・カトリック大学教授)

Overview & Synopsis

The question of whether Japanese citizens are, in fact, more reluctant to litigate than those in other nations echoes a longstanding concern in comparative jurisprudence: is Japanese law fundamentally distinct from other legal systems, or is it essentially similar? The resolution of this inquiry is closely tied to the underlying concept of law one adopts. If law is understood merely as a system of rules—as in the case of Japan’s adoption of Western legal codes—then Japanese legal behavior may be seen as an issue of the legal transplants. Conversely, if law is regarded as a social practice embedded in cultural traditions, then Japan’s emphasis on harmony and group consensus becomes central. Legal theory, therefore, provides a meta-framework through which this debate can be conceptualized, and the conclusions drawn are necessarily shaped by the theoretical lens applied. In this context, it is instructive to revisit very quickly the well-established theoretical exchange between Hans Kelsen and Eugen Ehrlich. Although Kelsen was younger, he had the benefit of attending Max Weber’s lectures in Heidelberg and developed a rigorous critique not of Weber but of Ehrlich’s sociological approach to law. Kelsen argued that legal analysis must precede sociological inquiry, asserting that the first step in any sociological study of law is to define its core concepts—such as “legal consciousness”—in legal terms. This Kelsenian perspective might particularly relevant to the interpretation of Japanese legal behavior. Upon reading Haley’s critique of Kawashima, it becomes clear that Haley attempts to clarify the notion of legal consciousness through statistical numbers and carefully avoids terms such as “legal ethos.” Although my own engagement with Japanese law remains preliminary, I dare to claim that there must be a Japanese normative term for the consciousness that might be better than a German translation of a vague notion of “ethos”. I think it is noteworthy that one of the most significant extrajudicial influences on Japanese legal consciousness—namely religion—is itself shaped by legal definition that emerged in the late 19th century, during the period of treaty negotiations with the United States. Moreover, Kelsen’s insistence on distinguishing between what law is and what law ought to be remains pertinent to this discussion. While many scholars regard the debate between Kawashima and Haley as having been resolved in favor of the latter and the American-Japanese school of thought, it is important to recognize that Kawashima did not articulate normative judgments regarding Japanese legal consciousness. Rather, his project was descriptive in nature. Drawing on sociological and historical analysis, he sought to explain why Japanese citizens demonstrate a marked reluctance to engage in litigation administered by the state. Among the reasons identified were the high costs of litigation, the hierarchical nature of Japanese society—which clashes with the egalitarian premises of judicial proceedings—and the primacy of social harmony within close-knit groups, which discourages appeals to universalistic legal norms. Nonetheless, Kawashima did advocate for the modernization of Japanese law, contending that the prevailing legal ethos failed to foster a robust sense of individual rights. The normative dimension of his scholarship emphasized the importance of cultivating a legal culture in which personal rights are both recognized and respected. In contrast to Jhering, Kawashima argued that the assertion of rights must be tempered by a respect for the rights of others, and that the instrumental use of law—where it is deployed solely for individual gain—was not well understood in Japanese society. Ultimately, Kawashima’s contribution to legal thought cannot be fully appreciated without situating it within a broader European intellectual tradition. His work does not emerge in isolation from Japanese cultural contexts, but rather reflects an engagement with transnational jurisprudential discourse. By incorporating the insights of Jhering, Ehrlich, and the Scandinavian realists, Kawashima helped to develop a conceptual framework for understanding law in Japan that is at once culturally specific and globally informed. The 1978 debate with Haley did not conclude the discourse but marked a significant turning point. It reoriented scholarly attention toward legal sociology, comparative legal analysis, and the role of cultural and institutional factors in shaping legal behavior. Today, Kawashima’s work continues to influence scholars committed to understanding law as a dynamic and evolving social institution.