Community and the Law
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Community and the Law

A Critical Reassessment of American Liberalism and Japanese Modernity

Takao Tanase

Edited by Luke Nottage and Leon Wolff

This important book translates seven landmark essays by one of Japan’s most respected and influential legal thinkers. While Takao Tanase concedes that law might not matter as much in Japan as it does in the United States, in a provocative challenge to socio-legal researchers and comparative lawyers, he asks: why should it? The issue, he contends, is not whether law matters to society; it is how society matters to law.
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Chapter 6: Communitarianism and Constitutional Interpretation

Takao Tanase


1. 1.1 THE COMMUNITARIAN PERSPECTIVE Individuals’ Sociality and Social Individualism Communitarianism observes that human beings are inherently social. As a legal theory, it holds that the community matters in the spirit and interpretation of law. From a sociological perspective, people are born, raised and socialised in social groups – whether families, communities or even entire countries – each with their own specific set of values and sensitivities. People value the connections they have with others in these groups. Yet it is not easy to factor this communitarian orientation into the interpretation of law. This is because individual liberty is assumed to be the fundamental norm of law. Under the liberal conception of legal order, society is made up of free individuals who, through the exercise of independent will, form voluntary relationships with others. Law provides a framework for preserving individual liberty and ensuring autonomy to enter into relationships. The impetus of law is, as far as possible, to reduce society to an association of individuals (compare Inoue, 2001). Of course, it is important not to over-emphasise the tension between sociality and individuality or between sociological perspective and legal thought. Sociology also verifies that people like to be free and resist unnecessary restraints on liberty. Likewise, the law imposes many obligations upon individual behaviour which people freely and voluntarily assume, even if these obligations go beyond the minimum necessary restrictions on individual liberty. (Family law is a classic example of this.) All this is perfectly understandable: it is hard to conceive of society...

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