2. COMPLEXITY OF LAW IN JAPANESE SOCIETY
Contemporary Japanese law is composed of systematic enacted law accompanied by case law that is thought to be a result of the application of the former. Legal specialists such as administrators, judges, lawyers and legal scientists as well as laymen usually resort to law books, and additionally case records, to gain first-hand information about valid law.
Foreign specialists who want to know Japanese law as well refer to those measures directly or through the writings of Japanese specialists. Such written sources are, indeed, indispensable to identify what Japanese law is.But they are insufficient to represent the reality of Japanese law as it functions in society. It is rather a general practice to use such expressions as “Exceptionally...” or “In reality...,” when speaking of law. What is “exceptional” or “real” law, may be not always be accepted as valid by legal specialists. It may, however, function in society as if it were valid law. Some people make choices in individual cases between two or more competing, conflicting ways of behaviour, attaching more weight to the as-if-valid law than to the valid one. They may sometimes be disapproved of by official agencies, but at other times be approved, implicitly or explicitly, with no official sanction applied by the people, or even by official agencies. From the legalistic point of view, specialists may do without consideration of such as-if-valid law. From a behavioural point of view, on the other hand, people cannot do without varying degrees of consideration of it, for such consideration may bring gain to them, and no one can prohibit others from thinking of their own loss or gain without any prerogatives to do so. Other measures than written law are thus needed to grasp and evaluate such behavioural law, whether negative or positive.
The concepts of “living law” and “law in action,” which were developed by the Sociology of Law and Realistic Jurisprudence respectively, may be among such measures. Truly they are of great use in collecting needed information about law other than “positive law” and “law in books.” But they are of little use in presenting the behavioural and cultural differences of law in various countries.
On one hand both concepts were devised in Western countries indifferent to the cultural characteristics of law among other peoples, and on the other, Japan is situated in a non-Western area with her own characteristic culture. Japanese law as actually functioning in society is too complex to be represented accurately by concepts so indifferent to cultural characteristics.Some legal theorists, especially motivated by anthropological requirements, have tried to devise new analytical tool concepts of law to denote cultural differences among peoples. Unfortunately however, their efforts have had no results that we can immediately rely upon. A noted but unresolved controversy between Max Gluckman and Paul Bohannan on the tool concept – whether to use English or the native language to express and analyse observed raw materials,2 shows the significance of devising culture-born concepts of law, as well as the difficulties. We are still faced with the requirement of devising enough new tool concepts to accurately represent cultural differences in law.
An analysis of contemporary Japanese law as functioning in society through the two working hypotheses raised in the Introduction is therefore expected to disclose the nature of a non-Western law and, at the same time, verify the hypotheses. Before the discussion, the Japanese legal history is briefly reviewed to give some background to the contemporary legal system, with special attention to indigenous factors and their relation to received factors.