Table of Contents

Legal Innovations in Asia

Legal Innovations in Asia

Judicial Lawmaking and the Influence of Comparative Law

Studies in Comparative Law and Legal Culture series

Edited by John O. Haley and Toshiko Takenaka

Legal Innovations in Asia explores how law in Asia has developed over time as a result of judicial interpretation and innovations drawn from the legal systems of foreign countries. Expert scholars from around the world offer a history of law in the region while also providing a wider context for present-day Asian law. The contributors share insightful perspectives on comparative law, the role of courts, legal transplants, intellectual property, Islamic law and other issues as they relate to the practice and study of law in Japan, China, Taiwan, Korea and Southeast Asia.

Chapter 3.1: Judicial lawmaking and the creation of legal norms in Japan: A dialogue

John O. Haley and Daniel H. Foote

Subjects: law - academic, asian law, comparative law


According to a widely accepted stereotype, Japan’s judiciary plays a very limited role within the legal system. By this view: Japan is a civil law system, modeled during the Meiji era on the two primary legal systems of continental Europe – France and Germany. In keeping with the dominant perceptions, at least in the United States, of the ethos of civil law systems generally, Japanese judges merely interpret presumably all-inclusive codes; they do not create law through precedent in the manner of common law judges. The courts’ role is further circumscribed by the vaunted non-litigiousness of the Japanese people. Even when cases reach the courts, according to this stereotyped view, the Japanese judiciary is a paragon of judicial restraint. Judges hardly ever question the constitutionality of statutes and are loath to second-guess bureaucrats or the Diet. Furthermore, to the extent the courts play a role, they are conservative in nature and tend to support the establishment. Finally, on those rare occasions when the judiciary steps in, the Diet and the bureaucracy are quick to reestablish their dominance, through new legislation taking matters out of the courts’ hands. We take a different view. As we discuss below, for over a century Japan’s judges have played a central role in the formation and development of law. To be sure, in the great majority of cases, Japanese judges straightforwardly apply standards embodied in statutes enacted by the legislature.

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