Law’s Political Foundations

Law’s Political Foundations

Rivers, Rifles, Rice, and Religion

Elgar Studies in Legal Theory

John O. Haley

Law’s Political Foundations explains the development of the two basic systems of public and private law and their historical transformations. Examining the historical development of law in China, Japan, Western Europe, and Hispanic America, Haley argues that law is a product, rather than a constitutive element, of political systems.

Chapter 4: Rice and rifles: foundations of private law and private ordering in Japan

John O. Haley

Subjects: law - academic, comparative law, legal theory


China illustrates how the earliest centralized bureaucratic regimes developed and thereby established public law orders. In order to achieve their goal of centralized regulatory governance, the rulers had to acquire sufficient resources and be able to allocate them to the administrative structures and personnel necessary to maintain their bureaucratic regimes. The pivotal factors for China, like Egypt, were control over major rivers and the wealth and human resources of their basins along with extended periods of relative peace and security. We now begin to explore the political foundations of private law orders. Our initial focus is early and medieval Japan. Few if any societies of comparable population and territorial size replicate the Japanese experience. For nearly two millennia from at least the third century CE to 1945 CE, the four main islands of the Japanese archipelago did not experience any transformative intrusion from external sources either by migration or by conquest. Japan thus represents a rare if not unique example of political and legal development based exclusively on internal influences and self-selected borrowings from abroad. For our purposes, the Japanese experience also illustrates the correlation between the institutional constraints within political systems and both customary and institutionalized mechanisms of private ordering. To summarize the main conclusions at the outset: Japan’s political environment was shaped decisively first by lack of any sizable rivers or broad, contiguous river plains as in China over which centralizing rulers could directly control the principal sources and producers of wealth.

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