By Stephen Givens* PROLOGUE This essay grew out a presentation I gave, as one of several foreign legal academics working in Japan, on the theme “Key Words for Understanding Japanese Law.” Of course I recognized from the outset that reducing the essence of a legal system (or any other complex phenomenon) to a single “key word” would entail a loss of nuance. But I thought (and still think) the assigned theme was a fair and valuable one. After all, cartoons and caricatures can be illuminating. There’s nothing necessarily wrong with putting an equivocating academic’s feet to the fire and making him answer the question definitively, “What is it about Japanese law.if anything.that is so different?”
* Professor, Faculty of Law, Sophia University.
** The author thanks Todd Landau, Hugo Vanneck, and Nick Benes for their generous help with this essay.
What I did not foresee was that I would be one of the presenters foolhardy enough actually to accept the challenge of reducing Japanese law to a single word. The key word I chose was “Vagueness,” as you will see in more detail if you keep reading. What I also failed to anticipate was the controversy my presentation would arouse, at least among the foreigners in the audience. A quarter century’s absence from America . while living and working in Japan -had rendered me insensitive to the fact that making bold generalizations about cultures, bringing attention to cultural differences, is now dangerous territory in American academic circles. As I delivered my presentation, I saw foreigners in the audience shaking their heads and dropping their jaws in seeming disbelief, as if to say, “No, you can’t say that!” Meanwhile, the Japanese members of the audience seemed to be smiling in recognition, apparently unaware that cultural profiling these days is a breach of good manners outside Japan.
Japanese scholars and journalists, and the Japanese in general, have never been inhibited about exploring, explaining and celebrating cultural differences between themselves and foreigners. Japan continues to be conscious of, and proud of, its “Japanese-ness” andcultural “uniqueness,” just as it is unashamedly entertained by television documentaries showing the strange customs and eating habits of non-Japanese natives around the world. Against this background, it should come as no surprise that a branch of Japanese legal scholarship has been devoted to explaining a unique “Japanese legal consciousness” that fundamentally differs from “Western legal consciousness.”
During the century following the opening of Japan to the West, Western scholars and observers of Japan, from Lafcadio Hearn1 to Ruth Benedict2, also unselfconsciously explained andaffirmed sharp cultural dichotomies between Japan and the West. As regards Japanese law, Western observers of this period were consistent in their claim that the Japanese people, over a long and ancient history, have shown a weak to nonexistent sense of individual rights and the rule of law. Of greater importance under Japanese law are notions of family and public sentiment.3
However, by the time Japan emerged as a major economic power in the 1970’s, and at the same time that foreign legal scholars began to take a more specialized interest in the Japanese legal system, the ideological and intellectual climate in academic circles outside Japan had changed. The main tendency of more recent Western scholarship on the Japanese legal system has been to de-bunk Japanese exceptionalism as “myth”4 or “urban legend”5 and to shy away from an anthropological approach altogether. In rough approximation, the more recent school of non-Japanese scholars of Japanese law seem to be saying that “people are people” everywhere, and that differences in behavior (such as tendencies to litigate or appoint outside directors) do not reflect innate culture, but rather reflect objective institutional and economic constraints to which all human beings respond universally in the same way.
The Anglo-Saxon idea of inflexible law is the idea of a justice impartial and pitiless as fire: whoever breaks the law must suffer the consequence, just as surely as the person who puts his hand into fire must experience pain. But in the administration of the old Japanese law, everything was taken into consideration: the condition of the offender, his intelligence, his degree of education, his previous conduct, his motives, suffering endured, provocation received, and so forth; and final judgment was decided by moral common sense rather than by legal enactment or precedent. . . . T]he ordinary person would not dream of attempting to claim a legal right opposed to common opinion. Family and public sentiment are still more potent than law.
In the closing section of this essay I will offer a few comments on the political and ideological ironies of more recent Western academic writing on Japanese law. For now, suffice it to say that, in my view, scholarship in this vein is itself culture-bound: it exemplifies precisely the universalistic Judeo-Christian values (“God created all of his children equal”) to which well-meaning Western missionaries have failed to convert the pagan natives over the centuries.
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1.Lafcadio Hearn (1850 . 1904), who lived in and wrote about Japan from 1890 until his death in 1904, describes Japanese culture as lacking the sense of individual consciousness and individual legal rights that are associated with the West.
2. Ruth Benedict (1887 . 1948), whose study of Japanese culture The Chrysanthemum and the Sword (1946) contrasts Western “guilt-based” mentalities with Japanese “shame based” mentalities.
3. See, e.g. LAFCADIO HEARN,JAPAN:AN ATTEMPT AT INTERPRETATION (1904) 353, 387.
4. John O. Haley, The Myth of the Reluctant Litigant, 4 Journal of Japanese Studies 359 (1978).
5.YOSHIRO MIWA &J. MARK RAMSEYER,THE FABLE OF THE KEIRETSU:URBAN LEGENDS OF THE JAPANESE ECONOMY (2006). In a similar vein, see PETER N. DALE,THE MYTH OF JAPANESE UNIQUENESS (1986).