A. Introduction
Among the three worlds of Japanese legal studies (gJapanese lawh, gJapanisches Rechth, and gnihon-hoh) identified by Luke Nottage[1], gnihon-hoh stands out as having a distinct character: it is multi-layered. I will start out in Part B by explaining what I mean by this. This perspective is important in assessing whether gJapanese lawh and gJapanisches Rechth have had limited impact on gnihon-hoh. Today, we all know better than to compare Japanese businesspeople / business practices with U.S. lawyers/law when we compare attitudes toward contracts in the two countries[2]. Taylor and Nottage are both well aware of this [3]. But they seem to make a similar mistake by comparing wrong gworldsh. After assessing the interaction of the gworldsh of Japanese legal studies (maybe too) optimistically in Part C, I will then cast a critical light on the autism that plagues gnihon-hoh in Part D. Nonetheless, I will try to end in an upbeat mood.
Before I proceed, I must mention my background. I live in the world of gnihon-hoh, and gminpo [Civil Code]h in particular. I have had several encounters with the world of gJapanese lawh, but mostly that produced in the United States. I also regretfully confess that the world of gJapanischesRechth has been truly foreign to me. Thus, I must almost totally exclude reference to gJapanisches Rechth in the following comments.
B.The Anatomy of gnihon-hoh
1. Primary and Secondary gnihon-hoh
Taylor and Nottage mention the world of gnihon-hoh, they are referring to the body of academic literature on law in Japan written in the Japanese language. This is gacademich in the sense that it may have no immediate practical consequences. However, there is another layer of gnihon-hoh, which is the law as it is practiced in Japan. I use the term gpracticeh broadly. It encompasses the activities of actors such as legislatures, the legal profession, bureaucracy, and even private citizens in so far as they have practical legal consequences on peoplefs lives. It includes both the formal and informal enforcement of law. This layer of gnihon-hoh is the gprimary nihon-hoh. The academic gnihon-hoh is gsecondary nihon-hoh. (gPrimaryh and gsecondaryh as used in, e.g., gcases are primary materialh, and glaw reviews are secondary material.h)
2. Secondary gNihon-hoh with an Internal Standpoint
The ultimate objective of gsecondary nihon-hoh as a collective is to influence the actors in the world of gprimary nihon-hoh. However, individual works may not necessarily be intended to affect the actors. For example, the extensive comparative law articles written by virtually every Japanese legal academic are rarely intended to be used by practitioners. (If they are, they have problems with their presentation.) They are mostly intended to serve as building blocks and to give insights for further studies, which in turn will affect the actors[4]. In this sense, it is useful to distinguish two sub-layers of gsecondary nihon-hoh.
A typical example of the first sub-layer is the bulk of kaishakuron papers. They are characterized by their immediate concern of influencing gprimary nihon-hoh. In other words, they have ginternal standpointsh[5]. These are addressed directly towards the legislators, judges, attorneys, prosecutors and other legal professionals. This can be attested by the fact that academics do not hold a monopoly in this field of writing. Contributors to this sub-layer include many practitioners (judges, attorneys, prosecutors, corporate legal department (homubu) staff members, etc.). This sub-layer may be named gapplied legal studiesh, or gjitsuyo hogakuh[6], but in this paper, I will simply refer to it as gsecondary-internal nihon-hoh.
Many residents of the gworld of Japanese lawh will consider this literature boring. To some degree, I share that sentiment. However, subjective tastes aside, there are many jobs out there that are boring but indispensable. Somebody must do this. If lawyers donft, who will?
3. Secondary gNihon-hoh with an External Standpoint
In contrast to applied legal studies (gsecondary-internal nihon-hoh), the second sub-layer can be named gbasic legal studiesh. Although the final goal of basic legal studies is also to affect various actors of gprimary nihon-hoh, these studies do so only indirectly. Rather, this sub-layer intends to exert direct influence on gapplied legal studiesh, which in turn will influence gprimary nihon-hoh. A typical example, but not the only one, is the so-called kisohogaku. It consists of traditional interdisciplinary subjects such as legal philosophy, legal history, legal sociology/law and society, comparative law, and the new gLaw-andh areas such as Law and Economics, Law and Negotiation, Law and Feminism, etc. Another example of basic legal studies is the descriptive analysis of case law, which tries to identify the state of specific areas of law (e.g., Ichiryushafs gSogo Hanrei Kenkyu [Comprehensive Case Studies]h series)[7]. These studies are all philosophical or empirical in approach. The boundary between the basic and the applied may be blurred at times (just in the way the American gRestatementsh of various areas of US law are not always mere restatements), but their immediate concern is to understand, interpret, and explain the function of law. In that sense, they have an gexternal standpointh. For them, law is a subject of observation. Hence I will refer to this sub-layer as gsecondary-external nihon-hoh.
