Introduction
The Japanese Association of Sociology of Law (JASL) was established in 1947, only two years after the end of World War II. This indicates that there was widespread interest in the sociology of law even before and during World War II. In fact, JASL is the oldest national association in the field of law and social sciences among the existing national associations in the world.
Why was there so much interest in the sociology of law in Japan? The answer partly lay in the fact that Japanese laws, which had been imported from Europe at the end of the nineteenth century, were not consistent with social practice in pre-war Japanese society. The Meiji government tried to import Western laws as quickly as possible, although the government did not embrace the individualism and universalistic values inherent in Western laws.Footnote 1 The main reason for the speedy importation of Western laws was that the government was concerned with the preservation of national independence against Western colonisation and wanted to abolish as soon as possible the unequal treaties with Western countries, which included an extra-territoriality clause for foreign nationals. Therefore, the government invited lawyers from Europe to legislate Western style codes and established the imperial constitutional system.Footnote 2
This particular way of importing Western laws had significant and lasting impacts on Japanese legal scholarship, which developed characteristic concerns: first, an interest in comparing law and practice between Japan and the West, in which the West was often idealised;Footnote 3 second, a focus on comparing laws and social realities in Japan, as laws were mostly imported from the West and thus ‘foreign’ to people's lives. These concerns were also shared by Takeyoshi Kawashima, who presented influential and sometimes controversial hypotheses of Japanese legal behaviour.
This paper, while looking back at the development of the sociology of law in Japan from its emergence to the latest period, pays attention mainly to Kawashima's works, putting them in a larger historical context. Its purpose is to show how his works affected subsequent research and how they were also critically assessed by the studies of later generations. The paper divides the relevant history into three stages: (1) the emergence of the sociology of law up to the end of World War II, which will place Kawashima's arguments in a broader context; (2) the establishment of the sociology of law as social science from the post-war period to the 1970s, when Kawashima made his well-known arguments about Japanese legal consciousness; and (3) the proliferation of empirical studies in the sociology of law since the 1980s, the period when Kawashima's theoretical and empirical arguments were assessed more critically. In the first stage, the sociology of law was born as a close sibling of the free law theoryFootnote 4 and sociological jurisprudence, as law professors were concerned with gaps between statutes, on the one hand, and traditional practice and social changes triggered by industrialisation, on the other.Footnote 5 However, in the process of its post-war development, the sociology of law was clearly differentiated from jurisprudence and legal theories, and sociological studies of law were increasingly conducted by empirical social scientists, rather than law professors,Footnote 6 though most of the empirical scholars had legal backgrounds. Kawashima, while teaching the law of property, began to teach the sociology of law, and, as we will see later, played a central role in introducing social sciences to empirical research on law. Most empirical studies tried to find and explain actual practice, as distinguished from legal provisions. But, at the same time, they were explicitly or tacitly comparative. Kawashima's arguments about Japanese legal consciousness clearly show these characteristics, pointing out pre-modern social practice in contrast with Western modern legal consciousness. Throughout its long history, the sociology of law has been considered to be an empirical science designed to provide information about how the law and legal institutions actually function.
I The birth of the sociology of law in JapanFootnote 7
The idea of the sociology of law was first introduced into Japan around 1920. Already in the 1910s it seemed that some legal scholars noticed the publication of Eugen Ehrlich's Grundlegung der Soziologie des Rechts, published in Reference Ehrlich1913, and the high reputation of his work in the US. Kenzo Takayanagi, a scholar in Anglo-American law, visited Ehrlich in Switzerland in 1919 and asked him to contribute to the law review issued by the Faculty of Law at the Imperial University of Tokyo. His article, ‘Gesetz und lebendes Recht’ and its Japanese translation were published in the law review Hogaku Kyokai Zassi in 1920 (Ehrlich, Reference Ehrlich and Hatoyama1920). In this paper, Ehrlich contrasted statutory provisions and living law, saying that Japan could legislate the civil code most similar to the first draft of the German civil code in the 1910s, as German provisions adopted from Roman laws were already general and abstract enough for another country to import them, while living law as rules of conduct differed from one country to another. Ehrlich argued that legal scholars had to find living law in a society, so that jurists could fill concrete meanings in abstract provisions. He emphasised that the knowledge of living law in a society was necessary to adjudicate, educate and legislate properly, and proposed setting up a research institute, just like a national census bureau, to collect data on the living law.
Another paper by Ehrlich, ‘Die Soziologie des Rechts’, appeared in Hogaku Kyokai Zasshi in 1922, together with a Japanese translation and introduction in which Takayanagi explained the contemporary trends of legal thought in the German academic world (Ehrlich, Reference Ehrlich and Takayanagi1922a).Footnote 8 In this paper, Ehrlich articulated the idea of living law as social order, and argued that social scientists of law should observe the totality of law in relation to a society, and integrate written laws into social relations.
The idea of sociological jurisprudence, advocated by Roscoe Pound, was also introduced during this period. Law professors specialised in civil law and in criminal law wrote articles on Pound's sociological jurisprudence (Ono, Reference Ono1924; Wagatsuma, Reference Wagatsuma1926a),Footnote 9 which shows that academic interests in empirical studies were not confined within a small circle.
Ehrlich's idea of living law seemed to be accepted among civil law professors, partly because the free law movement had already been introduced by law professors by that time (Mito, Reference Mito1912; Nakada, Reference Nakada1913).Footnote 10 The strong interests in free law theories among Japanese legal scholars resulted from the fact that social practice among the Japanese people often differed from what the Civil Code provided. A typical example was marriage. Marriage in Japanese agrarian communities was social marriage, which did not require any legal or religious procedure, while the Civil Code required a marrying couple to submit a legal document (Nakagawa, Reference Nakagawa1926). Many men and women failed to follow the procedure and women could not get legal protection when their de facto marriages failed. The court later developed a theory of illegal breach of marriage engagement to protect abandoned wives.Footnote 11 In this way, lawyers were concerned with learning social practice and interpreting a written law to fit the reality.
At the same time, industrial urbanisation gradually began to occur around the turn of the century. As a result, the Factory Act was legislated to protect factory workers in 1911 and it came into effect in 1916. As disputes between tenants and landlords increased in urban centres, new statutes were enacted to regulate rent contracts and conciliate rent disputes in early 1920s. Disputes between tenant farmers and landlords also increased during the same period.Footnote 12 All these social upheavals indicated that the Civil Code could not regulate new social relationships properly. In other words, Japan began to experience social changes similar to those that prompted the birth of the free law movement in Germany and sociological jurisprudence in the US.Footnote 13
Although the free law theory came to Japan from Germany and France, academic impetus for research on living law mainly came from the US, as well as from Ehrlich himself. Izutaro Suehiro, a civil law professor who later became the early founder of the sociology of law in Japan, wanted to study in Germany in 1914, but could not go there, because World War I started that same year. Instead, Suehiro went to the US to study at the University of Chicago Law School, as his colleague, Kenzo Takayanagi, was there, having come from Harvard Law School, where he studied sociological jurisprudence (Takayanagi and Takahashi, Reference Takayanagi and Takahashi1915).
At Chicago, Suehiro encountered the case method and realised that specific and concrete facts were crucial in legal interpretation, while developing deep doubt about the German way of legal interpretation.Footnote 14 After coming back to Japan, he set up a study group of court judgments to develop legal interpretation focusing on facts.Footnote 15 At the same time, he got involved in government research on the customary practices of tenant holdings, especially permanent tenants, among peasants. When a conciliation procedure was set up to cope with the increase of disputes between tenant farmers and landlords, he published a book in which he explained how the reorganisation of land use and ownership after the Meiji Restoration overlooked the customary practice of land use during the Tokugawa period, including the use of commons, and argued for the need to protect peasants in such a way as to motivate them to live from agriculture (Suehiro, Reference Suehiro1924).Footnote 16
Suehiro also began to teach labour law around 1921, soon after coming back from his study abroad.Footnote 17 He later published a book on labour law in 1926. In the introduction to a chapter on legislating a law of labour unions, he emphasised that the legislature had to have detailed knowledge of social relationships which the law would regulate, and also clear understandings of the effects of legal means, because legal means might not be able to achieve everything that the law would intend to achieve (Suehiro, Reference Suehiro1926, pp. 10−22). Here we can clearly see that Suehiro adopted sociological jurisprudence to discuss the proposed statute of labour unions.
It could be argued that these works of Suehiro can be considered to be in legal scholarship rather than the sociology of law, as his main concern was with how to use the law in a pragmatic way. However, he recognised the need for an empirical science of law independent of traditional legal scholarship (Suehiro, Reference Suehiro1951). Based on his idea of scientific research of the law, Suehiro led a group of legal scholars to conduct field research on the living law in North China for four years from 1940. According to his guidelines for the research, the purpose of the research was to describe the legal custom practised in Chinese society. But he emphasised that the research would look at effective norms, ‘living law’, and the dynamics in which new social forces clashed with the traditional social order. What Suehiro called ‘living law’ in the guidelines was not traditional customs as such, but effective social norms that people actually complied with as rules of conduct, social norms that were affected by formal legal provisions, traditional customs and all other social, political and economic forces.Footnote 18 He warned against imposing legal theories or categories upon facts, but urged researchers to observe and report facts as they existed (Suehiro, Reference Suehiro1940). Although this research was criticised for its political implications,Footnote 19 it provided valuable research experience to participating legal scholars.
As Suehiro taught the civil law, especially property law and labour law, academic interests in the sociology of law were particularly strong in these fields of law. Michitaka Kaino was one of the participants in the research in China and he published two books on land law and the right to commons. These books were widely read and they brought increasing interest in the sociology of law (Kaino, Reference Kaino1943a, Reference Kaino1943b). Takeyoshi Kawashima also carried out research in rural villages,Footnote 20 concerning tenant farming, land ownership, commons and family relationships. He conducted research in Nagano Prefecture with students (Kawashima and Watanabe, Reference Kawashima and Watanabe1944) who later came to be involved in the creation and development of the JASL (Kawashima, Reference Kawashima1978).
