Kawashima and the Changing Focus on Japanese Legal Consciousness: A Selective History of the Sociology of Law in Japan, Masayuki Murayama
As this article by Masayuki Murayama makes clear, the roots of law and society scholarship in Japan extend back more than a hundred years, and the study of legal consciousness appeared as a central concern of Japanese researchers almost from the beginning.
Japanese legal scholars in the early twentieth century focused heavily on the disparity between “social practice” and the new Japanese civil code. They drew inspiration from the work of Eugen Ehrlich, the Austrian theorist who advocated the study of what he called “the living law” rather than an exclusive focus on the written law, as well as the work of the American scholar Roscoe Pound, whose sociological jurispruÂdence distinguished between the “law in books” and the “law in action.” By the 1920s, Izutaro Suehiro, “a civil law professor who later became the early founder of the sociology of law in Japan,” began to study the living law in Japan and later in north China. Other law professors followed his example, most notably Takeyoshi Kawashima, who, like Suehiro, also conducted research among rural villagers. After World War II ended, Kawashima emerged as the preeminent law and society scholar in Japan. Kawashima viewed legal consciousness as key to understanding the living law in Japan. Moreover, as Murayama explains in his article, Kawashima considered it essential to transform Japanese legal consciousness so the Japanese people would embrace democratic legal principles and processes.Perhaps the most enduring - and most controversial - aspect of Kawashima's work is his characterization of Japanese legal consciousness as distinctively law- averse. His research was understood to stand for the proposition that Japanese people - more than people in western societies - avoid asserting their legal interests because they prefer to resolve issues through non-adversarial processes.
Later scholars challenged what John Haley (1978) called “the myth of the reluctant litigant” in Japan and pointed to features of the legal profession or of the law itself to explain the country's low litigation rates. Others argued that there is nothing distinctively Japanese about law avoidance. Nevertheless, as Murayama demonstrates in this excerpt, Kawashima's exploration of the concept of legal consciousness and the debates sparked by his work have had a profound impact on the course of law and society research in Japan and elsewhere in Asia.Less than a year after the end of the war, Kawashima published an uncomÂpleted paper in which he contrasted the traditional Japanese normative conÂsciousness with the modern legal consciousness in the West. He argued that Japanese people widely failed to comply with economic regulation law even during the war, because the law required, in order to function, a modern legal consciousness, which Japanese people did not have. He strongly urged Japanese people to make the modern law epitomised in the post-war Constitution â€?our living law', in order to democratise Japan. In this and a later revised paper, Kawashima presented a model of â€?modern legal consciousness', drawing upon the Kantian notion of morality with specific reference to the categorical imperative. Concerning the Japanese pre-modern normative conÂsciousness, Kawashima presented the social relationships between tenants and landlords in farming and housing as social conditions that bred the traditional consciousness, while pointing out differences between the modern law and the Japanese consciousness in such legal areas as ownership, contract, family, public law and international law. During the 1940s and 1950s, he devoted himself to critically analysing traditional social norms in relation to their social backgrounds.
Kawashima continued to write on incongruities between the institution of law, in particular litigation, and the Japanese legal consciousness.
The best- known article in English is â€?Dispute Resolution in Contemporary Japan' and the one in Japanese is Nihonjin no Ho Ishiki [Japanese Legal Consciousness]. However, in these works, the focal point of argument clearly changed from the normative to the empirical. He compared the US and Japanese statistics of litigation cases in traffic accidents and argued that the Japanese pre-modern normative consciousness was a much more important cause of the small number of litigation cases than the cost and delay of litigation.His empirical argument proved to be more controversial than his normative one, inviting criticism from Japanese and foreign scholars, as we will see in the next section. Although the phrase â€?legal consciousness' was used as a direct translation of the Japanese words Ho Ishiki in the English translation of his argument on contract, Kawashima did not use the words â€?legal consciousness' in his own English article. He later pointed out that the English words â€?legal consciousness' were misleading, as he meant to include the subconscious as well as the conscious. He also noted that his idea of legal consciousness, Ho Ishiki, presupposed a theoretical framework of cultural sociology or anthroÂpology, but included psychological elements such as emotional/affective response, desire/volition and value judgment.
