The Law As It Is And The Law As It Should Be.
Bv Professor Tatsuo Hoshino.
The principle of separ乱tinga nation臼 powerinto three piぽ七日，i.c. Legislative, Judicial and Adminis七rativァe,was worked out by Montes‑
quieu. This is the fundament乱lprinciple upon which七he org乱niz‑ ation of the modern State is built. The cons七itiutionof Japan is no exception to this rule, and in Ar七icle 57 i七is specifiじally provided that jurisprudence should be admini的erecl・ in accordance with the provision丙oflaw But in the practice of law courts, oulァthepositive or codified law or custom law do not suffice; so decisions in accordance with equity or reasoning a印 supplementary become a po日itive necessity. In the Decree No. 10δpromulgated in the •8th year of 1¥leiji, Iteasouing i日recognizedas the source of law. (Incidentally we m可 beproud that the system of our law enables it七o keep pace with the development of別ciety). The effect of this Decree has been satisfactory up to this time. So it is certainly worth while to study what is mennt. by Hea自oning or Justice, which is undoubtedly one
of the most important problem円oflegal philosphy.
The writ臼r cit,eR a number of instances of our ConrもDecisions b乱sed.upon Heasoning， besides following th巴 po日itive or codified law内 乱ndexpl乱ins¥¥・hat may b日regardedas the spirit of law as given forth in the re日目onsof the De巴i日ionsdelivered by the highesもCour七 of Japan. H引 thenexpl乱lI凶（1)the uature of l川v, (2) the difference beもweenlaw and ethi巴s,and then七riesto visualize an ideal law to correct the defects inherent in the law a日it is. For that purpose the writer distinguishes the rules as they are (the Ge,rman Sein) from those R月theyshoukl be (the German Sollen); then, after explaining
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how social rules h乱1・e come to hum.an societv, he makes it clear that the ide:1J of law which isけncof snr h social rule凡 mnst be in もherealization of social justice.
A内七heidea of t初 日ia[justice appeals to the writer to白ervebest to explain the conception of ju泊ice,he propose;,; to inve，；七iga七e the true meaning of Hocial ju日ticefrom the philosophic乱lYiewpoiut. J [e is thus led to give an ontline of The Criticism of Practical Re乱回oni11g by K:wt, and then proceeds to the enmwiatiou of the、prinl'iple;; of social只olidarityas the guiding rules. He concludes with the remark that the hi可hest iuo乱I自 のffaw :ire, after all, nothing lrnt the rule丙foundedupon閉oci:ilsolidarity.
'rhe theory thu円 brongh七forward concerning the fundameuもal nature of law may be regardedもo coinciLlc wi七h the idea of neo‑
ideafom1乱ndneo‑naturalism.
If工ules‑m；一司も乱nJard暗 記 五istin a soじietyin the for・m of law, they are an exis七enceby themselve同inthat品ociety. In contraべ1is七inction もothe historical facts as well a日 tothe I乱w a丙 it is，もhe worlc1 i吟
always craiving for ideal地andard約. 'l'his is inevitable becau自eman is an animal with rea円O且ing. Thus i七b巴comes necessary to Htudy七he law as it should bo just as much as religeon or etl山s. This little study may therefore be regarded also a study in legal philosophy.
Trust Companys Mort号ageOn Beneficial Interests.
By Professor Fnl王ioNalrnne
Since the promotion of the interests ￡0 the benficiary is the
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fundamental object of七rustcompanies, in no c乱se should the latもer act against也einterests of the former. This i自主hecardinal principle strictly ob臼ervedin the transaction of trust business in England and the United States, and has also been incorporaもedin the Tru七日Actof Japan as provided in the Article日9and 22 as follows：ー
Article 9. Excepもwhenhe himself is one of出ejoint benefi‑ ciaries乱 trusteemay not enjoy the benefit of the trust in the name of any person whom臼oever.
Article 22. Aもrn日teemay neither m乱keもhe七rns七property his own nor乱cquireany rights therein under the n乱meof any person whomsoever.
As ihe larger part of the busine臼田of七heJapanese tru北comp姐 ies is七oaccept money in trust, it has long been七he subject of lively discussion by Japanese scholars whether trust companies may acquire rnortgage on beneficial interests on making loan to the beneficiary of money tru泊. As a matter of business practice, however, many a七rus七 company has been doing so. It happened this year (UJSH) that this very ques七ionwas brought up for h匂1before the Suprewe Courもin 七heMitsu Tnka七aniv. Aomori Trust Company case. The Court held that a trust company may lawfully伽ke mortgage on the beneficial intere目的． This ruling was made, the Court stated, because the holding of mortgage on出ebeneficial in悦rests by七rust comp乱nies was neither ag乱insもtheprovisions of Article 9 nor七hose of Article 22 of the TrusもAc．七
In七hewriters opinion, the judgement of the Supreme Court isぷ right so far as it;, conclusion is concerned, but is wrong in i七sreasoning.
