The Study of Japan in Comparative Law
The Role of Japan and Its Law
Japan is one of the world’s leading economic powers and plays a keypolitical role in Asia. For a long time, Japan was the only non-Western nation that stood on an equal economic and political footing with its industrialised Western counterparts; it achieved this while nonetheless retaining its Asian historic and cultural contours. Japan is the only Asian country that has for more than a century possessed a modern, functional Western-influenced legal system. For decades, this legal system has been firmly embedded in a democratic society.
There is no doubt of the enduring importance of Japan – and thus also of Japanese law. The influence of Japanese law on other East Asian countries has been and remains considerable. Modern Japanese law constitutes a mixed legal system. As a result of Japan’s multi-layered history of legal reception, today it exhibits a mosaic of legal concepts from various legal orders. Not least among these influences is the German system, although it is embedded in a different legal tradition and legal mentality.
The year 2011 marked the 150th anniversary of the friendly and historically harmonious relations between Japan and Germany (initially between Japan and Prussia). From early on, these relations were also marked by legal exchange. This tradition should continue to be cultivated. The opportunity should also be taken to intensify German involvement in Asia through legal cooperation with the partner country of Japan, and thereby to respond to the future challenges which arise from the continually growing political and economic significance of Asia.
The Development of Law in Japan
Modern Japan has a multi-layered mixed legal system. The early history of the country’s legal development begins with a religiously influenced form of law, the origins of which extend back to the early cultures of the South Pacific. Numerous elements of the Japanese notion of law, which continue to characterise it to the present day, emerged during this early phase in the first centuries of the Common Era. These characteristic elements include an emphasis on consensus-oriented conflict resolution. The comprehensive reception of Chinese law and Chinese state structures began towards the end of the 6th century and continued throughout the 7th and 8th centuries. The substantial cultural differences between Japan and China, however, meant that Confucian notions of order had to be significantly assimilated to the Japanese context.
A second majorwave of legal transfer, this time from Europe, began following the watershed year of 1868, which saw the beginning of the Meiji Restoration. The country began to open up and systematically adopt Western institutions. This represented a historical turning point in the development of Japan. In an unparalleled cultural achievement, Japan was able to construct a modern, functioning legal and justice system within just three decades, becoming the first Asian country to do so. This system was particularly modelled after the German system, but also incorporated significant French and other European influences. For historical reasons, a third major wave of legal reception took place during the Allied occupation after 1945, this time closely orienting Japan to US law. Alongside constitutional law, this transfer focused on economic law. The newly incorporated institutions were in some cases superimposed on those previously adopted from Europe.
All of the transplanted western legal concepts operated in a social context shaped by a different cultural tradition. As a part of its longstanding cultural heritage, Japan has a distinct centuries-old tradition of the regulation of social conflicts, one which is fully independent of the Roman legal tradition that shaped Europe. This tradition continues to this day to be strongly characterised by cooperative behaviour and communitarian structures. It is from these varied strands of development that modern Japanese law has synthesized into a genuinely unique legal system, one which cannot be clearly assigned to any one of the conventional legal traditions and thus holds great comparative law interest. This is all the more true given that, after decades of success, the Japanese economic and regulatory model found itself at a major turning point at the beginning of the 21st century as it sought to take the demands of a globalised economy into account. Japan’s experiences in this area represent a valuable learning opportunity for German observers.
Comparative Legal Study of Japan – Tasks of the Centre of Expertise
Many of those who are interested in Japanese law face a significant language barrier. This reality underlies one of the key focal areas of the Institute’s comparative work concerning Japan: A first step is the creation of a platform to disseminate reliable information on Japanese law in Western languages. This has been achieved through the establishment and international orientation of the Zeitschrift für Japanisches Recht/Journal of Japanese Law, which is edited at the Max PlanckInstitute in Hamburg.
The technical standards that the journal sets for engaging with Japanese primary sources, especially regarding the complex transcription and translation of Japanese specialist terms, have become well-established in Germany. The journal also offers in-depth analysis of Japanese law as encountered in practice. Due to the specificity of the context and the broad range of its influences, such an analysis has also entailed the development of an international network of experts drawn from different legal traditions who can serve as authors. This network has demonstrated its value at many comparative symposia addressing the triad of Europe, Japan and the US. Additionally, both scholars and practitioners seeking information on Japanese law depend on the availability of a concise, Western-language reference work on this law or at least on significant parts of it. The nearly 2,000-page-long Handbuch Japanisches Handels-und Wirtschaftsrecht (Encyclopedia of Japanese Commercial and Business Law), prepared at the Institute and published in 2011, provides such access.
Alongside making Japanese law accessible to Western audiences, a second fundamental step is to ensure that its insights benefit comparative analyses. This is achieved, for instance, by increasingly incorporating the Japanese legal perspective into the drafting of comparative law analyses for the German legislature. A prime example is the comprehensive discussion of Japanese law that was included in the Institute’s expert opinion on mediation, which prominently featured Japan’s wealth of historical experience with various forms of extra-judicial dispute resolution.
Comparative law research on non-European countries has many pitfalls. It particularly demands that both the specific cultural context and the social and institutional dynamics of the country be taken into account. Engagement with Japanese law stands as a prime example of such challenges. It requires – to an even greater degree than is already necessary for all serious comparative law efforts – that the traditional toolkit of comparative law be expanded to a culturally comparative, institutional economics approach incorporating cultural anthropology, sociology, economics and politics; in short, comparative law in its truest sense as envisioned by Ernst Rabel.
It is particularly important to recognize and make clear the discrepancy between the law and extra-legal mechanisms of regulation. One must therefore resist the seeming attractiveness and deceptive certainty of legal comparisons that claim black letter law-based parallels where in fact true differences shape the legal reality. An example of this is the widely held but nonetheless inaccurate belief in a persistent congruity between original European or American law and the law as it is configured and further developed in Japan.