The Japanisation of American Law? Substantive Similarities, Compared to Formal Anglo-New Zealand Law

70 Pages Posted: 23 Aug 2010

See all articles by Luke R. Nottage

Luke R. Nottage

The University of Sydney Law School; The University of Sydney - Australian Network for Japanese Law

Date Written: August 22, 2010


Some proclaim the “Americanization of Japanese Law”, as economic liberalisation, political fragmentation, and the growth of legal services markets have accelerated in Japan since the mid-1990s. In product liability, corporate governance and other fields, Japan’s “law in books” has indeed been moving towards more of “the American Way”. Yet the changes are subject to the vagaries of all law reform, they often draw on European Union or other models as well, and they are certainly less pronounced when it comes to Japan’s “law in action”. Nonetheless, in a peculiar sense not appreciated by recent commentators, the Japan legal system has long shared much with its counterpart in the US. Both are much more open to what Atiyah and Summers famously outlined as “substantive” legal reasoning – open to “moral, economic, political, institutional or other considerations” – and they have developed legal institutions to support that vision of the (rule of) law. American commentators have trouble appreciating this commonality, since of course not everything is the same in Japan.

Nonetheless, this Paper suggests that a more important contrast still lies between both these legal systems, on the one hand, and the distinctly more “formal reasoning” oriented legal systems in England and for example New Zealand, on the other. The dichotomy also remains in many dimensions of contract law and practice in all four countries, as revealed in other work since the late 1990s. Yet each pair of countries differs in the extent to which it adopts more or less formal or substantive reasoning, depending on the particular area of contract law and practice under examination. In addition, what Atiyah and Summers term “second-order reasoning” – the underlying values and other considerations that these systems draw on to feed through their more substantive reasoning frameworks – probably differ even further. The spread of market forces – in economics, politics and other social spheres – does seem to be transforming Japan’s value system, and this is highlighted by some Western commentators as driving the “Americanization” of Japanese law. Yet ideology dies hard and, probably more importantly, supporting socio-legal institutions and communities continually redefine and reassert themselves. Thus, even comparing Japan with the US belies straightforward convergence. Adding countries in the English law tradition to the picture highlights further persistent divergence, despite admittedly powerful influences from the globalisation of law and socio-economic relations. Different traditions in legal reasoning explored in this Paper, not just economics and politics, help to explain why Japan is struggling to achieve a more formal (i.e. English-style) vision for the rule of law, implicit in wide-ranging Recommendations from the Justice System Reform Council in 2001.

Keywords: comparative law, Asian law, Japanese law, Commonwealth law, socio-legal theory, legal profession, courts, civil procedure

JEL Classification: K10, K30

Suggested Citation

Nottage, Luke R., The Japanisation of American Law? Substantive Similarities, Compared to Formal Anglo-New Zealand Law (August 22, 2010). Sydney Law School Research Paper No. 10/80. Available at SSRN:

Luke R. Nottage (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006

The University of Sydney - Australian Network for Japanese Law

Room 640, Building F10, Eastern Avenue
Sydney, NSW 2006

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