Japan’s Influence in Comparative Law: An Australian Perspective

The Max Planck Institute for Comparative and International Private Law in Hamburg is hosting a Festschrift conference for longstanding ANJeL advisor and personal friend, Prof Harald Baum, over 1-2 September 2022 on the theme of “Comparing and Transferring Law and Legal Expertise: The Role of Japan”. My presentation and essay honouring Prof Harald Baum begins by locating Australia’s burgeoning Japanese law engagement since the 1980s amidst multiple “worlds” or genres of Japanese legal studies worldwide, and the ambivalence of hitching Japanese legal studies to the wider rising star of “Asian law” engagement (Part I [reproduced below]). It focuses on the unique cross-institutional Australian Network for Japanese Law (ANJeL) that has promoted comparisons with, and understanding of, Japanese law since its establishment in 2002, including sustained support from Harald Baum (Part II). The essay surveys achievements and challenges in research, funded projects and publications in Japanese law (Part III), teaching and learning initiatives about Japanese law (Part IV) and wider community engagement (especially between the legal professions in Japan and Australia) also facilitated by ANJeL (Part V). It concludes that Japanese law engagement has remained surprisingly strong, despite the attraction of diversifying into Asian law more widely, although both fields are facing challenges nurturing the “next generation” of experts in Australia. 

I. Introduction: Consolidating Japanese Law in Australia

Japan has long been an attractive subject for comparative law. It first provided a rich case study of successfully “importing” law – first on Chinese, then Western models – interacting with indigenous norms and institutions. Japan then attracted interest for “exporting” law – in parts of Asia in the colonial era, to the West since its economic heyday in the 1980s, and to Asia and elsewhere over the last few decades as part of Japan’s overseas development aid programs. Japan has also been central to developing, and often empirically testing, theories as to how law interacts with society.[1] As is now well known, the main contenders are that “the Japanese don’t like law” (the culturalist theory), “they can’t like law” (the institutional barriers theory), “they are made not to like law” (the elite management theory), “they like predictable law” (the economic rationalist theory, implying instead that the legal system works well), or some hybrid approach.[2]

The world of Japanese law scholarship, however, has divided into several sub-worlds.[3] First, “Japanese law” comprises studies published in English, mainly by those versed in the Anglo-American legal tradition. The US sub-tradition – led by its elite law schools – favours analyses that engage big theoretical issues, often influenced by disciplines other than law (such as cultural studies, politics or economics), and related empirical work. Topics for analysis also tend to be quite wide-ranging. The English sub-tradition favours more black-letter analyses, with more focus on practical issues particularly in business law. Secondly, the German-language scholarship comparing Japanese law, “Japanisches Recht”, is likewise often quite black-letter in its approach but also covers quite a wide range of topics, thanks to a shared legal history. Thirdly, we have studies of “nihon-ho” written in Japanese, mostly by Japanese scholars for a Japanese audience, which of course cover all topics in Japanese law. The analyses tend to be mostly black-letter law but alongside a rich tradition of legal theory and sociology, sometimes impacting on legal analysis directly, and sometimes impacting indirectly as some Japanese scholars spend time in or with US law schools.

Australia generally follows the English sub-tradition, and its related variant of the common law based on more formal reasoning patterns and supporting legal institutions.[4] Yet by the 1980s, when Japanese law scholarship started to take off in Australia, it had already come under more influence generally from US approaches to legal analysis. (Scholarship in England itself was also developing more emphasis on “law in context” and substantive reasoning.) From the outset, therefore, Japanese law studies in Australia tended to combine both black-letter and contextualist analyses – albeit arguably with more theoretical ecumenicalism than say than in the US.[5] For practical reasons, namely burgeoning trade and investment relations, the focus did tend to be on business law topics. However, as bilateral relations broadened (including more geopolitical links and shared involvement in international treaty regimes), and as the numbers of Japanese law scholars and publications gradually grew, a wider array of Japanese law topics were researched and taught. This broadening and accretion arguably generated more influence from Japanese law for students, legal professionals, and makers of law and policy in Australia.

