Translating Tanase: Challenging Paradigms of Japanese Law and Society

Abstract

This paper, presented at a conference honouring the work of leading legal sociologist Takao Tanase, shows how a recently translated selection of his influential works contributes to debates about the best paradigm to explain Japanese law, as well as about the relationship between law and society more generally.

The culturalist paradigm prevalent until the 1970s argued that the Japanese don't like law, due to engrained Confucian traditions emphasizing harmony and hierarchy. Institutional barriers theory countered that the Japanese can't like law due to impediments discouraging engagement with the legal system. The elite management paradigm argued that conservative politicians, regulators and big business interests promoted this situation, especially after World War II, to manage the pace and direction of social change in Japan. In other words, the Japanese are made not to like law. By contrast, the economic rationalist paradigm stressed that often the Japanese do like law, with at least some comparatively clear-cut legal rules casting a clear shadow over out-of-court dispute settlement and deal-making.

Over the last decade the strengths and weaknesses of these various theories have been explored, and tested particularly in the context of a raft of socio-legal transformations underway in Japan. More studies are adopting a hybrid paradigm, applying more diverse methodologies to show how sometimes the Japanese like law, but sometimes they don't. Tanase's work contributes to this new trend by re-emphasising a neo-culturalist or communitarian impulse in (post-)modern Japanese law, and legal systems more generally. His conclusions and evidence are rooted in a hermeneutical understanding of our world, challenging epistemology that sharply distinguishes facts from norms, and thereby extreme liberal models of law and society. In his studies selected for translation, this approach is applied to fields as diverse as legal ethics, family law, tort law, civil litigation, and constitutional interpretation. Tanase's work is particularly refreshing and timely given the pace and breadth of law reform underway in Japan, but it also holds broader lessons both for jurists in other complex industrialized democracies, and for those engaged in Japanese Studies more generally.

Keywords: Japanese law, legal theory, law and society, comparative law

JEL Classification: B30