II The post-war foundation of the sociology of lawFootnote 21
Soon after the end of World War II, young legal scholars conducted empirical research in villages of peasants and fishermen.Footnote 22 Sociological studies of law were now clearly distinguished from ordinary legal scholarship, and no longer accepted a subordinate role to legal scholarship. At the same time, reflecting the political enthusiasm for democracy of the time, it was expected that empirical findings were not to be used to justify the undemocratic values lingering in post-war society but to overcome them and advance democracy under the new Constitution.Footnote 23 Even if standpoints differed widely among scholars from Marxist to Weberian theorists, it was this pro-democratic enthusiasm that explains why the sociology of law attracted so much academic attention, which resulted in the creation of the JASL soon after World War II.Footnote 24
But it was Kawashima who changed the whole landscape of the sociology of law in Japan at this time. He taught civil law and did research in particular on the law of ownership. Kawashima still relied on Ehrlich, not only in criticising the German-style legal scholarship prevailing in Japan (Kawashima, Reference Kawashima1951a), but also in conducting empirical research on living law.Footnote 25 However, he turned the pre-war scheme of Ehrlich upside down and emphasised the necessity for social change. When Suehiro and others tried to find living law in pre-war Japan, they tried to ‘learn’ from living law so that they could interpret and apply legal statutes in a manner to fit them to the social reality of the time.Footnote 26 Kawashima believed in the need for a new constitutional law, and worked with the drafting of a new Constitution and the new rules of family law in mind.Footnote 27 Despite facing the persistent attitudes of traditionalists, he strongly advocated changing the living law of pre-war Japan.Footnote 28 His papers on Japanese legal consciousness were written under these political and social circumstances,Footnote 29 though their theoretical implications went far beyond the contemporary circumstances.
Less than a year after the end of the war, Kawashima published an uncompleted paper in which he contrasted the traditional Japanese normative consciousness with the modern legal consciousness in the West (Kawashima, Reference Kawashima1946a).Footnote 30 He argued that Japanese people widely failed to comply with economic regulation law even during the war, because the law required, in order to function, a modern legal consciousness, which Japanese people did not have. He strongly urged Japanese people to make the modern law epitomised in the post-war Constitution ‘our living law’, in order to democratise Japan. In this and a later revised paper, Kawashima presented a model of ‘modern legal consciousness’, drawing upon the Kantian notion of morality with specific reference to the categorical imperative.Footnote 31 Concerning the Japanese pre-modern normative consciousness, Kawashima presented the social relationships between tenants and landlords in farming and housing as social conditions that bred the traditional consciousness,Footnote 32 while pointing out differences between the modern law and the Japanese consciousness in such legal areas as ownership, contract, family, public law and international law.Footnote 33 During the 1940s and 1950s, he devoted himself to critically analysing traditional social norms in relation to their social backgrounds (Kawashima, Reference Kawashima1946b, Reference Kawashima1951b, Reference Kawashima1951c, Reference Kawashima1957).
Kawashima continued to write on incongruities between the institution of law, in particular litigation, and the Japanese legal consciousness. The best-known article in English is ‘Dispute Resolution in Contemporary Japan’ (Kawashima, Reference Kawashima and von Mehren1963) and the one in Japanese is Nihonjin no Ho Ishiki [Japanese Legal Consciousness] (Kawashima, Reference Kawashima1967).Footnote 34 However, in these works, the focal point of argument clearly changed from the normative to the empirical. He compared the US and Japanese statistics of litigation cases in traffic accidents and argued that the Japanese pre-modern normative consciousness was a much more important cause of the small number of litigation cases than the cost and delay of litigation.
His empirical argument proved to be more controversial than his normative one, inviting criticism from Japanese and foreign scholars, as we will see in the next section. Although the phrase ‘legal consciousness’ was used as a direct translation of the Japanese words Ho Ishiki in the English translation of his argument on contract (Kawashima, Reference Kawashima and Stevens1974), Kawashima did not use the words ‘legal consciousness’ in his own English article. He later pointed out that the English words ‘legal consciousness’ were misleading, as he meant to include the subconscious as well as the conscious. He also noted that his idea of legal consciousness, Ho Ishiki, presupposed a theoretical framework of cultural sociology or anthropology, but included psychological elements such as emotional/affective response, desire/volition and value judgment (Kawashima, Reference Kawashima1972c, pp. 403−05).Footnote 35
However, Kawashima wrote about not only the Japanese pre-modern attitudes but also the social structure that supported such attitudes (Kawashima, Reference Kawashima1960). He seemed to believe that subsequent social changes brought by further industrial urbanisation would produce a transformation of the Japanese legal consciousness and eventually an increase in litigation.Footnote 36 He considered that there were various factors which would influence the legal control of a society and that consciousness was not the ultimate fundamental determining factor of legal phenomena. But he argued that the reason for focusing on legal consciousness was that legal consciousness not only affected law-related behaviour, but also was the factor closest to law-related behaviour among relevant factors (Kawashima, Reference Kawashima1967, pp. 10−14). Crucially, Kawashima argued that legal consciousness was the most powerful predictor of legal behaviour, but that legal consciousness had a social foundation and would change as its social foundation changed (Kawashima, Reference Kawashima1967, pp. 197−203).
Kawashima taught at Stanford University for a year in 1958−59, and after this became increasingly interested in social scientific studies in the US.Footnote 37 He not only followed the development of socio-legal studies in the US,Footnote 38 but also expanded the theoretical horizons of the sociology of law in Japan extensively. After he retired in 1970, he began to practise as a private attorney, but he continued to make efforts to open up Japanese sociology of law to foreign scholars,Footnote 39 and also other fields of social sciences.
It was his notable achievement that he edited a series of ten volumes of Ho Shakaigaku Koza [Lectures on the Sociology of Law], published from 1972 to 1973. This series was not a collection of readings, but of original articles. It covers virtually all areas of the sociology of law: Volume 1 about the formation of the sociology of law, including nineteenth-century scholars in law, sociology, anthropology, economics, political science and psychology; Volume 2 about the present situation of the sociology of law in foreign countries from the US to European and socialist countries, and in pre-war and post-war Japan; Volumes 3 and 4 about the theoretical and methodological foundations of the sociology of law, including methods of social research, social system theory and Kawashima's model of law as the focal point in the sociology of law;Footnote 40 Volumes 5 and 6 about law and dispute resolution, mainly including various theoretical approaches to adjudication and non-judicial decision-making processes; Volumes 7 and 8 about society and law, including Marxist and Weberian theories, the relation between living law and statutes in various legal fields in Japan, such as commons, land inheritance and labour, and the impacts of law and legal institutions upon society; and Volumes 9 and 10 about history, culture and law, starting from primitive and archaic societies to traditional societies and their modernisation, and finally contemporary societies in Europe, socialist countries, Asia and Africa.
A large number of scholars not only in law but also in the social sciences and humanities contributed to the series. Kawashima intended to show the sociology of law as an interdisciplinary science to students and scholars in both law and the social sciences. His intention was well served by the series that clearly expanded the horizon of the sociology of law in Japan, far beyond the study of living law.
III The rise of the sociology of law as empirical social science
While Kawashima followed the rapidly growing literature of social scientific studies of law in the US and Europe in the 1960s and 1970s, young scholars began to conduct empirical studies inspired by studies in the US and Europe. It is also during this period that various areas of law became objects of empirical studies, though fieldwork to study living law in rural villages and also in farming areas in urban suburbs continued as the tradition of the sociology of law.
Scholars who played significant roles in the post-Kawashima period were Kahei Rokumoto and Takao Tanase, who both started their academic careers under Kawashima. Rokumoto was the successor of Kawashima for the chair of the sociology of law at the University of Tokyo and, while advocating and conducting empirical studies, introduced foreign sociological theories of law, such as those of Niklas Luhmann and Philip Selznick, into Japan (Luhmann, Reference Luhmann, Murakami and Rokumoto1977; Nonet and Selznick, Reference Nonet, Selznick and Rokumoto1981). Rokumoto was also the first scholar who taught only the sociology of law, but no other subjects in law. Takao Tanase also worked heavily in the field of civil justice. He was a theorist rather than an empirical researcher, though he conducted some empirical research in the US (Tanase, Reference Tanase1983, Reference Tanase1992, Reference Tanase2003).Footnote 41 Tanase taught the sociology of law at Kyoto University but also worked on issues of the civil law (Tanase, Reference Tanase1994, Reference Tanase1999).Footnote 42 Kawashima's arguments on the Japanese legal consciousness have had an enduring impact upon subsequent empirical studies, particularly in the field of civil justice, but as empirical studies in the field of the sociology of law increased, themes and perspectives diversified.
1. The use of law and access to the legal machinery: the continuity of Kawashima's theme
Though Kawashima maintained his normative model of law, he later integrated it into a comprehensive model of law in his search for the distinctively legal.Footnote 43 He emphasised adjudication as the focal part of the distinctively legal. But empirical research on adjudication itself has scarcely been conducted since.Footnote 44 Rather, it was Kawashima's arguments on legal consciousness which foreshadowed the enduring concerns of Japanese scholars with comparing law and practice as well as contrasting Japan and the West.
Kahei Rokumoto applied Kawashima's normative scheme to the legal resolution of civil disputes, and conducted an interview survey in Tokyo in 1968.Footnote 45 He found that the social changes of Japanese society had increased demand for legal services, which was often satisfied by pseudo-lawyers, and that the use of formal legal machinery seemed determined by one's occupational position and particularistic social networks (Rokumoto, Reference Rokumoto1971).
Rokumoto also worked on the empirical aspect of Kawashima's argument. Ever since Kawashima made his argument about Japanese legal consciousness, one of the challenges has been how to measure legal consciousness (Miyazawa, Reference Miyazawa1987). How we could understand the relationship between Kawashima's normative model and empirical model also seemed to remain a question. It is difficult not only to identify what the legal consciousness is, but also to operationalise it in order to measure it empirically. Rokumoto refined the concept of legal consciousness into a narrow sense of legal consciousness, on the one hand, and legal conception, on the other. The former consists of three elements: knowledge about law, attitudes toward law and opinions about law; while legal conception is a framework to perceive law.Footnote 46 Rokumoto explained that the narrow sense of legal consciousness would be the ‘general sense of justice’ in English, more or less the equivalent of KOL (Knowledge and Opinion about Law; Podgorecki, Kaupen, van Houtte, Vinke and Kutchinsky, Reference Podgorecki, Kaupen, Van houtte, Vinke and Kutchinsky1973), while the legal conception would be the ‘idea of law’ or ‘Rechtsvorstellung’ (Rokumoto, Reference Rokumoto1986, p. 196). The point of the distinction between the narrow sense of legal consciousness and legal conception is that the former can change for a rather short period of time, while the latter tends to persist. Rokumoto argued that the Japanese normative conception ‘giri’ was the ordering principle of pre-modern Japanese society and formed the founding element of Japanese legal culture (Rokumoto, Reference Rokumoto1986, pp. 215−16, 221−31, 2004, pp. 29−30).Footnote 47
Though not based on Rokumoto's framework, surveys of opinions and attitudes about the law have been conducted several times since the 1970s (Nihon Bunka Kaigi, 1973, 1982; Kato, Fujimoto et al., Reference Kato, FUJIMOTO and HO ISHIKI KOKUSAI HIKAKU KENKYUKAI2003; Kato and Fujimoto, Reference Kato and Fujimoto2006).Footnote 48 The surveys of Nihon Bunka Kaigi tried to measure characteristics of Japanese legal attitudes and found that respondents tended to have little interest in laws, expect flexible applications of legal norms, and split into punitive and lenient groups. These findings were understood to support the view that Japanese people have attitudes towards the law that are different from the West.Footnote 49 In contrast, Masanobu Kato suspected that anecdotal episodes that Kawashima used as examples to show distinctive Japanese legal attitudes were misleading (Kato, Fujimoto et al., Reference Kato, FUJIMOTO and HO ISHIKI KOKUSAI HIKAKU KENKYUKAI2003, pp. 5−6), and did not find peculiarly Japanese attitudes towards contracts in their international survey results (Kato and Fujimoto, Reference Kato and Fujimoto2006).
