RIGHTS, MODERNIZATION, AND THE “UNIQUENESS” OF THE JAPANESE LEGAL SYSTEM

Since the postwar period, the study of the Japanese legal system has been locked into a narrow paradigm. Among the central features of that paradigm are: a view of Japanese law as encumbered by elements of the “traditional” legal system; the idea that the Japanese legal system is changing, and developing in the direction of a “modern” system; an assumption that the Japanese legal system is unique; and a belief that fundamental characteristics of Japanese culture have shaped legal behavior. There have been challenges to this paradigm, such as those asserting the influence of institutional constraints on legal behavior, and rarely have all elements of the paradigm been evident in any one scholar or publication. As an overall orientation to the study of law in Japan, however, the paradigm has exerted a steady influence. Within it, the answer to almost every question about law in Japan contains a familiar refrain – in Japan, there is a lack of rights assertion and a reluctance to go to court.

Several factors have helped to sustain the accepted paradigm that rights assertion, and resort to the law more generally, are particularly infrequent in Japan. Modernization theory has contributed to the paradigm by providing a framework within which Japanese law can be compared and contrasted to Western legal systems, and a perspective for thinking about how legal systems change.