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"Japanese Modernity Revisited: A Critique of the Theory and Practice of Kawashima’s Sociology of Law" [2010] ELECD 157; in Tanase, Takao; Nottage, Luke; Wolff, Leon (eds), "Community and the Law" (Edward Elgar Publishing, 2010)

Book Title: Community and the Law

Editor(s): Tanase, Takao; Nottage, Luke; Wolff, Leon

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848447851

Section: Chapter 7

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

Number of pages: 16

Extract:

7. Japanese modernity revisited: a
critique of the theory and practice of
Kawashima's sociology of law

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