The latest survey of Japanese legal attitudes was conducted in 2005 as a part of a large research project, The Civil Justice Research Project. The survey asked about legal attitudes and knowledge as well as social attitudes towards norms and disputes.Footnote 50 It also replicated the survey of Nihon Bunka Kaigi almost thirty years later. They found that Japanese attitudes had not changed significantly except for becoming more punitive (Matsumura et al., Reference Matsumura, Kinoshita, Fujimoto, Yamada, Fujita and Kobayashi2007c). However, full analyses of the survey results are yet to come.
Scholars who studied under Rokumoto or Tanase also addressed the issues Kawashima raised, but findings differed. Ichiro Ozaki, in his research on disputes among residents in eleven condominiums in a residential district of Yokohama, found that disputes tended to deteriorate to emotional exchanges, without much possibility of communication based on reason (Ozaki, Reference Ozaki1996). But Kiyoshi Hasegawa conducted fieldwork on private agreements among residents, also in Yokohama, and found that residents could behave as rational actors who used the law in a reasonable way in their attempts to preserve residential environments (Hasegawa, Reference Hasegawa2006). Yoshitaka Wada, based on his research on disputes between tenants and house owners, argued that the meaning of dispute resolution had been changing in urban society from restoring harmonious relations to handling immediate disputes while letting a conflicting relation continue, and found that people mobilised the law as a strategic weapon to pursue their self-interests (Wada, Reference Wada1982). Masaki Abe conducted field research on how local residents invoked the law for the purpose of environmental protection and found a similar tendency to that found by Wada: people mobilised the law as one of the instruments available to achieve their purposes (Abe, Reference Abe2002).
These four studies were conducted as qualitative research to contribute to both empirical and theoretical understandings of the use of the law, rather than identifying overall patterns of behaviour in Japanese society. Ye, these studies seemed to show that the actual behaviour of Japanese people could be different from and more varied than that which Kawashima described in his empirical arguments. They also seemed to limit the validity of his normative arguments.
It would be fair to note here that Kawashima's empirical arguments of legal consciousness began to be directly and frequently critically assessed by foreign as well as Japanese scholars from the late 1970s. The central issue of the debate was whether the Japanese normative consciousness was the main cause of a small number of litigation cases, though the theme was not always shared and the way of conceptualising the issue was different among scholars (Haley, Reference Haley1978, Reference Haley1991; Oki, Reference Oki1983; Upham, Reference Upham1987; Ramseyer, Reference Ramseyer1990; Tanase, Reference Tanase1990; Wallschaeger, Reference Wallschlaeger and Baum1997; Rokumoto, Reference Rokumoto2004).
The Civil Justice Research Project (2003−2008), directed by Masayuki Murayama, conducted three kinds of nationwide research to cover the whole process of problem-solving behaviour, from experience of a problem to the use of litigation. The first survey, the Disputing Behaviour Survey, consisted of a Consciousness Survey, which was discussed above, and a Behaviour Survey that enquired into problem experience and subsequent behaviour. The second survey, the Advice Seeking Behaviour Survey, focused on how people sought advice from various agencies and how they evaluated it. The samples of these surveys were randomly chosen from among Japanese people from twenty to seventy years old. The third research, the Litigation Behaviour Survey, took data from randomly chosen litigation cases at the district courts and then asked questions of the litigants and their lawyers.Footnote 51
The Disputing Behaviour Survey found little evidence to support the perception that Japanese people experienced few legal problems and that they were reluctant not only to make claims but also to reject claims. Patterns of behaviour in these early stages of problem-solving were surprisingly similar between Japan and the US, and significantly affected by the types of problem that people experienced. These findings raise questions about Kawashima's presumption that legal consciousness defines disputing behaviour and, even if legal consciousness did matter, to what extent and how it mattered concerning behaviour.
The Litigation Behaviour Survey found, contrary to the popular view, that litigants were less satisfied when litigation ended in settlement than when litigation ended in judgment (Foote and Ota, Reference Foote and Ota2010, p. 228).Footnote 52 The survey further obtained interesting findings about gaps in perception between litigants and their lawyers.Footnote 53 Apparently these findings indicate that behaviour more closely related to the formal legal system tends to be shaped by institutional circumstances internal to the formal legal system.
The Civil Justice Research Project was carried out by more than thirty scholars, including some sociologists who did not have legal backgrounds. During the period of this project, and also afterwards, similar and other types of research, such as qualitative interviews and Internet surveys, were also conducted by members of the Project, though only partial initial findings have been published so far (Tamaki, Maeda, Sugino, Minimikata and Murayama, Reference Tamaki, Maeda, Sugino, Minamikata and murayama2009; Maeda, Reference Maeda, Ota, Foote, Hamano and Murayama2009). Such a large-scale research project could be done because general interest in empirical evidence about the function of the civil justice system increased as the Justice System Reform proceeded. The final report of the Justice System Reform Council declared that it was the purpose of the series of reforms planned by the Council that the rule of law would be firmly established in every corner of Japanese society. This was a clear and significant break away from traditional policy since the Meiji era that laws should be learned and followed only as Western techniques.Footnote 54 Around the turn of the century, empirical studies with a policy orientation began to be conducted, though those studies also tried to answer theoretical questions. The Civil Justice Research Project was an example of such a study. Another is the research on how litigants evaluate their experience of litigation. The purpose of the research was in many ways similar to consumer satisfaction research, but it was designed by a legal psychologist, Ikuo Sugawara, to obtain data on theoretical questions of procedural justice (Sugawara, Yamamoto and Sato, Reference Sugawara, Yamamoto and Sato2010).
2 Criminal justice
In the field of criminal justice, Kawashima did not publish an article or book, though he planned to write a chapter in his Japanese book on Japanese legal consciousness. The manuscript was discovered after his death, as we will see later.
It was Ryuichi Hirano who played a significant role in promoting empirical studies of criminal justice. German legal doctrine dominated the field, but Hirano was one of the first legal scholars who studied in the US after World War II. Though he did not conduct any empirical research by himself, he helped the development of sociological jurisprudence in the field of criminal law, paying attention to actual practice in the construction of legal doctrines.Footnote 55 He tried to introduce adversarial procedure into the Japanese criminal justice process, criticising the inquisitorial aspects of the Japanese criminal procedure.Footnote 56 In his later years, he diagnosed the Japanese criminal trial, which he saw as a forum for ascertaining the defendant's guilt rather than deciding whether a defendant was guilty or innocent. He concluded that it would be hopeless unless a drastic reform such as the introduction of a jury or an assessor's system could be implemented (Hirano, Reference Hirano and Hiraba1985). The latter of these was later realised as the Saiban'in Seido, the lay judge system, by the Justice System Reform. Hirano's criticism of the Japanese criminal justice system reflected a common concern of criminal law scholars with how to locate the Japanese system between the pre-war European continental tradition and the post-war American adversarial ideal.
Social scientific research on criminal justice began in the field of police studies. The first research in this field was made by Setsuo Miyazawa, who observed detectives' work and conducted a questionnaire on crime investigation in Sapporo (Miyazawa, Reference Miyazawa1985).Footnote 57 He relied on Amitai Ezioni's theory of organisation and found that detectives' involvement in their work was mainly calculative and that they sought proactive investigation activities, trying to interpret the law for the interest of law enforcement, because the organisational control of achievement evaluation emphasised the clearance of cases.
Masayuki Murayama conducted the second empirical study on the police, observing uniformed police activities at police boxes and in patrol cars in Tokyo (Murayama, Reference Murayama1990). He found that the police put strong emphasis on law enforcement, while their routine work was mostly about the maintenance of order. Because of the discrepancy, cases that were often serious for ordinary people were not handled adequately. The emphasis on law enforcement resulted from the occupational and organisational interests of police officers, based on their self-esteem and desire for promotion.Footnote 58
During the 1970s, when the fieldwork on the police was conducted, a comparative survey on responsibility was also conducted in Detroit in the US and Yokohama in Japan (Hamilton and Sanders, Reference Hamilton and Sanders1992; Ishimura, Tokoro and Nishimura, Reference Ishimura, Tokoro and Nishimura1986). This can be seen as a survey on Japanese normative consciousness in the field of criminal justice, but the design and method of research were much more sophisticated than those of the Japanese legal consciousness studies conducted in the early 1970s, as the former used experimental designs which would be more frequently adopted in later surveys designed by psychologists (Matsumura, Reference Matsumura, Fujimoto, Kinoshita, Yamada, Fujita and Kobayashi2007b) and game theorists (Ota, Reference Ota, Ota, Foote, Hamano and Murayama2009). Hamilton and Sanders found two images of the responsible actor, a stranger in the US and a friend in Japan. They argued that visions of responsibility and justice were shaped by variations in the hierarchy and solidarity of everyday social life, and presented two configurations, equality and low solidarity in the US and authority-subordination and high solidarity in Japan (Hamilton and Sanders, Reference Hamilton and Sanders1992, p. 203).
In the early 1990s, Murayama returned to the same police station to see how changes of policing policy affected routine police activities (Murayama, Reference Murayama, Miyazawa and Kaminaga1996). Murayama also conducted questionnaire surveys and interviews on the criminal defence practice of lawyers and found that most court-appointed counsel assumed the guilt of defendants, following the inquisitorial model of defence rather than the adversarial (Murayama, Reference Murayama, Feeley and Miyazawa2002).
