A Misinterpretation or a Productive Diversion? ― The Rise and Fall of the 'Relationship of Reciprocal Interchangeability' Concept and the Possibility of Reception of a Legal Interpretation

Abstract

The Japanese legal system is sometimes described as a “laboratory of operative comparative law.” When the Government introduces a new legal scheme or makes important amendments to an existing law, an extensive comparative analysis is usually required. For Japan, the transplantation or reception of foreign law is not just a historical incident, but a contemporary phenomenon as well. As a result, for a Japanese legal academic, it is necessary to be well versed in at least one foreign legal system — mainly American or European in order to participate in the drafting of bills and the legislature’s deliberations, as well as subsequently the interpretation and application of laws. Theories and concepts that originated outside Japan are often used in Japanese discussions on the interpretation of the law.

This paper focuses on the process for receiving a specific legal concept or theory into Japanese law as an interpretive tool: the legal concept which is referred to as "relationship of reciprocal interchangeability” (hereafter “RRI”). This legal concept has its origins in the German Federal Administrative Court, and was introduced into Japan by an academic who was highly proficient in German law. When the concept was originally accepted in lower court cases, it underwent an important transformation, and produced various significant and partially unexpected impacts before fading from the stage. I trace this transformation process and examine the roles of various actors in the process: academics, attorneys, and the courts who, along with citizens as “users of the law,” took part in the process. Finally, using the reception process as an example, I offer insights regarding the legal reception/transplantation discussion, focusing not on legal texts, but on their interpretation from the perspective of recipients.

Keywords: Japan, legal transplantation, Administrative Law, relationship of reciprocal interchangeability

JEL Classification: K