He con日iders七hatthe case has nothing七o do with Article 22, because this Article refers to七hetrust esもate,but noもtothe beneficial in七erests. There can be no <Jnestion乱bout七hi臼interpreta七ionso long a自由eTrust Act of Japan distingui臼hes the trusも 剖tate from the beneficial in七ersも. Article 9 is七herfore,i且 the writers o~inion, the
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very key to the日olutionof this problem. According to the wri七erH
in七erpre七a七ion，もheprovision of tbi日Article b乱rsthe acqui日ition by trus七comp乱niesof mortg品geon出ebeneficial interests. But as a ma七terof fact, the tru日tcompanies take mortgage on the beneficial in七ere日tsal ways after the con日entof the benefici乱ryhas been given. This consent excludes七he日treng七h of Article 9, and makes the mor七gagevalid a日anexception七o七heprovision. Thus, Contrary七o 七heviews thus for held by 日cholarsand law cour七日，七hewri七erregards the provision of Article 9 as non~compulsory. No one h乱S日ought,as 七heprese凶 writerhas done, the justification of出e七rustees taking mor七gageon the beneficial interests in the na七ure of Ar七icle 9, and in that the writer claims the mer廿 ofa new and unique contribu七ion to the七heories乱bouttrus七business.
Political Aspects of the Freedom of the Seas・
By Professor Masatoshi Matsushita, Ph. D.
Internation乱ILaw baR come七oexist a自aresult of七he compro‑
mise唱 of conflicting in七ere七目的 of na七~on日， among which 吋heFreedom of七heS朗自 isone. There are, however, many disagreements on the problem of 七heFreed om of七heSe乱白 ． ・what is the reason? The answer given byもhewriter is tha七七he disgreernents lie not in the ques七ionof the validity of the principle bu七initR interpreta七ion. There is a general乱cceptance,for instance, that belligerents, in time
‑of war, may lawfully capture七he contrabands of war on neutral ve呂 田ls,although no two Sta七escan completely agree as to w.hat kind o長ar七iclesmay legitimately be regarded as contrabands of war.
It may be said, tha七七heinterpreta七ion,or the practical applica‑ tions of the Freedom of七heSeasp is lef七七o七he discretion of七he
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St乱tesconcerned. In other words, the pi‑oblem is politici,l rather ihan legal.
The writer briefly rcvi白wsthe history of七heproblem, especially もhat concerning Great Britain andもhe United Sta七es and decide丸
山：ita third maritime Power mu出ttake an active part in settling
七hoproblem.
Japan i円a nrnri time power of 七hefir臼七 rate mid fυr this reason has immense i凶erestsin the Freedom o:f the Seas". The writer argues tlmt, from her own national intere日tsrtS well as her int己rests in humanity, Jap乱11日houldadvocate the maximum appliれationof the Freedom of the Seaぱ．
The groumls for the con七entionam ns follows；←
1. As乱neutral, she would in any cc乱seg品i孔 benefitson ac日ount of her being a maritime Power.
2. As a belligerent, she would also be the gainer. She could impけrtraw materials from abroad which are essential in carrying
Dll七、1var.
A. As a bolligeren七ag:iinst G:reat Britain or the United States, she would gain more benefits than her enemy in import ing r乱w ma七erials from neutral countries. The maximum limitation of the .F'reeclom of the S日出百九 on the other hand, ni̲igh七cau臼ea Bhor七ageof raw materials in Jap:111, for the vessels of the neutral司 in七hePacific0臼8fLll t1可wellas of her own would be interfered by the belligor・ents;while Bhe could not, with her present wwy, effectiv白lyprevent the neutrals from臼hippingtheir good臼tothe enemy in the A七!anticOco九11.
13. As a bolligerent against China or Russia, "the Freedom of the Se乱日円 wouldb:・ing Japan 九mlthe neutmls to tho com1non intere日七s. Although白he migh七 日acrifi四 日orne stra民，gic advan‑
tages, she would on the other hand receive diplomatic sup‑ ports from neutrals, which should be regarded凶 moreuseful.
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