After Kawashima passed away in 1992, a handwritten manuscript of Chapter 6 on ‘Consciousness on Crime and Punishment’ was found among his writings (Kawashima, n.d.).Footnote 59 In this manuscript, Kawashima pointed out two characteristics of the Japanese Penal Code: very broad definitions of crimes and very broad scope of punishment, that is, a wide range of discretion given to judges in deciding what would constitute crime and what punishment to be imposed upon it. These characteristics, Kawashima argued, were in stark contrast to Western penal law that had more detailed definitions of crime and punishment. He considered that Western legal consciousness demanded clear and fixed definitions of crime and also a clear and fixed relationship between crime and punishment, whereas Japanese legal consciousness saw evaluation of crime and punishment as flexible and did not accept a fixed relationship between crime and punishment. According to Kawashima, such contrasting differences in legal consciousness are also reflected in differences in law enforcement practice in Japan and the West: policemen usually condone traffic violations and prosecutors exercise wide discretion in Japan, while policemen enforce the law mechanically in the West.Footnote 60
As this manuscript was found after his death, it did not influence the development of the empirical studies of criminal justice we saw above. But it clearly shows that Kawashima had a strong presumption that a certain legal consciousness was shared among the Japanese and that it must have defined patterns of behaviour also in criminal justice. However, in the manuscript, he also argued that it was important to distinguish the consciousness of the ordinary people and the consciousness and behaviour of those in political power. But he somehow abandoned this line of argument and went on to write on the legal consciousness of the ordinary people.
Retrospectively Miyazawa's and Murayama's studies of the police focused on aspects of the consciousness and behaviour of those in political power. These studies indicated that the occupational and organisational interests of police officers are crucial in explaining police behaviour. Both Miyazawa and Murayama did not notice the cultural tendencies in police behaviour that Kawashima presented as Japanese characteristics. These police studies indicate that the ways in which law enforcement behaviour is institutionalised are much more significant in shaping their behaviour than the consciousness of the ordinary people.
Foote (Reference Foote1992) presented an excellent description of the official view of the exercise of their power, which he characterised as benevolent paternalism. This study shows another aspect of what Kawashima called the consciousness of those in political power. It seems clear that what Kawashima described as Japanese characteristics were those of a patriarchal criminal justice system.Footnote 61
These developments in research in criminal justice indicate complexities of different kinds of consciousness and the limited effects of the ordinary people's consciousness upon official behaviour. As we saw in civil justice, ordinary people and officials of a justice system have different perceptions of the law and the legal system. Future research would address issues of how, to what extent, and in what context legal consciousness matters in shaping official behaviour and the behaviour of ordinary people.
The Saiban'in Saiban, trial by six lay assessors and three professional judges, is an institutional forum where the consciousness of ordinary people meets that of legal professionalsFootnote 62 As lay assessors are prohibited by law from talking, research on Saiban'in Saiban has mainly focused on public attitudes on the new institution. Matsumura et al. conducted a survey before and after the lay judge system started, to examine public attitudes towards the Saiban'in Saiban and criminal justice to see how they changed after the system began to work in 2009 (Matsumura, Kinoshita, Ota and Yamada, Reference Matsumura, Kinoshita, Ota and Yamada2008, Reference Matsumura, Kinoshita, Ota and Yamada2012). Simple descriptive findings have been reported so far.Footnote 63
3 The legal profession
Zensuke Ishimura introduced US-type empirical studies of the legal profession to Japan in the 1960s (Ishimura, Reference Ishimura1966, Reference Ishimura1969). But it was Kahei Rokumoto who conducted the first nationwide survey of Japanese lawyers in 1981. This was a project of the Japan Federation of the Bar Associations (JFBA) to better understand the legal practice and financial situation of Japanese lawyers (Nihon Bengoshi Rengokai, Bengoshi Gyomu Taisaku Iinkai, 1981).Footnote 64 The JFBA has repeated the nationwide survey every ten years since then and the data give us a good overview of how the Japanese legal profession has or has not changed in various aspects of their practice.Footnote 65
The enactment of the law in 1986 that allowed foreign lawyers to practise in JapanFootnote 66 prompted the expansion of Japanese law firms, though their size was still limited by the small population of lawyers.Footnote 67 The Justice System Reform brought a series of changes to expand legal services in Japan. But the reforms were implemented with the grudging consent of the JFBA, as lawyers argued that there would not be enough need for lawyers. In this way, Kawashima's empirical argument overshadowed the reform process from its beginning.
To increase the number of lawyers, professional law schools were established in 2004. The new bar examination began in 2006, which graduates of the new law schools took to become qualified as lawyers. The number of newly registered lawyers, including judges and prosecutors, increased from around 500 during the 1990s to 1,000 in the early 2000s, and 2,000 from 2007. Given the increase of lawyers, law offices began to expand their practices (Hamano, Reference Hamano and Alfred2007), and the largest law office now has about 500 lawyers. At the other end of legal services, the Ministry of Justice established the Japan Legal Support Center in 2006, which provides legal aid both for civil and criminal cases. It also established local offices in every prefecture where free legal advice is given to the indigent.Footnote 68
How much these changes affected the structure of the legal profession can be traced by the results of the JFBA surveys. Although lawyers in Tokyo began to show some changes in their practice, typically, by increasing work on non-dispute cases, there were few significant changes before the turn of the century: about half of Japanese lawyers worked alone; 80 per cent or more of the lawyers worked at offices where fewer than four lawyers worked together; about half of the clients were first-time clients. However, significant changes began to occur in the 2000s. Only 34 per cent of lawyers worked alone in 2010.Footnote 69 The percentage of lawyers who worked at offices with twenty or more lawyers increased from 1 per cent in 2000 to 9 per cent in 2010. The percentage of first-time clients also increased from 52 per cent in 2000 to 60 per cent in 2010. These changes were most salient in Tokyo (Nihon Bengoshi Rengokai, 1991, 2002, 2011a).
Empirical research on legal services and the legal profession has been conducted since significant changes in the legal profession, albeit small at the time, began in the 1990s. Ryo Hamano conducted interview research on legal practice for corporations in Tokyo in the early 1990s and found that there would be a large latent demand for legal services, particularly among smaller companies (Hamano, Reference Hamano1993−94). Murayama et al. conducted nationwide research on legal advice provided by bar associations, in co-operation with the Japan Federation of Bar Associations, in 2007, and found that social distance and concern with the lawyer's fee would deter the public from visiting lawyers (Murayama, Reference Murayama and Sandefur2009, pp. 185−90; Murayama et al., Reference Murayama, Moriya, Ishida, Maeda, Niki and Ono2010). More recently, Miyazawa directed a survey of lawyers, to compare the specialisation and stratification of the legal profession between Japan and the US in 2008, drawing upon the findings of Chicago Lawyers (Heinz and Laumann, Reference Heinz and Laumann1982; Heinz, Nelson, Sandefur and Laumann, Reference Heinz, Nelson, Sandefur and Laumann2005). The survey found that the traditional way of lawyering, with individual and small company clients, was prevalent nationwide, but that, in Tokyo and Osaka, a rather small segment of younger generation lawyers specialised in corporate clients. The survey also found an advancement of female lawyers into the field of corporate business law as well as family law (Miyazawa et al., Reference Miyazawa, Fujimoto, Bushimata, Kaminaga, Ageishi, Ishida and Osaka2010; Miyazawa, Bushimata, Ishida and Ageishi, Reference Miyazawa, Bushimata, Ishida and Ageishi2011; Miyazawa, Bushimata, Fujimoto and Ageishi, Reference Miyazawa, Bushimata, Fujimoto and Ageishi2012). Hamano's and Murayama et al.'s research was concerned with the needs of legal services, starting from the underlying question of why there was a small number of lawyers in Japan. In this sense, these studies shared a concern with the issue Kawashima raised in his arguments on the Japanese legal consciousness.
Conclusion
Academic interest in the sociology of law emerged in Japan among legal scholars who were struggling to make their interpretation of statutory provisions fit the social reality after the adoption of the Western European legal system. Because of this, the sociology of law has been treated as a science for legal scholars to understand social reality, and the subject developed as an empirical social science in Japan. Ehrlich's scheme of how living law grew into legal provisions inspired legal scholars to discover living law in their attempt to show how legal provisions would be interpreted to fit social reality. Though such concerns continued in the post-war period, Kawashima turned the scheme upside-down, emphasising that the new Constitution should become Japan's ‘living law’. Here we can see how the interplay of society and law was viewed in different political conditions. The Justice System Reform provided another opportunity for legal sociologists to observe the effects and limitations of using law to change society. The centrality of empirical studies does not mean that there have been few theoretical studies. Though this paper has focused on empirical studies, there have been plenty of theoretical studies, as Japanese scholars have always been keen on new developments of the sociology of law in foreign countries.Footnote 70 However, what has been considered to be the core part of the sociology of law is empirical research.Footnote 71
The sociology of law was considered as a branch of legal scholarship even before World War II, partly because few scholars in sociology worked on law and legal institutions at that time. Kawashima succeeded in making the sociology of law a branch of legal scholarship. Since he taught the sociology of law, it has been taught to law students in undergraduate and graduate programmes of law at Japanese universities, and an increasing number of universities have included the subject in their law curricula. The sociology of law remains a major subject of law study even after the establishment of the new professional law schools.Footnote 72
As we have shown, the Justice System Reform gave unprecedented opportunities for Japanese legal sociologists to conduct large-scale quantitative research. Until the last decades of the twentieth century a rather limited number of legal sociologists as well as legal psychologists sought to expand the research field of the sociology of law in Japan. Since the Justice System Reform began, however, a much larger number of social scientists with legal backgrounds have engaged in empirical work, further expanding the field of the sociology of law. Before the Justice System Reform, nationwide surveys were rare, but not any more. At the same time, academic research has been increasingly oriented towards policy questions. This is in a sense inevitable. As a large-scale survey needs a large budget, usually provided by public funds, it needs to be useful for the taxpayers. However, research for policy can also be designed to answer theoretical questions. In this sense, we now have plenty of data obtained by surveys on legal problems, civil litigation, the lay judge system and others. But the theoretical implications of the research findings have not been fully analysed or discussed. This will be a significant agenda for us to go forward to the next stage of development in the sociology of law.
There is another new development in the sociology of law in Japan. That is, in the last decade, sociologists without legal backgrounds have finally begun to join empirical research on law and legal institutions. The sociology of law was monopolised by legal scholars for a long time. But barriers surrounding law seem to be becoming lower, and law is less foreign to scholars without legal backgrounds. Participation of pure social scientists in the sociology of law may change basic concerns shared among legal sociologists in Japan. But so far, comparison between legal provisions and practice,Footnote 73 on the one hand, and Japan and the West, on the other, has been the main concern among Japanese legal sociologists. The Justice System Reform encouraged research on the first of these and research of this kind will continue to be conducted. As for the Japan − West comparison, the focus here seems to be changing from the normative to the empirical, as views of the West are becoming more realistic, in other words, more sociological. Yet, research based on this concern will also continue to be done. Being at the crossroads of these two concerns is the distinctive position of the sociology of law in Japan in the global context, as Kawashima's work indicated.