However, Australia engaged in, and was more impacted by, Japanese law scholarship from the 1980s, during the same period as Australia also ramped up its studies of Asian legal systems more generally. This was a double-edged sword. On the one hand, it allowed scholars to get university appointments and research grants by invoking the broader, and therefore more appealing, category of “Asian law”. Sometimes there were good methodological reasons for emphasising the wider category, given the historical or structural links between Japanese and other Asian legal systems, but there were also practical advantages for securing resources to pursue the study of Japan “within Asia”. As can happen with new fields of law, history or other fields of scholarship,[6] some commentary emphasised how “Asian law” was distinct from the field of comparative law. However, other work argued that the latter had become more interdisciplinary in approach as well, certainly by the turn of the 20th century.[7]

On the other hand, hitching Japanese law scholarship to the rising star of “Asian law” also had potential downsides. Research and publications could end up being directed at Asian legal systems, “hollowing out” Japanese law scholarship and teaching. Coupling Japanese with Asian law also risked undermining a Japan focus and commitment by Australian law schools if and when they reduced their enthusiasm for Asian law. Indeed, a recent short survey of Asian law scholarship for the Asian Studies Association of Australia suggests that that day is already nigh, arguably reflecting a reduction in government and other support across universities for Asia-focused initiatives more generally. Nonetheless, that analysis acknowledges that Asian law expertise remains underpinned by university centres or other institutional arrangements, which are difficult to unwind, thus making its impact more sustainable even if individual scholars find fewer appointments, research grants or teaching opportunities.[8] Even if the focus on Asian law does diminish in Australia, therefore, the institutional entrenchment of Japanese law may shield it from diminishing relevance and influence.

This essay therefore concentrates on a key organisation that has promoted comparisons with, and understanding of, Japanese law over the last two decades, catching the Asian law wave and hopefully riding it out reasonably well if and when that wave fades away. Supported from the outset by Harald Baum, the Australian Network for Japanese Law (ANJeL) has hopefully created sufficient critical mass to ensure that Japanese law continues to have widespread impact not just across academic research in Australia, but also to a significant extent within the legal profession and even some aspects of the wider community. Maintaining a solid base for the “export” of Japanese law into these sectors in Australia, in turn, should allow Japanese counterparts to productively “re-import” elements of Australian law and practice.

[1] L. Nottage, The Development of Comparative Law in Japan, in: M. Reimann and R. Zimmerman (eds.) The Oxford Handbook of Comparative Law (2019) 201, with a manuscript version at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3276469.

[2] M. Abe and L. Nottage, Japanese Law, in: J. Smits (ed.) Encyclopedia of Comparative Law (2020) (forthcoming), with a manuscript version of this contribution for a third edition at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3672112.

[3] L. Nottage, Japanisches Recht, Japanese Law and Nihon-ho: Towards New Transnational Collaboration in Research and Teaching, Journal of Japanese Law 2001, 12, 17; T. Ginsburg, L. Nottage and H. Sono (eds.), The Multiple Worlds of Japanese Law: Disjunctions and Conjunctions (Victoria, Canada 2001). Compare also H. Baum, Teaching and Researching Japanese Law: A German Perspective, in: S. Steele and K. Taylor (eds.) Legal Education in Asia: Globalization, Change and Contexts (2011) 89

[4] See generally L. Nottage, Form, Substance and Neo-Proceduralism in Comparative Contract Law: The Law in Books and the Law in Action in England, New Zealand, Japan and the U.S. (Ph.D in Law thesis, Victoria University of Wellington, 2002), available via http://hdl.handle.net/10063/778.

[5] M. Smith, Australian Perspectives on Asian Law: Directions for the Next Decade, in: V. Taylor (ed.) Asian Laws Through Australian Eyes (2007) 3. As an example of more black-letter Japanese law works led by Australia-based scholars, Veronica Taylor took over editing and writing for the CCH Japan Business Law Guide loose-leaf series from 2000-2006, followed by Luke Nottage until 2009. A volume comprising four of its chapters was also spun off as CCH Business Law in Japan, Volume 1 (2008, Singapore/Tokyo: CCH, ISBN 978-4-915845-08-6).

[6] Examples include how the leaders of the Enlightenment distinguished the preceding supposed “Dark Ages”, or how promoters of mediation differentiated that process as more purely consensual and hence more genuine “alternative dispute resolution” compared to arbitration: L. Nottage, Is (International) Commercial Arbitration ADR?, The Arbitrator and Mediator 2002, 20, 83, also at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=838044.

[7] Compare V. Taylor, Beyond Legal Orientalism, in: V. Taylor (ed.) Asian Laws Through Australian Eyes (2007) 47 with L. Nottage, Comparative Law, Asian Law, and Japanese Law, Journal of Japanese Law 2003, 8, 41 also at https://ssrn.com/abstract=837964.

[8]  M. Crouch, ‘Asian Law in Australian Universities: Research centres as critical institutional commitments’, Asian Studies (Blog Post, 21 April 2020) https://asaa.asn.au/asian-law-in-australian-universities-research-centres-as-critical-institutional-commitments/.