C. Interaction
1. hJapanese Lawh as Secondary-External
we compare the multiple worlds of gnihon-hoh classified above with the world of gJapanese lawh posited by Taylor and Nottage, it is apparent that gJapanese lawh in most cases have no intention to influence gprimary nihon-hoh. It is secondary in nature and external in standpoint. Given this characteristic, it is understandable that gJapanese lawh delivers very little gkaishakuronh[8], which is essentially internal in its standpoint[9].
Of course, gJapanese lawh may have its own practical agenda: i.e., to influence, for example, gprimary U.S. lawh or to provide practical legal advice to Americans interacting with Japan. Titles such as gDoing Business in Japanh[10] and gLaw and Investment in Japanh[11] tailor also to this market, which flourished in the 1980s. Also, many gJapanese lawh writings, although driven by their general interest in Japan[12], are written in a fashion to affect the gprimary U.S. lawh. However, their practical message portion is not directed to the world of gnihon-hoh[13]. Thus, gJapanese lawh intersects with gsecondary nihon-hoh only to the extent that they share the external standpoint. And even then, they do not completely overlap because they have different purposes.
2. Little Impact?
If so, the question of what impact gJapanese lawh has had on gnihon-hoh should be asked primarily with regard to gsecondary-external nihon-hoh. The contention by Taylor and Nottage thatgJapanese lawh has had little impact on gnihon-hoh does not distinguish the multiple worlds of gnihon-hoh. When the right question is asked, a whole new picture emerges[14].
First of all, works of gJapanese lawh, especially those that are translated into Japanese, have been extensively quoted in gsecondary-external nihon-hoh. Mark Westfs work on sokaiya [corporate racketeers][15] takes up substantial time in Kyushu Universityfs corporation law lectures. Haley and Ramseyerfs work on litigation rates are standard references, profiled for instance in a popular textbook on the Japanese judicial system[16]. As a result, they presumably have influence over gsecondary-internal nihon-hoh, and may eventually have impact on gprimary nihon-ho", too.
One might say that these are exceptions and that most gJapanese lawh literature is ignored. Maybe so. But then, secondly, how many gsecondary-external nihon-hohhave significant impact on gsecondary-internal nihon-hoh or gprimary nihon-hoh? I am not proud about this, but my gsecondary nihon-hoh writings have had little impact on any other sub-world of gnihon-hoh[17]. I would also say that very few Japanese scholars have had or will have a direct impact on gprimary nihon-hoh in their lives. With regard to the limited impact gsecondary nihon-hoh actually has had on gprimary nihon-hoh in particular, Makoto Ibusuki attributes this to the tendency among many Japanese scholars to write about the gidealh with little regard to actual practice[18]. However, writing about the gidealh may have been true in the 19th century and up until 1960s, when an important role of legal scholars was to guide the courts. In those days, arguably, Japan adhered closely to the civil law tradition of gprofessorial lawh[19]. However, since then, the courts and the bar have grown strong and their expertise has expanded. Accordingly, the role of professors has diminished. Even their presence in various government councils (shingikai) is largely symbolic, and they are no longer power players in the field of policy-making or law-making[20]. (I hereby sadly report the death of professorial law tradition in Japan!) Today, no scholar in good conscience can write about law disregarding its practice. (However, I admit that Ibusukifs point may hold true to the field of criminal law, in which he specializes as a criminal procedure professor.) Thus, I speculate that the reason that we have little influence is not in our attitude, but in the strength and resources that legal practitioners have already gained. In other words, the world of gprimary nihon-hoh is becoming increasingly independent. The relative qualitative dilution of Japanese scholars may be an additional reason.
If this is so, the impact that gJapanese lawh has had on gnihon-hoh is quite remarkable. Also consider the quantity of gJapanese lawh in comparison to that of gsecondary nihon-hoh. gJapanese lawh has a much higher batting average[21]. So my point here is: patience, please!
D.The Autistic gnihon-hoh
1. Globalization and the gWorldsh
So far, I have proceeded on a very conservative assumption that gprimary nihon-hoh is the main concern and problem for Japan. To put my assumption in general terms, primary laws are matters of each jurisdiction, and each sovereign nation state. Yet this view is increasingly obsolete in the age of globalization. The problem of ggaikokuho jimu bengoshi (foreign law solicitors)h has attracted a lot of attention from non-Japanese, for example, and many gJapanese lawh articles were written to influence gprimary nihon-hoh on this issue. There, the standpoint of gJapanese lawh no longer remained external.