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Introduction
The Japanese Association of Sociology of Law (JASL) was established in 1947, only two years after the end of World War II. This indicates that there was widespread interest in the sociology of law even before and during World War II. In fact, JASL is the oldest national association in the field of law and social sciences among the existing national associations in the world.
Why was there so much interest in the sociology of law in Japan? The answer partly lay in the fact that Japanese laws, which had been imported from Europe at the end of the nineteenth century, were not consistent with social practice in pre-war Japanese society. The Meiji government tried to import Western laws as quickly as possible, although the government did not embrace the individualism and universalistic values inherent in Western laws.Footnote 1 The main reason for the speedy importation of Western laws was that the government was concerned with the preservation of national independence against Western colonisation and wanted to abolish as soon as possible the unequal treaties with Western countries, which included an extra-territoriality clause for foreign nationals. Therefore, the government invited lawyers from Europe to legislate Western style codes and established the imperial constitutional system.Footnote 2
This particular way of importing Western laws had significant and lasting impacts on Japanese legal scholarship, which developed characteristic concerns: first, an interest in comparing law and practice between Japan and the West, in which the West was often idealised;Footnote 3 second, a focus on comparing laws and social realities in Japan, as laws were mostly imported from the West and thus ‘foreign’ to people's lives. These concerns were also shared by Takeyoshi Kawashima, who presented influential and sometimes controversial hypotheses of Japanese legal behaviour.
This paper, while looking back at the development of the sociology of law in Japan from its emergence to the latest period, pays attention mainly to Kawashima's works, putting them in a larger historical context. Its purpose is to show how his works affected subsequent research and how they were also critically assessed by the studies of later generations. The paper divides the relevant history into three stages: (1) the emergence of the sociology of law up to the end of World War II, which will place Kawashima's arguments in a broader context; (2) the establishment of the sociology of law as social science from the post-war period to the 1970s, when Kawashima made his well-known arguments about Japanese legal consciousness; and (3) the proliferation of empirical studies in the sociology of law since the 1980s, the period when Kawashima's theoretical and empirical arguments were assessed more critically. In the first stage, the sociology of law was born as a close sibling of the free law theoryFootnote 4 and sociological jurisprudence, as law professors were concerned with gaps between statutes, on the one hand, and traditional practice and social changes triggered by industrialisation, on the other.Footnote 5 However, in the process of its post-war development, the sociology of law was clearly differentiated from jurisprudence and legal theories, and sociological studies of law were increasingly conducted by empirical social scientists, rather than law professors,Footnote 6 though most of the empirical scholars had legal backgrounds. Kawashima, while teaching the law of property, began to teach the sociology of law, and, as we will see later, played a central role in introducing social sciences to empirical research on law. Most empirical studies tried to find and explain actual practice, as distinguished from legal provisions. But, at the same time, they were explicitly or tacitly comparative. Kawashima's arguments about Japanese legal consciousness clearly show these characteristics, pointing out pre-modern social practice in contrast with Western modern legal consciousness. Throughout its long history, the sociology of law has been considered to be an empirical science designed to provide information about how the law and legal institutions actually function.
I The birth of the sociology of law in JapanFootnote 7
The idea of the sociology of law was first introduced into Japan around 1920. Already in the 1910s it seemed that some legal scholars noticed the publication of Eugen Ehrlich's Grundlegung der Soziologie des Rechts, published in Reference Ehrlich1913, and the high reputation of his work in the US. Kenzo Takayanagi, a scholar in Anglo-American law, visited Ehrlich in Switzerland in 1919 and asked him to contribute to the law review issued by the Faculty of Law at the Imperial University of Tokyo. His article, ‘Gesetz und lebendes Recht’ and its Japanese translation were published in the law review Hogaku Kyokai Zassi in 1920 (Ehrlich, Reference Ehrlich and Hatoyama1920). In this paper, Ehrlich contrasted statutory provisions and living law, saying that Japan could legislate the civil code most similar to the first draft of the German civil code in the 1910s, as German provisions adopted from Roman laws were already general and abstract enough for another country to import them, while living law as rules of conduct differed from one country to another. Ehrlich argued that legal scholars had to find living law in a society, so that jurists could fill concrete meanings in abstract provisions. He emphasised that the knowledge of living law in a society was necessary to adjudicate, educate and legislate properly, and proposed setting up a research institute, just like a national census bureau, to collect data on the living law.
Another paper by Ehrlich, ‘Die Soziologie des Rechts’, appeared in Hogaku Kyokai Zasshi in 1922, together with a Japanese translation and introduction in which Takayanagi explained the contemporary trends of legal thought in the German academic world (Ehrlich, Reference Ehrlich and Takayanagi1922a).Footnote 8 In this paper, Ehrlich articulated the idea of living law as social order, and argued that social scientists of law should observe the totality of law in relation to a society, and integrate written laws into social relations.
The idea of sociological jurisprudence, advocated by Roscoe Pound, was also introduced during this period. Law professors specialised in civil law and in criminal law wrote articles on Pound's sociological jurisprudence (Ono, Reference Ono1924; Wagatsuma, Reference Wagatsuma1926a),Footnote 9 which shows that academic interests in empirical studies were not confined within a small circle.
Ehrlich's idea of living law seemed to be accepted among civil law professors, partly because the free law movement had already been introduced by law professors by that time (Mito, Reference Mito1912; Nakada, Reference Nakada1913).Footnote 10 The strong interests in free law theories among Japanese legal scholars resulted from the fact that social practice among the Japanese people often differed from what the Civil Code provided. A typical example was marriage. Marriage in Japanese agrarian communities was social marriage, which did not require any legal or religious procedure, while the Civil Code required a marrying couple to submit a legal document (Nakagawa, Reference Nakagawa1926). Many men and women failed to follow the procedure and women could not get legal protection when their de facto marriages failed. The court later developed a theory of illegal breach of marriage engagement to protect abandoned wives.Footnote 11 In this way, lawyers were concerned with learning social practice and interpreting a written law to fit the reality.
At the same time, industrial urbanisation gradually began to occur around the turn of the century. As a result, the Factory Act was legislated to protect factory workers in 1911 and it came into effect in 1916. As disputes between tenants and landlords increased in urban centres, new statutes were enacted to regulate rent contracts and conciliate rent disputes in early 1920s. Disputes between tenant farmers and landlords also increased during the same period.Footnote 12 All these social upheavals indicated that the Civil Code could not regulate new social relationships properly. In other words, Japan began to experience social changes similar to those that prompted the birth of the free law movement in Germany and sociological jurisprudence in the US.Footnote 13
Although the free law theory came to Japan from Germany and France, academic impetus for research on living law mainly came from the US, as well as from Ehrlich himself. Izutaro Suehiro, a civil law professor who later became the early founder of the sociology of law in Japan, wanted to study in Germany in 1914, but could not go there, because World War I started that same year. Instead, Suehiro went to the US to study at the University of Chicago Law School, as his colleague, Kenzo Takayanagi, was there, having come from Harvard Law School, where he studied sociological jurisprudence (Takayanagi and Takahashi, Reference Takayanagi and Takahashi1915).
At Chicago, Suehiro encountered the case method and realised that specific and concrete facts were crucial in legal interpretation, while developing deep doubt about the German way of legal interpretation.Footnote 14 After coming back to Japan, he set up a study group of court judgments to develop legal interpretation focusing on facts.Footnote 15 At the same time, he got involved in government research on the customary practices of tenant holdings, especially permanent tenants, among peasants. When a conciliation procedure was set up to cope with the increase of disputes between tenant farmers and landlords, he published a book in which he explained how the reorganisation of land use and ownership after the Meiji Restoration overlooked the customary practice of land use during the Tokugawa period, including the use of commons, and argued for the need to protect peasants in such a way as to motivate them to live from agriculture (Suehiro, Reference Suehiro1924).Footnote 16
Suehiro also began to teach labour law around 1921, soon after coming back from his study abroad.Footnote 17 He later published a book on labour law in 1926. In the introduction to a chapter on legislating a law of labour unions, he emphasised that the legislature had to have detailed knowledge of social relationships which the law would regulate, and also clear understandings of the effects of legal means, because legal means might not be able to achieve everything that the law would intend to achieve (Suehiro, Reference Suehiro1926, pp. 10−22). Here we can clearly see that Suehiro adopted sociological jurisprudence to discuss the proposed statute of labour unions.
It could be argued that these works of Suehiro can be considered to be in legal scholarship rather than the sociology of law, as his main concern was with how to use the law in a pragmatic way. However, he recognised the need for an empirical science of law independent of traditional legal scholarship (Suehiro, Reference Suehiro1951). Based on his idea of scientific research of the law, Suehiro led a group of legal scholars to conduct field research on the living law in North China for four years from 1940. According to his guidelines for the research, the purpose of the research was to describe the legal custom practised in Chinese society. But he emphasised that the research would look at effective norms, ‘living law’, and the dynamics in which new social forces clashed with the traditional social order. What Suehiro called ‘living law’ in the guidelines was not traditional customs as such, but effective social norms that people actually complied with as rules of conduct, social norms that were affected by formal legal provisions, traditional customs and all other social, political and economic forces.Footnote 18 He warned against imposing legal theories or categories upon facts, but urged researchers to observe and report facts as they existed (Suehiro, Reference Suehiro1940). Although this research was criticised for its political implications,Footnote 19 it provided valuable research experience to participating legal scholars.
As Suehiro taught the civil law, especially property law and labour law, academic interests in the sociology of law were particularly strong in these fields of law. Michitaka Kaino was one of the participants in the research in China and he published two books on land law and the right to commons. These books were widely read and they brought increasing interest in the sociology of law (Kaino, Reference Kaino1943a, Reference Kaino1943b). Takeyoshi Kawashima also carried out research in rural villages,Footnote 20 concerning tenant farming, land ownership, commons and family relationships. He conducted research in Nagano Prefecture with students (Kawashima and Watanabe, Reference Kawashima and Watanabe1944) who later came to be involved in the creation and development of the JASL (Kawashima, Reference Kawashima1978).
