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 7: Japanese Modernity Revisited: A Critique of the Theory and Practice of Kawashima’s Sociology of Law

Takao Tanase

Extract

7. Japanese modernity revisited: a critique of the theory and practice of Kawashima’s sociology of law 1. THE MODERNISATION THESIS Japan’s adoption of a modern Western law during the Meiji Period (1868–1912) is the key to understanding Japanese law today. In every society, law embodies an essentially different logic from that which constitutes society. Tension exists in the interface between law and society: on the one hand, law can be a powerful tool in the enlightenment of society; on the other, society can shield itself against the infiltration of law’s competing logic. In Japan, however, this tension is particularly stark precisely because Japan ‘received’ law that was modern and Western. The Meiji expression wakon yosai (‘Japanese spirit and Western learning’) nicely captures the tension. Thus, although Japan needed the ‘Western learning’ of law because it was indispensable to industrialising the economy and creating the modern state, it could never displace the competing ‘Japanese spirit’ that underpinned Japanese social relationships. This tension subsists on a more subconscious level, too, in the way Japanese people refuse or fail to grasp the purport of Western law and interpret and, instead, apply it in a Japanese manner. However, the failure of the ‘Western’ edifice of law to reign in the ‘Japanese spirit’ was sharply attacked in the aftermath of World War II when people searched their souls for reasons why the country had been dragged into a rash war. People felt that the ‘Japanese spirit’ itself was the problem and that Japan needed...

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