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“Being” and “Doing” (1958)

Those Who Fall Asleep Over Their Rights Back when I was a student, I attended a lecture by Professor Suehiro Gentarō on “prescription” in the civil code, and I recall him explaining the provision as follows. If a corrupt borrower takes advantage of his lender’s failure to demand repayment within a set period of time and shamelessly pockets the money, he benefits, while the timid, good-natured lender ultimately loses his claim to that money. This outcome struck me as terribly harsh and unfair when I first heard it, but underlying this legal provision is the assumption that those who fall asleep over their rights and do nothing over time to assert or protect their claims do not consider the civil code worth upholding. While I ultimately came to see the reasoning that underpins the provision as reasonable, it was the phrase “those who fall asleep over their rights” that left a strangely powerful, lasting impression. If a person does not assert his or her rights before the statute of limitations lapses,1 if a person is simply content with being the creditor and takes no action to ensure repayment, then, according to the logic behind the legal practice of prescription, that creditor will ultimately lose his or her claim. When I think about that logic now, I am struck by the extremely important principle that it implies–a principle that extends well beyond a single provision in the civil code. To explain what I mean, let us turn to Article 12 of the Japanese Constitution, where the following phrase appears: “The freedom and rights secured by this Constitution must be preserved by the constant efforts of the People.” This statement not only “Being” and “Doing” (1958) Maruyama Masao