II The post-war foundation of the sociology of lawFootnote 21
Soon after the end of World War II, young legal scholars conducted empirical research in villages of peasants and fishermen.Footnote 22 Sociological studies of law were now clearly distinguished from ordinary legal scholarship, and no longer accepted a subordinate role to legal scholarship. At the same time, reflecting the political enthusiasm for democracy of the time, it was expected that empirical findings were not to be used to justify the undemocratic values lingering in post-war society but to overcome them and advance democracy under the new Constitution.Footnote 23 Even if standpoints differed widely among scholars from Marxist to Weberian theorists, it was this pro-democratic enthusiasm that explains why the sociology of law attracted so much academic attention, which resulted in the creation of the JASL soon after World War II.Footnote 24
But it was Kawashima who changed the whole landscape of the sociology of law in Japan at this time. He taught civil law and did research in particular on the law of ownership. Kawashima still relied on Ehrlich, not only in criticising the German-style legal scholarship prevailing in Japan (Kawashima, Reference Kawashima1951a), but also in conducting empirical research on living law.Footnote 25 However, he turned the pre-war scheme of Ehrlich upside down and emphasised the necessity for social change. When Suehiro and others tried to find living law in pre-war Japan, they tried to ‘learn’ from living law so that they could interpret and apply legal statutes in a manner to fit them to the social reality of the time.Footnote 26 Kawashima believed in the need for a new constitutional law, and worked with the drafting of a new Constitution and the new rules of family law in mind.Footnote 27 Despite facing the persistent attitudes of traditionalists, he strongly advocated changing the living law of pre-war Japan.Footnote 28 His papers on Japanese legal consciousness were written under these political and social circumstances,Footnote 29 though their theoretical implications went far beyond the contemporary circumstances.
Less than a year after the end of the war, Kawashima published an uncompleted paper in which he contrasted the traditional Japanese normative consciousness with the modern legal consciousness in the West (Kawashima, Reference Kawashima1946a).Footnote 30 He argued that Japanese people widely failed to comply with economic regulation law even during the war, because the law required, in order to function, a modern legal consciousness, which Japanese people did not have. He strongly urged Japanese people to make the modern law epitomised in the post-war Constitution ‘our living law’, in order to democratise Japan. In this and a later revised paper, Kawashima presented a model of ‘modern legal consciousness’, drawing upon the Kantian notion of morality with specific reference to the categorical imperative.Footnote 31 Concerning the Japanese pre-modern normative consciousness, Kawashima presented the social relationships between tenants and landlords in farming and housing as social conditions that bred the traditional consciousness,Footnote 32 while pointing out differences between the modern law and the Japanese consciousness in such legal areas as ownership, contract, family, public law and international law.Footnote 33 During the 1940s and 1950s, he devoted himself to critically analysing traditional social norms in relation to their social backgrounds (Kawashima, Reference Kawashima1946b, Reference Kawashima1951b, Reference Kawashima1951c, Reference Kawashima1957).
Kawashima continued to write on incongruities between the institution of law, in particular litigation, and the Japanese legal consciousness. The best-known article in English is ‘Dispute Resolution in Contemporary Japan’ (Kawashima, Reference Kawashima and von Mehren1963) and the one in Japanese is Nihonjin no Ho Ishiki [Japanese Legal Consciousness] (Kawashima, Reference Kawashima1967).Footnote 34 However, in these works, the focal point of argument clearly changed from the normative to the empirical. He compared the US and Japanese statistics of litigation cases in traffic accidents and argued that the Japanese pre-modern normative consciousness was a much more important cause of the small number of litigation cases than the cost and delay of litigation.
His empirical argument proved to be more controversial than his normative one, inviting criticism from Japanese and foreign scholars, as we will see in the next section. Although the phrase ‘legal consciousness’ was used as a direct translation of the Japanese words Ho Ishiki in the English translation of his argument on contract (Kawashima, Reference Kawashima and Stevens1974), Kawashima did not use the words ‘legal consciousness’ in his own English article. He later pointed out that the English words ‘legal consciousness’ were misleading, as he meant to include the subconscious as well as the conscious. He also noted that his idea of legal consciousness, Ho Ishiki, presupposed a theoretical framework of cultural sociology or anthropology, but included psychological elements such as emotional/affective response, desire/volition and value judgment (Kawashima, Reference Kawashima1972c, pp. 403−05).Footnote 35
However, Kawashima wrote about not only the Japanese pre-modern attitudes but also the social structure that supported such attitudes (Kawashima, Reference Kawashima1960). He seemed to believe that subsequent social changes brought by further industrial urbanisation would produce a transformation of the Japanese legal consciousness and eventually an increase in litigation.Footnote 36 He considered that there were various factors which would influence the legal control of a society and that consciousness was not the ultimate fundamental determining factor of legal phenomena. But he argued that the reason for focusing on legal consciousness was that legal consciousness not only affected law-related behaviour, but also was the factor closest to law-related behaviour among relevant factors (Kawashima, Reference Kawashima1967, pp. 10−14). Crucially, Kawashima argued that legal consciousness was the most powerful predictor of legal behaviour, but that legal consciousness had a social foundation and would change as its social foundation changed (Kawashima, Reference Kawashima1967, pp. 197−203).
Kawashima taught at Stanford University for a year in 1958−59, and after this became increasingly interested in social scientific studies in the US.Footnote 37 He not only followed the development of socio-legal studies in the US,Footnote 38 but also expanded the theoretical horizons of the sociology of law in Japan extensively. After he retired in 1970, he began to practise as a private attorney, but he continued to make efforts to open up Japanese sociology of law to foreign scholars,Footnote 39 and also other fields of social sciences.
It was his notable achievement that he edited a series of ten volumes of Ho Shakaigaku Koza [Lectures on the Sociology of Law], published from 1972 to 1973. This series was not a collection of readings, but of original articles. It covers virtually all areas of the sociology of law: Volume 1 about the formation of the sociology of law, including nineteenth-century scholars in law, sociology, anthropology, economics, political science and psychology; Volume 2 about the present situation of the sociology of law in foreign countries from the US to European and socialist countries, and in pre-war and post-war Japan; Volumes 3 and 4 about the theoretical and methodological foundations of the sociology of law, including methods of social research, social system theory and Kawashima's model of law as the focal point in the sociology of law;Footnote 40 Volumes 5 and 6 about law and dispute resolution, mainly including various theoretical approaches to adjudication and non-judicial decision-making processes; Volumes 7 and 8 about society and law, including Marxist and Weberian theories, the relation between living law and statutes in various legal fields in Japan, such as commons, land inheritance and labour, and the impacts of law and legal institutions upon society; and Volumes 9 and 10 about history, culture and law, starting from primitive and archaic societies to traditional societies and their modernisation, and finally contemporary societies in Europe, socialist countries, Asia and Africa.
A large number of scholars not only in law but also in the social sciences and humanities contributed to the series. Kawashima intended to show the sociology of law as an interdisciplinary science to students and scholars in both law and the social sciences. His intention was well served by the series that clearly expanded the horizon of the sociology of law in Japan, far beyond the study of living law.
III The rise of the sociology of law as empirical social science
While Kawashima followed the rapidly growing literature of social scientific studies of law in the US and Europe in the 1960s and 1970s, young scholars began to conduct empirical studies inspired by studies in the US and Europe. It is also during this period that various areas of law became objects of empirical studies, though fieldwork to study living law in rural villages and also in farming areas in urban suburbs continued as the tradition of the sociology of law.
Scholars who played significant roles in the post-Kawashima period were Kahei Rokumoto and Takao Tanase, who both started their academic careers under Kawashima. Rokumoto was the successor of Kawashima for the chair of the sociology of law at the University of Tokyo and, while advocating and conducting empirical studies, introduced foreign sociological theories of law, such as those of Niklas Luhmann and Philip Selznick, into Japan (Luhmann, Reference Luhmann, Murakami and Rokumoto1977; Nonet and Selznick, Reference Nonet, Selznick and Rokumoto1981). Rokumoto was also the first scholar who taught only the sociology of law, but no other subjects in law. Takao Tanase also worked heavily in the field of civil justice. He was a theorist rather than an empirical researcher, though he conducted some empirical research in the US (Tanase, Reference Tanase1983, Reference Tanase1992, Reference Tanase2003).Footnote 41 Tanase taught the sociology of law at Kyoto University but also worked on issues of the civil law (Tanase, Reference Tanase1994, Reference Tanase1999).Footnote 42 Kawashima's arguments on the Japanese legal consciousness have had an enduring impact upon subsequent empirical studies, particularly in the field of civil justice, but as empirical studies in the field of the sociology of law increased, themes and perspectives diversified.
1. The use of law and access to the legal machinery: the continuity of Kawashima's theme
Though Kawashima maintained his normative model of law, he later integrated it into a comprehensive model of law in his search for the distinctively legal.Footnote 43 He emphasised adjudication as the focal part of the distinctively legal. But empirical research on adjudication itself has scarcely been conducted since.Footnote 44 Rather, it was Kawashima's arguments on legal consciousness which foreshadowed the enduring concerns of Japanese scholars with comparing law and practice as well as contrasting Japan and the West.
Kahei Rokumoto applied Kawashima's normative scheme to the legal resolution of civil disputes, and conducted an interview survey in Tokyo in 1968.Footnote 45 He found that the social changes of Japanese society had increased demand for legal services, which was often satisfied by pseudo-lawyers, and that the use of formal legal machinery seemed determined by one's occupational position and particularistic social networks (Rokumoto, Reference Rokumoto1971).
Rokumoto also worked on the empirical aspect of Kawashima's argument. Ever since Kawashima made his argument about Japanese legal consciousness, one of the challenges has been how to measure legal consciousness (Miyazawa, Reference Miyazawa1987). How we could understand the relationship between Kawashima's normative model and empirical model also seemed to remain a question. It is difficult not only to identify what the legal consciousness is, but also to operationalise it in order to measure it empirically. Rokumoto refined the concept of legal consciousness into a narrow sense of legal consciousness, on the one hand, and legal conception, on the other. The former consists of three elements: knowledge about law, attitudes toward law and opinions about law; while legal conception is a framework to perceive law.Footnote 46 Rokumoto explained that the narrow sense of legal consciousness would be the ‘general sense of justice’ in English, more or less the equivalent of KOL (Knowledge and Opinion about Law; Podgorecki, Kaupen, van Houtte, Vinke and Kutchinsky, Reference Podgorecki, Kaupen, Van houtte, Vinke and Kutchinsky1973), while the legal conception would be the ‘idea of law’ or ‘Rechtsvorstellung’ (Rokumoto, Reference Rokumoto1986, p. 196). The point of the distinction between the narrow sense of legal consciousness and legal conception is that the former can change for a rather short period of time, while the latter tends to persist. Rokumoto argued that the Japanese normative conception ‘giri’ was the ordering principle of pre-modern Japanese society and formed the founding element of Japanese legal culture (Rokumoto, Reference Rokumoto1986, pp. 215−16, 221−31, 2004, pp. 29−30).Footnote 47
Though not based on Rokumoto's framework, surveys of opinions and attitudes about the law have been conducted several times since the 1970s (Nihon Bunka Kaigi, 1973, 1982; Kato, Fujimoto et al., Reference Kato, FUJIMOTO and HO ISHIKI KOKUSAI HIKAKU KENKYUKAI2003; Kato and Fujimoto, Reference Kato and Fujimoto2006).Footnote 48 The surveys of Nihon Bunka Kaigi tried to measure characteristics of Japanese legal attitudes and found that respondents tended to have little interest in laws, expect flexible applications of legal norms, and split into punitive and lenient groups. These findings were understood to support the view that Japanese people have attitudes towards the law that are different from the West.Footnote 49 In contrast, Masanobu Kato suspected that anecdotal episodes that Kawashima used as examples to show distinctive Japanese legal attitudes were misleading (Kato, Fujimoto et al., Reference Kato, FUJIMOTO and HO ISHIKI KOKUSAI HIKAKU KENKYUKAI2003, pp. 5−6), and did not find peculiarly Japanese attitudes towards contracts in their international survey results (Kato and Fujimoto, Reference Kato and Fujimoto2006).