Moreover,there is a growing body of gprimary global/transnational lawh. In that world, we all share ginternal standpointsh, and legal studies (secondary law) of various countries start to converge[22]. At a regional level, this is most vividly seen in Europe today.
2. Autistic gnihon-hoh
The question I pose at this point is whether gnihon-hoh is ready for this. I must answer in the negative. But I believe early diagnosis will lead to cure. I will give one symbolic example, although I should mention that my expertise limits my analysis to the area of private law.
In November 1998, two major symposia were held consecutively in Tokyo and Kyoto commemorating the 100th anniversary of the Japanese Civil Code (Minpoten). These centennial symposia were entitled gLegislation and Private Law in the 21st Century: Private Law in the Age of Internationalizationh. Four panelists were invited from France, Germany, the United States (Richard Hyland), and the Netherlands (or rather E.U.: Ewoud Hondius). Incidentally, there were no Japanese. Further, both in Tokyo and Kyoto, time ran out with questions directed almost exclusively to the French and German panelists, who come from countries that had tremendous historical influence on all sub-worlds of gnihon-hoh. (Some were really gboringh microscopic black-letter-law questions, such as gtell me about the concept of property damagesh.) Admittedly, this was at an occasion of the 100th anniversary of the Civil Code, and black-letter-law questions may have been welcomed, but my impression is that gsecondary nihon-hoh (or secondary minpo) is taking the Code approach too seriously[23]. The panelists from E.U. and the United States, who were there to offer to look to the future,[24] were virtually ignored.
In addition to this backward looking mentality, the frustration I felt with the symposium was its autistic nature. It strikes me as odd that in a symposium dealing with the gPrivate Law in the Age of Internationalizationh, the topic of international unification or harmonization of law, or topics dealing with lex mercatoria, were not included. The most important instrument in this context is, of course, the UN Convention on Contracts for the International Sales of Goods (Vienna Sales Convention or CISG). It took effect in January 1988, and as of March 2001, nearly 60 countries are parties to it. CISG is starting to serve not only as a positive law applicable to international sales contracts, but also as a common framework of dialogue for lawyers who come from different legal traditions. The UNIDROIT Principles of International Commercial Contracts (1994) are also serving similar functions. They are a set of legal principles to be used in international commercial contracts in arbitration and possibly in courts. On the legal education front, the Willem C. Vis International Commercial Arbitration Moot, which takes place in Vienna every spring, has become an important vehicle in educating future lawyers in this field.[25] We are therefore witnessing an emergence of a supranational legal community. But when we look at Japan, we find that it is one of the only two major trading nations that have not even ratified CISG (the other being the U.K.). So "primary nihon-ho" is not at all ready to take on the challenges of globalization.
Neither is "secondary nihon-hoh ready. It is still obsessed with what we can hlearnh from other countries. Little is done to jointly build primary global law[26]. This is all the more shocking when we consider that Japan, with its scarce resources, cannot survive without international trade. The closing talk at the symposium given by an eminent Japanese civil law scholar, who is now a Supreme Court Justice, did mention CISG but in a very shocking way. He referred to CISG as an example of gDevelopment of European Contract Lawh. Then he maintained that as such, it should be given more attention as a subject of comparative law, together with Lando Commissionfs gEuropean Principles of Contract Lawh and the UNIDROIT Principles. However, CISG, as well as the UNIDROIT Principles are not gEuropeanh developments; they are attempts in harmonization of (primary) international contract law. It is not gtheirh problem; it is gourh problem. Hopefully, things have improved in the two or three years since the incident, but the perception within gsecondary nihon-hoh may remain seriously distorted.
3. Demystification and Globalization
I conclude with a brief note about the impact gJapanese lawh may have on the self-image of gnihon-hoh in the age of globalization. The greatest contribution of the recent gJapanese lawh literature is the message of gdemystificationh (as in the works by John Haley, Frank Upham, Mark Ramseyer and the younger generation)[27]. If Japan is no longer a mysterious society, gnihon-hoh can no longer be excused from the responsibility to contribute towards building primary global law. I have a dream that one day the worlds of gnihon-hoh will converge not only with gJapanese lawh or gJapanisches Rechth, but also with the world of the global legal community.