However, Kawashima wrote about not only the Japanese pre-modern attiÂtudes but also the social structure that supported such attitudes. He seemed to believe that subsequent social changes brought by further industrial urbanisaÂtion would produce a transformation of the Japanese legal consciousness and eventually an increase in litigation. He considered that there were various factors which would influence the legal control of a society and that conÂsciousness was not the ultimate fundamental determining factor of legal phenomena. But he argued that the reason for focusing on legal consciousness was that legal consciousness not only affected law-related behaviour, but also was the factor closest to law-related behaviour among relevant factors.
Crucially, Kawashima argued that legal consciousness was the most powerful predictor of legal behaviour, but that legal consciousness had a social foundaÂtion and would change as its social foundation changed. [... ]Though Kawashima maintained his normative model of law, he later integrated it into a comprehensive model of law in his search for the distinctÂively legal. He emphasised adjudication as the focal part of the distinctively legal. But empirical research on adjudication itself has scarcely been conÂducted since. Rather, it was Kawashima's arguments on legal consciousness which foreshadowed the enduring concerns of Japanese scholars with comÂparing law and practice as well as contrasting Japan and the West.
Kahei Rokumoto applied Kawashima's normative scheme to the legal resolution of civil disputes, and conducted an interview survey in Tokyo in 1968. He found that the social changes of Japanese society had increased demand for legal services, which was often satisfied by pseudo-lawyers, and that the use of formal legal machinery seemed determined by one's occupaÂtional position and particularistic social networks.
Rokumoto also worked on the empirical aspect of Kawashima's argument. Ever since Kawashima made his argument about Japanese legal consciousÂness, one of the challenges has been how to measure legal consciousness. How we could understand the relationship between Kawashima's normative model and empirical model also seemed to remain a question. It is difficult not only to identify what the legal consciousness is, but also to operationalise it in order to measure it empirically. Rokumoto refined the concept of legal consciousness into a narrow sense of legal consciousness, on the one hand, and legal conception, on the other. The former consists of three elements: knowledge about law, attitudes toward law and opinions about law; while legal conception is a framework to perceive law. Rokumoto explained that the narrow sense of legal consciousness would be the â€?general sense of justice' in English, more or less the equivalent of KOL (Knowledge and Opinion about Law), while the legal conception would be the â€?idea of law' or â€?Rechtsvorstellung'. The point of the distinction between the narrow sense of legal consciousness and legal conception is that the former can change for a rather short period of time, while the latter tends to persist.
Rokumoto argued that the Japanese normative conception â€?giri' was the ordering principle of preÂmodern Japanese society and formed the founding element of Japanese legal culture.Though not based on Rokumoto's framework, surveys of opinions and attitudes about the law have been conducted several times since the r970s. The surveys of Nihon Bunka Kaigi tried to measure characteristics of Japanese legal attitudes and found that respondents tended to have little interest in laws, expect flexible applications of legal norms, and split into punitive and lenient groups. These findings were understood to support the view that Japanese people have attitudes towards the law that are different from the West. In contrast, Masanobu Kato suspected that anecdotal episodes that Kawashima used as examples to show distinctive Japanese legal attitudes were misleading, and did not find peculiarly Japanese attitudes towards contracts in their international survey results.
The latest survey of Japanese legal attitudes was conducted in 2005 as a part of a large research project, The Civil Justice Research Project. The survey asked about legal attitudes and knowledge as well as social attitudes towards norms and disputes. Italso replicated the survey of Nihon Bunka Kaigi almost thirty years later. They found that Japanese attitudes had not changed signifiÂcantly except for becoming more punitive. However, full analyses of the survey results are yet to come.
Scholars who studied under Rokumoto or [Takeo] Tanase also addressed the issues Kawashima raised, but findings differed. Ichiro Ozaki, in his research on disputes among residents in eleven condominiums in a residential district of Yokohama, found that disputes tended to deteriorate to emotional exchanges, without much possibility of communication based on reason. But Kiyoshi Hasegawa conducted fieldwork on private agreements among resiÂdents, also in Yokohama, and found that residents could behave as rational actors who used the law in a reasonable way in their attempts to preserve residential environments.
