Japan

Historical Background

Sociolegal scholarship in Japan has a long history, which has been well documented by Akio Morishima and Nobuyoshi Toshitani. The field's founding father is Izutaro Suehiro (1888–1951), a professor of civil law at Tokyo Imperial University. Suehiro studied in the United States from 1918 to 1920 and met Eugen Ehrlich (1862–1922) in Bern, Switzerland, in 1920. Suehiro's 1921 treatise on property law argued that one should distinguish “law that should exist” from “law that exists,” and that the construction of the former should be based on research on the latter. Ehrlich's concept of “living law” clearly influenced this proposition.

Suehiro initiated two lines of activities. One was the creation of the Research Group on Judicial Decisions in 1920. He argued that judicial decisions concretized law and that research on factual bases of different decisions would show how decisions should be made under given factual bases. The other was the establishment in 1924 of the Tokyo Imperial University Settlement, a legal counseling center for indigent people. Suehiro thought that it would provide students with opportunities to learn about living law and would become an observatory for the deficiencies of existing law.

Suehiro also directed research projects on custom. He considered customs that were different from state law to be indications of social resistance to state control. His students went to villages to find out about customary rights in common or tenancy as living law. They conducted the last, largest project for Suehiro on customary law in Northern China between 1940 and 1942.

Suehiro attracted many bright students. Three of them were especially significant: Yoshitaro Hirano (1897–1980), Michitaka Kaino (1908–1975), and Takeyoshi Kawashima (1909–1992). Hirano taught at Tokyo Imperial University. He published “Class Struggle in Law” in 1925. He was the founder of the Marxist tradition in Japan. Although Marxists were [Page 836]persecuted during World War II, surviving members rebuilt the tradition after the war, and today it remains strong.

Kaino taught at Waseda University and Tokyo Metropolitan University. He studied the customary right of commons as a reflection of the feudalistic structure of Japanese society, and later became a practicing attorney to help in the farmers' movement. Such a combination of theoretical interests and practical concerns has been strong among Japanese sociolegal scholars.

Kawashima was a professor of civil law at Tokyo Imperial University. Throughout his life, he maintained a strong interest in the discrepancies between the modern legal system and the actual behavior of Japanese people. His approach changed over time. He started in the 1940s with the concept of Bewußtsein(awareness or consciousness) from Marxian social philosophy and moved to the social-psychological concept of attitudes in the 1950s. Kawashima argued that the Japanese people lacked the concept of right and, therefore, they did not see the law as the best way to mediate relationships. His paper in English on avoidance of the formal legal system in dispute resolution was widely read outside Japan. Some mistakenly thought he was a supporter of traditional legal culture, but he was actually an ardent proponent of the modernization of Japanese society. In the 1960s, Kawashima further moved to introduce North American social science more broadly, both in empirical studies on judicial decision making and his construction of a general theory of legal control. The first chair in the sociology of law at the University of Tokyo was created in 1967, only three years before Kawashima's mandatory retirement.

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