Empirical Studies in Culture, Society and Policy Making
Edited by Dimitri Vanoverbeke, Jeroen Maesschalck, David Nelken and Stephan Parmentier
Chapter 4: Law, culture and society in modernizing Japan
In comparison with other developed (Western) countries, Japan has continued to show a relatively lower civil litigation rate, which has been a controversial issue in Japanese law and society's academia. In a very famous book published in 1967, Takeyoshi Kawashima (1967) argued that there existed a gap between the (modern) Japanese legal or judicial system and the consciousness of ordinary people. This fact was prima facie hard to refute. The controversial point that the readers found in the book (and some other books and articles in a similar vein) was whether the legal culture that symbolically appears in people's consciousness (such as the dislike of detailed contracts) was really the most determining factor (as an independent variable) of the low litigation rate (as a dependent variable). John Haley and some other scholars (especially American but also some Japanese) proposed an antithesis that emphasizes institutional, rather than cultural, factors such as the scarcity of legal professions, the high cost of lawsuits and the high predictability of judicial decisions. Although the 'either-or' contraposition of culture and institutions as a cause for the low litigation rate is not necessarily the precise understanding of Kawashima's argument, this framework has been controlling the debate in academia. Scholars have wondered if there is a deterministic, essentialist and unchanging aversive tendency toward law among Japanese people ('cultural thesis') or if this tendency is no more than an artificially and politically induced, changeable and superficial one ('institutional thesis').
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