Empirical Studies in Culture, Society and Policy Making
Edited by Dimitri Vanoverbeke, Jeroen Maesschalck, David Nelken and Stephan Parmentier
Chapter 12: Culture, situation and behaviour
When we discuss whether a distinctive Japanese way of disputing behaviour exists or not and, if it does, what it is like, we cannot avoid referring to Kawashima's arguments on Japanese legal consciousness. His arguments consist of two aspects: a normative and an empirical one. In his normative argument, Kawashima criticized pre-modern normative consciousness by contrasting traditional Japanese attitudes with Western modern legal consciousness. Kawashima formulated the basic elements of this modern legal consciousness and urged the Japanese people to internalize it so that the modern law as epitomized in the post-war Constitution would become the living law in Japanese society (Kawashima 1959). In his empirical argument, Kawashima argued that the legal consciousness of the Japanese people was the decisive cause of the small number of lawyers and the low litigation rate in Japan. As this empirical argument was introduced in an English article based on his presentation at the Law in Japan Conference held at Harvard Law School, it became well known as the Kawashima thesis of Japanese legal consciousness (Kawashima 1963). There are different ways to understand how Kawashima's normative argument can be related with his empirical argument.
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