The Culture of Legal Change: A Case Study of Tobacco Control in Twenty-First Century Japan

Abstract

This Article argues that the interaction of international norms and local culture is a central factor in the creation and transformation of legal rules. Like Alan Watson's influential theory of legal transplants, it emphasizes that legal change is frequently a consequence of learning from other jurisdictions. And like those who have argued that rational, self-interested lawmakers responding to incentives such as reelection are the engine of legal change, this Article treats incentives as critical motivators of human behavior. But in place of the cutting-and-pasting of black-letter legal doctrine it highlights the cross-border flow of social norms, and rather than material incentives, it concentrates on a less easily measured factor - cultural incentives - and highlights its impact on the agents and outcomes of change. By identifying international norms as the inspiration for domestic legal change and local culture as a mediating influence that transforms international norms into domestic law, the Article seeks to contribute to the growing scholarly interest in the interaction of culture and law. It shows legal change to be a culturally contingent process dependant upon the interaction of the local and the global, rational actions and cultural dispositions.

Keywords: legal change, legal culture, Japan, tobacco

JEL Classification: I18, K13, K23, K32, K40, Q18, Z10