Law and Community: A Critical Reassessment of American Liberalism and Japanese Modernity

This is the title of our translated and edited collection of essays written in Japanese over the last two decades by a leading legal sociologist in East Asia and world-wide, Professor Takao Tanase (in press, forthcoming January 2010 from Edward Elgar). Leon Wolff and I hope to present an outline at the Inaugural East Asian Law and Society Conference to be held on 5-6 February 2010 at the University of Hong Kong, supported by a Collaborative Research Network within the (originally US-based) Law and Society Association.
Tanase’s empirically-based critique of legal legalism is important not only for the United States, which tends to represent an extreme case. It also helps in assessing developments in East Asian countries increasingly exposed or attracted to American views of how law does and should relate to society, including Japan – but also perhaps China (see eg Tanase, 27(3) Mich J Int’l Law, 2006). Tanase’s neo-communitarian critique also presents a challenge to liberalism more generally, making his reassessment particularly timely for two reasons. First, the Global Financial Crisis was prompted partly by a particular liberal vision of how markets do or should operate. Secondly, countries like Japan have now experienced a decade of reform discussions and initiatives allegedly aimed at “Americanising” the judicial system and the legal profession.

Our presentation begins by introducing Tanase’s hermeneutic approach, sceptical about sharp distinctions between facts and norms, as applied especially to lawyers’ ethics. We then briefly sketch the key arguments and findings in ensuing chapters of Tanase’s book, including family law, tort law and constitutionalism. (See also my earlier round-up, along with others’ reactions to our draft translations featured at a Sho Sato conference at UC Berkeley some years ago.) We then devote considerable attention to the final chapter of the book, which addresses a longstanding bone of contention among those developing and applying various paradigms or theories about how law interacts with society in Japan (and potentially elsewhere): civil litigation rates. Tanase’s quantitative data, updated for this presentation, show the pull and power of social norms and structures – or community – in relation to the law. The empirical studies undertaken by others, combined with Tanase’s interpretative framework, reinforce this lesson in the other socio-legal fields discussed.
Our presentation concludes first by suggesting, like Tanase, that this vision of law and society or community not only better describes the world around us. It also holds some normative insights, although Tanase’s theory also requires us to be critical also of certain types of community relations. Perhaps it is not such a bad thing, for example, for judicial system reform to proceed in Japan more slowly or less pervasively than hoped for by some proponents of liberal legalism.
Lastly, we locate Tanase’s results and approach within the broader and evolving academic literature in English on Japanese Law. In particular, his work goes well beyond an earlier “culturalist” paradigm, joining a growing corpus of work that take culture and social norms more seriously in a variety of sophisticated ways (Nottage, 39(4) VUWLR 755, 2009).

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.