Watson Events

Why the History of Japanese Law Has Not Been Written

"Why the History of Japanese Law Has Not Been Written"

Yasunori Kasai
Professor of Law and Classics, Otsuma University, and Institute of Advanced Studies, Niigata University

Emi Matsumoto
Professor of Legal History and Comparative Law, School of Law, Niigata University 

The Brown Legal Studies Seminar (BLSS) is an interdisciplinary colloquium series, featuring cutting-edge research on law and legal institutions, from a wide range of vantage points across the social sciences and humanities. Sessions are open to the entire Brown community, but we particularly welcome faculty and graduate students, from all fields. BLSS is sponsored by the Office of the Provost and the Watson Institute for International Studies. Advance reading may be expected (see www.watsoninstitute.org/blss).

Location: The Brown Faculty Club, 1 Magee Street. RSVP to Ellen_White@brown.edu. 


Abstract:
The title of this paper is adapted from that of Professor Sir John Baker’s inaugural lecture delivered in 1998 (Why the History of English Law has not been finished). Sir John draws our attention to the interrelationship between sources and methodologies in making legal history. What kind of sources is relevant to legal history is determined by the methodology employed and the methodology is again shaped by the sources. 

Although the Japanese law has a long history since Ritsu-Ryo system was adapted from China in 7th and 8th Century, Legal History as an academic discipline was established in Japan under the exclusive influence of German scholarship soon after the codifications of modern Japanese laws around 1900. The methodology of the history of Japanese law has been again developed under the close connection with German (legal) history. This parallelism, having taken various kinds of form, from 19th Century retrospective dogmatism, Marxism, to constitutional and conceptual history (Verfassungs-und Begriffsgeshichte), and also to some extent expanded to other countries (e.g., Britain, France and China ) than Germany, is always dominant in the history of the scholarship of Legal History in Japan (please visit the home page of Japan Legal History Association, http://wwwsoc.nii.ac.jp/jalha) and most apparent in the works of Japanese medieval (legal) historians. 

Then, what is the substance of the history of Japanese law? In English terms, what is Common Law in Japan? Is the Japanese legal history all but parallels with others? In more sophisticated terms, is it a kind of comparative legal history?
In this paper, the speakers suggest two points. The first is about methodology. What does the parallelism miss out from the history of Japanese law? In this respect the legal history of corporation will be discussed. The second is about sources. The hitherto inaccessible documents (Database of Civil Judgements files, http://www.nichibun.ac.jp/graphicversion/dbase/minji_e.html) is now open for the research in the law and legal practice in the early period of modernisation in Japan. 

It is hoped that this paper will provide Japanese law specialists and non specialists alike with a new perspective for Japanese legal history and legal histories of other jurisdictions alike.