Yoshitaka Wada, based on his research on disputes between tenants and house owners, argued that the meaning of dispute resolution had been changing in urban society from restoring harmonious relations to handling immediate disputes while letting a conflicting relation continue, and found that people mobilised the law as a strategic weapon to pursue their self-interests. Masaki Abe conducted field research on how local residents invoked the law for the purpose of environmental protection and found a similar tendency to that found by Wada: people mobilised the law as one of the instruments available to achieve their purposes.These four studies were conducted as qualitative research to contribute to both empirical and theoretical understandings of the use of the law, rather than identifying overall patterns of behaviour in Japanese society. Yet, these studies seemed to show that the actual behaviour of Japanese people could be different from and more varied than that which Kawashima described in his empirical arguments. They also seemed to limit the validity of his normative arguments.
It would be fair to note here that Kawashima's empirical arguments of legal consciousness began to be directly and frequently critically assessed by foreign as well as Japanese scholars from the late 1970s. The central issue of the debate was whether the Japanese normative consciousness was the main cause of a small number of litigation cases, though the theme was not always shared and the way of conceptualising the issue was different among scholars ([John O.] Haley; [Masao] Oki; [Frank K.] Upham; [J. Mark] Ramseyer; [Takao] Tanase; [Christian] Wallschaeger; [Kahei] Rokumoto).
The Civil Justice Research Project (2003-2008), directed by Masayuki Murayama, conducted three kinds of nationwide research to cover the whole process of problem-solving behaviour, from experience of a problem to the use of litigation. The first survey, the Disputing Behaviour Survey, consisted of a Consciousness Survey, which was discussed above, and a Behaviour Survey that enquired into problem experience and subsequent behaviour. The second survey, the Advice Seeking Behaviour Survey, focused on how people sought advice from various agencies and how they evaluated it. The samples of these surveys were randomly chosen from among Japanese people from twenty to seventy years old. The third research, the Litigation Behaviour Survey, took data from randomly chosen litigation cases at the district courts and then asked questions of the litigants and their lawyers.
The Disputing Behaviour Survey found little evidence to support the perception that Japanese people experienced few legal problems and that they were reluctant not only to make claims but also to reject claims. Patterns of behaviour in these early stages of problem-solving were surprisingly similar between Japan and the US, and significantly affected by the types of problem that people experienced. These findings raise questions about Kawashima's presumption that legal consciousness defines disputing behaviour and, even if legal consciousness did matter, to what extent and how it mattered concerning behaviour.
The Litigation Behaviour Survey found, contrary to the popular view, that litigants were less satisfied when litigation ended in settlement than when litigation ended in judgment.
For Kawashima, the need to study legal consciousness arose from his percepÂtion of a dramatic disparity between “modern law” as it had been enacted in Japan and longstanding social practices and customary law-ways that still shaped the behavior of many Japanese people. As he sought to explain why the living law differed so markedly from the written law, Kawashima and others generalized very broadly about legal consciousness as a national pheÂnomenon. Although the concept of legal consciousness remains dynamic in Asian law and society scholarship, most scholars today address it in a more particularized and contextual way. Rather than writing about imagined national traits or characteristics, they explore legal consciousness within parÂticular social groups.
Nevertheless, even in the most recent studies of legal consciousness in Asia, the role of the state - and of state law and legal institutions - remains important. Legal consciousness is typically viewed in relation to state law - as people embrace it, acquiesce to it, resist it, avoid it, or simply ignore it. Indeed, scholars have given attention even more broadly to transnational factors that shape the legal consciousness of particular individuals or groups. The impact of globalization on legal consciousness is the subject of some of the most recent studies and has generated debate among scholars. On the one hand, some have argued that the forces of globalization tend to produce a convergence in the legal consciousness of diverse peoples around the world, as they increasingly view their experiences in terms of similar liberal rule of law concepts. On the other hand, others contend that globalization has quite a different effect on legal consciousness. It may reinforce distinctive, locally based worldviews or may bring about transformations in worldviews that lead to avoidance of law in all of its plural forms. The latter view is reflected in the following article on globalization and legal consciousness in Thailand.
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