Weak Legal Consciousness as Invented Tradition
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In this paper I challenge the conventional wisdom that weak legal consciousness is a historical attribute of the Japanese people. Very few people anywhere enjoy conflict, and when a dispute becomes unavoidable, most people prefer to resolve it as amicably and quickly as possible. The Japanese are no exception, but to the extent that contemporary Japanese are unusual in their preference for informal dispute resolution, it is not because they lack a history of conflict or litigation. Like other societies, Japan has a rich history of formal law and litigation. What is often lacking in the Western language literature on Japanese law, however, is a knowledge of this history and a recognition of the choices of “tradition” open to contemporary Japanese culture. The paper is divided into specific and general parts. In the former I describe a dispute in Hozu village that first arose in the Tokugawa period (1802), recurred twice in the Meiji period (1871 and 1888), and was resolved in the middle Shōwa period (1962). I pay particular attention in this narrative to the procedures chosen by the parties and find that they were more likely to choose litigation or its equivalent in the earlier instances of the dispute than they were in the later. In the general part, I contrast these choices to the view that Japanese naturally prefer informal, consensual means of dispute resolution to the formality and contentiousness of litigation to a greater degree than people in other industrialized societies. Not an ineluctable legacy of the distant past, the contemporary strength of this “tradition,” I contend, is the product of a series of conscious political choices by elites beginning in the early twentieth century. Official action to suppress litigation has been standard practice throughout most of Japanese history, but as the Hozu dispute and general court statistics illustrate, it was not until after World War II that government efforts achieved a dramatic and seemingly permanent decrease in litigation rates. Although accompanied by the rhetoric of a traditional preference for consensus and harmony, present litigation rates are at least as attributable to official efforts to discourage litigation as to the preferences of individual Japanese. The history of the Hozu dispute is illustrative, if not in itself probative, of the continuing tendency of Japanese to look to formal processes to resolve their disputes and of the relatively recent success of the government in discouraging this tendency and strengthening what Kawashima Takeyoshi called Japan’s “weak legal consciousness.” The Hozu conflict originated in a complex struggle between wealthy farmers and their small farmer tenants. The aspect that interests us concerns the proper utilization of the village commons and the degree of access enjoyed by village Burakumin, who had become allied with the landlords. The conflict thus implicated both social status and land ownership, perhaps the two most important legal issues in Tokugawa Japan, and was representative of the status litigation that occurred throughout the period. Although conflicts over status and land were not the most numerous disputes in Edo Japan—by far the largest number of lawsuits concerned the repayment of debts—they were treated with the greatest concern by the authorities. Control of land mean wealth and power, and a stable social hierarchy was the goal of Edo law and political ideology. The Burakumin occupied the lowest rung of the hierarchy, but disputes over their status vis-á-vis small farmers were no more distinctive than disputes brought by small farmers over the status privileges of wealthy farmers or complaints by villagers over a headman’s abuse of the privileges of his office. In this important sense the Hozu litigation was typical of how Japanese citizens and authorities dealt with the issues of most fundamental importance in them.
Source Publication
Mirror of Modernity: Invented Traditions of Modern Japan
Source Editors/Authors
Stephen Vlastos
Publication Date
1998
Recommended Citation
Upham, Frank K., "Weak Legal Consciousness as Invented Tradition" (1998). Faculty Chapters. 1451.
https://gretchen.law.nyu.edu/fac-chapt/1451