The latest survey of Japanese legal attitudes was conducted in 2005 as a part of a large research project, The Civil Justice Research Project. The survey asked about legal attitudes and knowledge as well as social attitudes towards norms and disputes.Footnote 50 It also replicated the survey of Nihon Bunka Kaigi almost thirty years later. They found that Japanese attitudes had not changed significantly except for becoming more punitive (Matsumura et al., Reference Matsumura, Kinoshita, Fujimoto, Yamada, Fujita and Kobayashi2007c). However, full analyses of the survey results are yet to come.
Scholars who studied under Rokumoto or Tanase also addressed the issues Kawashima raised, but findings differed. Ichiro Ozaki, in his research on disputes among residents in eleven condominiums in a residential district of Yokohama, found that disputes tended to deteriorate to emotional exchanges, without much possibility of communication based on reason (Ozaki, Reference Ozaki1996). But Kiyoshi Hasegawa conducted fieldwork on private agreements among residents, also in Yokohama, and found that residents could behave as rational actors who used the law in a reasonable way in their attempts to preserve residential environments (Hasegawa, Reference Hasegawa2006). Yoshitaka Wada, based on his research on disputes between tenants and house owners, argued that the meaning of dispute resolution had been changing in urban society from restoring harmonious relations to handling immediate disputes while letting a conflicting relation continue, and found that people mobilised the law as a strategic weapon to pursue their self-interests (Wada, Reference Wada1982). Masaki Abe conducted field research on how local residents invoked the law for the purpose of environmental protection and found a similar tendency to that found by Wada: people mobilised the law as one of the instruments available to achieve their purposes (Abe, Reference Abe2002).
These four studies were conducted as qualitative research to contribute to both empirical and theoretical understandings of the use of the law, rather than identifying overall patterns of behaviour in Japanese society. Ye, these studies seemed to show that the actual behaviour of Japanese people could be different from and more varied than that which Kawashima described in his empirical arguments. They also seemed to limit the validity of his normative arguments.
It would be fair to note here that Kawashima's empirical arguments of legal consciousness began to be directly and frequently critically assessed by foreign as well as Japanese scholars from the late 1970s. The central issue of the debate was whether the Japanese normative consciousness was the main cause of a small number of litigation cases, though the theme was not always shared and the way of conceptualising the issue was different among scholars (Haley, Reference Haley1978, Reference Haley1991; Oki, Reference Oki1983; Upham, Reference Upham1987; Ramseyer, Reference Ramseyer1990; Tanase, Reference Tanase1990; Wallschaeger, Reference Wallschlaeger and Baum1997; Rokumoto, Reference Rokumoto2004).
The Civil Justice Research Project (2003−2008), directed by Masayuki Murayama, conducted three kinds of nationwide research to cover the whole process of problem-solving behaviour, from experience of a problem to the use of litigation. The first survey, the Disputing Behaviour Survey, consisted of a Consciousness Survey, which was discussed above, and a Behaviour Survey that enquired into problem experience and subsequent behaviour. The second survey, the Advice Seeking Behaviour Survey, focused on how people sought advice from various agencies and how they evaluated it. The samples of these surveys were randomly chosen from among Japanese people from twenty to seventy years old. The third research, the Litigation Behaviour Survey, took data from randomly chosen litigation cases at the district courts and then asked questions of the litigants and their lawyers.Footnote 51
The Disputing Behaviour Survey found little evidence to support the perception that Japanese people experienced few legal problems and that they were reluctant not only to make claims but also to reject claims. Patterns of behaviour in these early stages of problem-solving were surprisingly similar between Japan and the US, and significantly affected by the types of problem that people experienced. These findings raise questions about Kawashima's presumption that legal consciousness defines disputing behaviour and, even if legal consciousness did matter, to what extent and how it mattered concerning behaviour.
The Litigation Behaviour Survey found, contrary to the popular view, that litigants were less satisfied when litigation ended in settlement than when litigation ended in judgment (Foote and Ota, Reference Foote and Ota2010, p. 228).Footnote 52 The survey further obtained interesting findings about gaps in perception between litigants and their lawyers.Footnote 53 Apparently these findings indicate that behaviour more closely related to the formal legal system tends to be shaped by institutional circumstances internal to the formal legal system.
The Civil Justice Research Project was carried out by more than thirty scholars, including some sociologists who did not have legal backgrounds. During the period of this project, and also afterwards, similar and other types of research, such as qualitative interviews and Internet surveys, were also conducted by members of the Project, though only partial initial findings have been published so far (Tamaki, Maeda, Sugino, Minimikata and Murayama, Reference Tamaki, Maeda, Sugino, Minamikata and murayama2009; Maeda, Reference Maeda, Ota, Foote, Hamano and Murayama2009). Such a large-scale research project could be done because general interest in empirical evidence about the function of the civil justice system increased as the Justice System Reform proceeded. The final report of the Justice System Reform Council declared that it was the purpose of the series of reforms planned by the Council that the rule of law would be firmly established in every corner of Japanese society. This was a clear and significant break away from traditional policy since the Meiji era that laws should be learned and followed only as Western techniques.Footnote 54 Around the turn of the century, empirical studies with a policy orientation began to be conducted, though those studies also tried to answer theoretical questions. The Civil Justice Research Project was an example of such a study. Another is the research on how litigants evaluate their experience of litigation. The purpose of the research was in many ways similar to consumer satisfaction research, but it was designed by a legal psychologist, Ikuo Sugawara, to obtain data on theoretical questions of procedural justice (Sugawara, Yamamoto and Sato, Reference Sugawara, Yamamoto and Sato2010).
2 Criminal justice
In the field of criminal justice, Kawashima did not publish an article or book, though he planned to write a chapter in his Japanese book on Japanese legal consciousness. The manuscript was discovered after his death, as we will see later.
It was Ryuichi Hirano who played a significant role in promoting empirical studies of criminal justice. German legal doctrine dominated the field, but Hirano was one of the first legal scholars who studied in the US after World War II. Though he did not conduct any empirical research by himself, he helped the development of sociological jurisprudence in the field of criminal law, paying attention to actual practice in the construction of legal doctrines.Footnote 55 He tried to introduce adversarial procedure into the Japanese criminal justice process, criticising the inquisitorial aspects of the Japanese criminal procedure.Footnote 56 In his later years, he diagnosed the Japanese criminal trial, which he saw as a forum for ascertaining the defendant's guilt rather than deciding whether a defendant was guilty or innocent. He concluded that it would be hopeless unless a drastic reform such as the introduction of a jury or an assessor's system could be implemented (Hirano, Reference Hirano and Hiraba1985). The latter of these was later realised as the Saiban'in Seido, the lay judge system, by the Justice System Reform. Hirano's criticism of the Japanese criminal justice system reflected a common concern of criminal law scholars with how to locate the Japanese system between the pre-war European continental tradition and the post-war American adversarial ideal.
Social scientific research on criminal justice began in the field of police studies. The first research in this field was made by Setsuo Miyazawa, who observed detectives' work and conducted a questionnaire on crime investigation in Sapporo (Miyazawa, Reference Miyazawa1985).Footnote 57 He relied on Amitai Ezioni's theory of organisation and found that detectives' involvement in their work was mainly calculative and that they sought proactive investigation activities, trying to interpret the law for the interest of law enforcement, because the organisational control of achievement evaluation emphasised the clearance of cases.
Masayuki Murayama conducted the second empirical study on the police, observing uniformed police activities at police boxes and in patrol cars in Tokyo (Murayama, Reference Murayama1990). He found that the police put strong emphasis on law enforcement, while their routine work was mostly about the maintenance of order. Because of the discrepancy, cases that were often serious for ordinary people were not handled adequately. The emphasis on law enforcement resulted from the occupational and organisational interests of police officers, based on their self-esteem and desire for promotion.Footnote 58
During the 1970s, when the fieldwork on the police was conducted, a comparative survey on responsibility was also conducted in Detroit in the US and Yokohama in Japan (Hamilton and Sanders, Reference Hamilton and Sanders1992; Ishimura, Tokoro and Nishimura, Reference Ishimura, Tokoro and Nishimura1986). This can be seen as a survey on Japanese normative consciousness in the field of criminal justice, but the design and method of research were much more sophisticated than those of the Japanese legal consciousness studies conducted in the early 1970s, as the former used experimental designs which would be more frequently adopted in later surveys designed by psychologists (Matsumura, Reference Matsumura, Fujimoto, Kinoshita, Yamada, Fujita and Kobayashi2007b) and game theorists (Ota, Reference Ota, Ota, Foote, Hamano and Murayama2009). Hamilton and Sanders found two images of the responsible actor, a stranger in the US and a friend in Japan. They argued that visions of responsibility and justice were shaped by variations in the hierarchy and solidarity of everyday social life, and presented two configurations, equality and low solidarity in the US and authority-subordination and high solidarity in Japan (Hamilton and Sanders, Reference Hamilton and Sanders1992, p. 203).
In the early 1990s, Murayama returned to the same police station to see how changes of policing policy affected routine police activities (Murayama, Reference Murayama, Miyazawa and Kaminaga1996). Murayama also conducted questionnaire surveys and interviews on the criminal defence practice of lawyers and found that most court-appointed counsel assumed the guilt of defendants, following the inquisitorial model of defence rather than the adversarial (Murayama, Reference Murayama, Feeley and Miyazawa2002).
