910. Ume's body was brought to
Japan on August 29, the same day the annexation of Korea was proclaimed.
In Korea, the codification projects he had led came to an abrupt halt. The
Code Investigation Bureau was abolished the following month.

Conclusion
With Ume's death and Korea's annexation came the end of the initiative
to establish an independent judiciary and create modern codes in Korea. The
first Governor-General Terauchi Masatake stated in 1911: "[Korea] has a
different history from that of Japan, and its practices and habits are all very
different," but "now that Korea was entrusted [to Japan] through annexation,
creating independent law was no longer necessary and, upon this consider
ation, I suspended Mr. Ume's legislation campaign."92 Terauchi's remark

89. Ume, "Ito ko to rippo jigyo," p. 976.

90. Ibid.
91. Ume, "Kankoku no h?ritsu seido," Part II, p. 796.
92. Speech at the 27th Imperial Diet (February 1, 1911), cited from Oguma, "Nihonjin"
no ky?kai, p. 149.

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 30 Journal of Japanese Studies 34:1 (2008)

summarizes in a way the core dilemma of Ume's work. His foremost goal
had been to abolish extraterritoriality by means of a modern code, to be
drafted following the Western model. Once it became certain that Korea
would become Japan's colony, however, his argument for an independent
Korean code seemed moot, as the imposition of Japanese law was naturally
expected to follow.
In an article published posthumously on "The Legal System in Korea
after Annexation," Ume wrote:

If we consider the Korean situation in theoretical terms, Korea becomes

part of Japan, and applying Japan's legal system to Korea becomes a natu
ral result. Starting first with constitutional law, civil law and criminal law
all will be imposed on Korea. However, the question of whether it is possi
ble to apply them directly would require study of the examples of a variety
of legal systems.93

He still resisted the indiscriminate imposition of Japan's law in Korea, but

he could not deny that the direct application of Japanese law in the colony
was fully justified. After 1909, as he was compelled to rationalize his codi
fication campaign in the postannexation scenario, his argument became pre
cariously untenable. As long as Ume perceived Japan's civil law as the law
of a civilized country, and as long as he was unable to argue against the very
issue of annexation, he could not forcefully refute the imposition of Japan
ese law in Korea, whether in part or in entirety.
Ume's colonial theory, mainly discussed in the context of Taiwan, en
tailed creation of a legislative assembly based on European democratic in
stitutions, in which the colonized people would have electoral rights and be
governed by native laws. This is likely what he envisioned for Korea when
he reluctantly accepted the reality of annexation. Ume justly pointed out that
colonial law would require full consideration of unique Korean situations
and customs. Short of outright rejection of annexation, however, his elo
quent defense of the independent Korean code sounded contrived and rather
hollow. As he tried to harmonize the imperial system with the fundamental
principles of law, he could not avoid the criticism that his colonial theory
was no more than a constitutional fiction.
It would be unfair, of course, to blame Ume for failing to oppose an
nexation or even accuse him of being contradictory. His goal in Korea was
to help construct a modern legal state endowed with equitable codes that
would stand against challenges in the international community. Ume, an en
lightened democrat, seemed to believe, much in line with the turn-of-the
century French liberal colonial argument, that imperialism did not need to
conflict with liberal democracy. Ume shared It?'s belief that Korea could

93. Ume Kenjir?, "Heigo ato no Kankoku hosei," Keiji ho hyorin, Vol. 2, No. 9 (1910),
p. 1035.

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 Kim: Ume Kenjir? 31

benefit from working with Japan in its goal to maintain independence. He

was convinced that, at the beginning of the twentieth century, Korea could
avail itself of Japan's intervention as a sort of stimulus to renew its strength.
Indeed, his misfortune lay in his belief that he could promote both Japanese
and Korean interests in the true fashion of a universal natural law theorist.
Unfortunately, it was this idealism of Ume, trying to defy the logic of the
time that Japan was Korea's foe, not friend, that was thrust against the stric
ture and dictates of imperial legal reform and, it can be further suggested,
against the bureaucratic infighting within the Japanese government.
The fact that the introduction of Western legal institutions and law was
mediated through Japan and that the first attempt at the codification of mod
ern Korean law was undertaken by a Japanese jurist inevitably aroused sus
picion and mistrust in Korea, not just among the populace but among histo
rians. But Ume's undertaking in Korea serves as a powerful testimony to the
need for a more dispassionate and well-rounded appraisal of colonial legal
history. One does not need to embrace the discourse of Japan's mission civil
isatrice or condone the repression and exploitation that marked the 40 years
of colonial rule in order to attempt to assess accurately the significance of
legal developments during the Japanese period. Korean legal history can
perhaps be better understood as something of a continuum rather than dis
junctions meted by colonialism. Korea's first Civil Code was promulgated
in 1958 and took effect in 1960. Ume occupies an important page in the
evolution of Korea's modern law.
There is a coda to Ume's saga in Korea. Immediately after Ume's death,
the results of the four-year survey of Korean laws and customs were edited
by his student, Oda Kanjir?. The Report of Customs Investigation was pub
lished in December 1910 under the direction of Kuratomi, in the capacity of
the former head of the Code Investigation Bureau and the chief of the Jus
tice Department in the newly established Chos?n government-general. Ku
ratomi dedicated the volume to Governor-General Terauchi, who unleashed
the forceful imposition of Japanese law and militarism on the Korean peo
ple. The volume thus bears the name of Kuratomi, and not that of Ume, who
literally met his death while he was laboring on it. Such was the crux of a
Meiji liberal reformer's sorrow and tribulations in protectorate Korea.
St. Cloud State University

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