Law and Japanese

Japanese law-consciousness

The Japanese is apt to avoid going to court.

Takeyoshi Kawashima (1902-1992), a prominent jurist, analyzed most Japanese have the thought framework of which legal norms are indefinite and are not a part of norms. Accordingly, they are expected to enforce social discipline not by a legal system, but by influence based on special relationship between those concerned including a relationship of rank.

In other words, the Japanese might regard a legal system as a means of preserving social order not of realizing justice.

In contrast with Kawashima’s “Culture-oriented Theory”, Prof. John Owen Haley (1942-), distinguished scholar of comparative law, focused on the malfunctions of the legal system including long legal proceedings and shortage of attorneys. Similarly, Prof. Masao Ohki (1931-)stated that there is a judicial insufficiency encompassing a lack of a judge and a lawyer in Japan. These are called “Malfunction Theory.”

Prof. John Mark Ramseyer (1954- ) at Harvard Law School, argues they do not use litigation because a composition is easy to be made in Japan. With an economic approach, Ramseyer tried to prove his hypothesis that Japanese judicial decisions have high predictability and they are likely to select an amicable settlement, not a lawsuit.
He pointed out a different view from a traditional thought that Japanese law plays only a trivial role or is culturally determined. This is designated as ” Predictability Theory.”

Leave a Reply

Your email address will not be published. Required fields are marked *