After Kawashima passed away in 1992, a handwritten manuscript of Chapter 6 on ‘Consciousness on Crime and Punishment’ was found among his writings (Kawashima, n.d.).Footnote 59 In this manuscript, Kawashima pointed out two characteristics of the Japanese Penal Code: very broad definitions of crimes and very broad scope of punishment, that is, a wide range of discretion given to judges in deciding what would constitute crime and what punishment to be imposed upon it. These characteristics, Kawashima argued, were in stark contrast to Western penal law that had more detailed definitions of crime and punishment. He considered that Western legal consciousness demanded clear and fixed definitions of crime and also a clear and fixed relationship between crime and punishment, whereas Japanese legal consciousness saw evaluation of crime and punishment as flexible and did not accept a fixed relationship between crime and punishment. According to Kawashima, such contrasting differences in legal consciousness are also reflected in differences in law enforcement practice in Japan and the West: policemen usually condone traffic violations and prosecutors exercise wide discretion in Japan, while policemen enforce the law mechanically in the West.Footnote 60
As this manuscript was found after his death, it did not influence the development of the empirical studies of criminal justice we saw above. But it clearly shows that Kawashima had a strong presumption that a certain legal consciousness was shared among the Japanese and that it must have defined patterns of behaviour also in criminal justice. However, in the manuscript, he also argued that it was important to distinguish the consciousness of the ordinary people and the consciousness and behaviour of those in political power. But he somehow abandoned this line of argument and went on to write on the legal consciousness of the ordinary people.
Retrospectively Miyazawa's and Murayama's studies of the police focused on aspects of the consciousness and behaviour of those in political power. These studies indicated that the occupational and organisational interests of police officers are crucial in explaining police behaviour. Both Miyazawa and Murayama did not notice the cultural tendencies in police behaviour that Kawashima presented as Japanese characteristics. These police studies indicate that the ways in which law enforcement behaviour is institutionalised are much more significant in shaping their behaviour than the consciousness of the ordinary people.
Foote (Reference Foote1992) presented an excellent description of the official view of the exercise of their power, which he characterised as benevolent paternalism. This study shows another aspect of what Kawashima called the consciousness of those in political power. It seems clear that what Kawashima described as Japanese characteristics were those of a patriarchal criminal justice system.Footnote 61
These developments in research in criminal justice indicate complexities of different kinds of consciousness and the limited effects of the ordinary people's consciousness upon official behaviour. As we saw in civil justice, ordinary people and officials of a justice system have different perceptions of the law and the legal system. Future research would address issues of how, to what extent, and in what context legal consciousness matters in shaping official behaviour and the behaviour of ordinary people.
The Saiban'in Saiban, trial by six lay assessors and three professional judges, is an institutional forum where the consciousness of ordinary people meets that of legal professionalsFootnote 62 As lay assessors are prohibited by law from talking, research on Saiban'in Saiban has mainly focused on public attitudes on the new institution. Matsumura et al. conducted a survey before and after the lay judge system started, to examine public attitudes towards the Saiban'in Saiban and criminal justice to see how they changed after the system began to work in 2009 (Matsumura, Kinoshita, Ota and Yamada, Reference Matsumura, Kinoshita, Ota and Yamada2008, Reference Matsumura, Kinoshita, Ota and Yamada2012). Simple descriptive findings have been reported so far.Footnote 63
3 The legal profession
Zensuke Ishimura introduced US-type empirical studies of the legal profession to Japan in the 1960s (Ishimura, Reference Ishimura1966, Reference Ishimura1969). But it was Kahei Rokumoto who conducted the first nationwide survey of Japanese lawyers in 1981. This was a project of the Japan Federation of the Bar Associations (JFBA) to better understand the legal practice and financial situation of Japanese lawyers (Nihon Bengoshi Rengokai, Bengoshi Gyomu Taisaku Iinkai, 1981).Footnote 64 The JFBA has repeated the nationwide survey every ten years since then and the data give us a good overview of how the Japanese legal profession has or has not changed in various aspects of their practice.Footnote 65
The enactment of the law in 1986 that allowed foreign lawyers to practise in JapanFootnote 66 prompted the expansion of Japanese law firms, though their size was still limited by the small population of lawyers.Footnote 67 The Justice System Reform brought a series of changes to expand legal services in Japan. But the reforms were implemented with the grudging consent of the JFBA, as lawyers argued that there would not be enough need for lawyers. In this way, Kawashima's empirical argument overshadowed the reform process from its beginning.
To increase the number of lawyers, professional law schools were established in 2004. The new bar examination began in 2006, which graduates of the new law schools took to become qualified as lawyers. The number of newly registered lawyers, including judges and prosecutors, increased from around 500 during the 1990s to 1,000 in the early 2000s, and 2,000 from 2007. Given the increase of lawyers, law offices began to expand their practices (Hamano, Reference Hamano and Alfred2007), and the largest law office now has about 500 lawyers. At the other end of legal services, the Ministry of Justice established the Japan Legal Support Center in 2006, which provides legal aid both for civil and criminal cases. It also established local offices in every prefecture where free legal advice is given to the indigent.Footnote 68
How much these changes affected the structure of the legal profession can be traced by the results of the JFBA surveys. Although lawyers in Tokyo began to show some changes in their practice, typically, by increasing work on non-dispute cases, there were few significant changes before the turn of the century: about half of Japanese lawyers worked alone; 80 per cent or more of the lawyers worked at offices where fewer than four lawyers worked together; about half of the clients were first-time clients. However, significant changes began to occur in the 2000s. Only 34 per cent of lawyers worked alone in 2010.Footnote 69 The percentage of lawyers who worked at offices with twenty or more lawyers increased from 1 per cent in 2000 to 9 per cent in 2010. The percentage of first-time clients also increased from 52 per cent in 2000 to 60 per cent in 2010. These changes were most salient in Tokyo (Nihon Bengoshi Rengokai, 1991, 2002, 2011a).
Empirical research on legal services and the legal profession has been conducted since significant changes in the legal profession, albeit small at the time, began in the 1990s. Ryo Hamano conducted interview research on legal practice for corporations in Tokyo in the early 1990s and found that there would be a large latent demand for legal services, particularly among smaller companies (Hamano, Reference Hamano1993−94). Murayama et al. conducted nationwide research on legal advice provided by bar associations, in co-operation with the Japan Federation of Bar Associations, in 2007, and found that social distance and concern with the lawyer's fee would deter the public from visiting lawyers (Murayama, Reference Murayama and Sandefur2009, pp. 185−90; Murayama et al., Reference Murayama, Moriya, Ishida, Maeda, Niki and Ono2010). More recently, Miyazawa directed a survey of lawyers, to compare the specialisation and stratification of the legal profession between Japan and the US in 2008, drawing upon the findings of Chicago Lawyers (Heinz and Laumann, Reference Heinz and Laumann1982; Heinz, Nelson, Sandefur and Laumann, Reference Heinz, Nelson, Sandefur and Laumann2005). The survey found that the traditional way of lawyering, with individual and small company clients, was prevalent nationwide, but that, in Tokyo and Osaka, a rather small segment of younger generation lawyers specialised in corporate clients. The survey also found an advancement of female lawyers into the field of corporate business law as well as family law (Miyazawa et al., Reference Miyazawa, Fujimoto, Bushimata, Kaminaga, Ageishi, Ishida and Osaka2010; Miyazawa, Bushimata, Ishida and Ageishi, Reference Miyazawa, Bushimata, Ishida and Ageishi2011; Miyazawa, Bushimata, Fujimoto and Ageishi, Reference Miyazawa, Bushimata, Fujimoto and Ageishi2012). Hamano's and Murayama et al.'s research was concerned with the needs of legal services, starting from the underlying question of why there was a small number of lawyers in Japan. In this sense, these studies shared a concern with the issue Kawashima raised in his arguments on the Japanese legal consciousness.
Conclusion
Academic interest in the sociology of law emerged in Japan among legal scholars who were struggling to make their interpretation of statutory provisions fit the social reality after the adoption of the Western European legal system. Because of this, the sociology of law has been treated as a science for legal scholars to understand social reality, and the subject developed as an empirical social science in Japan. Ehrlich's scheme of how living law grew into legal provisions inspired legal scholars to discover living law in their attempt to show how legal provisions would be interpreted to fit social reality. Though such concerns continued in the post-war period, Kawashima turned the scheme upside-down, emphasising that the new Constitution should become Japan's ‘living law’. Here we can see how the interplay of society and law was viewed in different political conditions. The Justice System Reform provided another opportunity for legal sociologists to observe the effects and limitations of using law to change society. The centrality of empirical studies does not mean that there have been few theoretical studies. Though this paper has focused on empirical studies, there have been plenty of theoretical studies, as Japanese scholars have always been keen on new developments of the sociology of law in foreign countries.Footnote 70 However, what has been considered to be the core part of the sociology of law is empirical research.Footnote 71
The sociology of law was considered as a branch of legal scholarship even before World War II, partly because few scholars in sociology worked on law and legal institutions at that time. Kawashima succeeded in making the sociology of law a branch of legal scholarship. Since he taught the sociology of law, it has been taught to law students in undergraduate and graduate programmes of law at Japanese universities, and an increasing number of universities have included the subject in their law curricula. The sociology of law remains a major subject of law study even after the establishment of the new professional law schools.Footnote 72
As we have shown, the Justice System Reform gave unprecedented opportunities for Japanese legal sociologists to conduct large-scale quantitative research. Until the last decades of the twentieth century a rather limited number of legal sociologists as well as legal psychologists sought to expand the research field of the sociology of law in Japan. Since the Justice System Reform began, however, a much larger number of social scientists with legal backgrounds have engaged in empirical work, further expanding the field of the sociology of law. Before the Justice System Reform, nationwide surveys were rare, but not any more. At the same time, academic research has been increasingly oriented towards policy questions. This is in a sense inevitable. As a large-scale survey needs a large budget, usually provided by public funds, it needs to be useful for the taxpayers. However, research for policy can also be designed to answer theoretical questions. In this sense, we now have plenty of data obtained by surveys on legal problems, civil litigation, the lay judge system and others. But the theoretical implications of the research findings have not been fully analysed or discussed. This will be a significant agenda for us to go forward to the next stage of development in the sociology of law.
There is another new development in the sociology of law in Japan. That is, in the last decade, sociologists without legal backgrounds have finally begun to join empirical research on law and legal institutions. The sociology of law was monopolised by legal scholars for a long time. But barriers surrounding law seem to be becoming lower, and law is less foreign to scholars without legal backgrounds. Participation of pure social scientists in the sociology of law may change basic concerns shared among legal sociologists in Japan. But so far, comparison between legal provisions and practice,Footnote 73 on the one hand, and Japan and the West, on the other, has been the main concern among Japanese legal sociologists. The Justice System Reform encouraged research on the first of these and research of this kind will continue to be conducted. As for the Japan − West comparison, the focus here seems to be changing from the normative to the empirical, as views of the West are becoming more realistic, in other words, more sociological. Yet, research based on this concern will also continue to be done. Being at the crossroads of these two concerns is the distinctive position of the sociology of law in Japan in the global context, as Kawashima's work indicated.