Authority Without Power: Law and the Japanese Paradox.

AuthorFujikura, Koichiro

I

In Authority Without Power,(1) Professor John Haley(2) attempts to explain significant Japanese paradoxes:

Japan is notable as a society with both extraordinary institutional continuity along with institutional change; of cohesion with conflict, hierarchy with equality, cooperation with competition, and above all else a manifest prevalence of community control with an equally strong impulse toward independence and autonomy. ... It is a nation where political rule appears strong but also weak; governance centralized but also diffused; the individual subservient but also achieving; the social order closed but also open. [p. 4]

Professor Haley develops a thesis that Japan's society and its legal system is one of "authority without power" and "law without sanctions." His pairing of these words, usually understood as almost synonymous in the Western legal and political lexicon, serves as the key for his analysis of the Japanese legal system. The author has succeeded in constructing a theoretical package to explain those paradoxes of Japanese law and society often puzzling to Western observers, and in doing so he presents a plausible overall picture of the Japanese legal system. To provide a general account and analysis of any legal system is a formidable intellectual undertaking, but Haley's picture of Japan's legal system should be quite persuasive to Western readers, and it is certainly fascinating to Japanese readers.

Professor Haley argues that, by the mid-nineteenth century, Japanese society had well-established institutions and processes for three basic paradigms of societal control: "[first] the administrative processes of a centralized bureaucratic state, [second] the adjudicatory institutions for a system of judicial governance, and [third] arrangements of indirect governance based predominantly on community-based consensual or contractual patterns of social control exemplified by the rural mura or village" (p. 18).

Some legal historians are certain to dispute the relevance of Haley's paradigms and interpretations. Nevertheless, many Japanese legal scholars may find his bold attempt revealing, for they generally perceive Japan's contemporary law and legal institutions as the product of a wholesale adoption of Western legal systems since the Meiji Restoration, a time when Japan apparently made a clean break from its own legal traditions and institutions.(3) Haley's paradigms may also be revealing for those who still labor under the popular assumption in the United States that no such thing as "law" exists in Japan.

Haley depicts three paradigms that effectively challenge these elementary assumptions about Japanese law and society. His contribution and the book's strength can be found in the first part, in which he provides, using bold strokes and drawing from existing works, a concise description of Japanese legal history from the seventh century on and develops his dynamic for understanding Japanese law and society.(4) He is less successful, however, in applying this dynamic to his carefully chosen contemporary subject areas in the book's second part.(5) His paradigms, apparently serving their intended purposes, often prove troublesome and unsatisfactory in analyzing the role of law in contemporary Japanese society. In concrete cases, Haley's paradigms seem to prove too much or too little and seem to invoke more than dispel untested assumptions.

Before discussing the three interrelated paradigms and the problems they pose in their application, one must first examine some critical principles that the reader must apply to assess a book of this nature - a book in which the author, from a comparative perspective, tries to construct a general theory for understanding a foreign legal culture within the context of the society's history, culture, and ideology.

First, any effort to build an overarching, general theoretical framework to explain another society and its law, especially Japan, though inspiring and stimulating, is suspect and bound to produce distortions and myths. In developing paradigms in the historical context, one must always ask critical questions such as what the connection is between history and contemporary Japan and how direct an influence one can see, for example, between a pre-world War I Japanese village and a modem Japanese village. Without establishing a reasonable connection between historical facts and contemporary problems, any general theory tends to produce loose and slippery interpretations.

Second, one faces an evident risk in relying on excessive contrasts and overstatements in any two-sided comparison, especially between Japan and the United States. Any finding of inscrutable nature in one society may reflect extremity in the other. Haley, aware of this risk, tries to broaden his comparisons by referring to Germany, the United Kingdom, and Korea as much as possible.(6) Despite the author's caveat,(7) however, the book overemphasizes distinctions and peculiarities, rather than similarities and common elements, of Japanese law and legal institutions that reflect opposite characteristics from those found in American law and legal institutions.

Third, the author often relies heavily upon cultural explanations. Granted that "legal systems are themselves self-defining, cultural belief systems" (p. 4) and cultural explanations are useful in developing a general understanding of the Japanese legal system, cultural explanations are difficult to substantiate or disprove. Analyzing cultural differences in terms of rational human behavior and the various institutional constraints affecting individual decisionmaking may prove more productive.

According to Haley, the historical development of Japan's legal system can be divided into two broadly defined periods. "Each features an abrupt infusion of foreign ideas and institutions followed by a gradual process of indigenous adaptation" (p. 17). The first period, during which Japan developed what the author calls an "ambivalent tradition" (p. 17), is "characterized by the tensions between the ideas and institutions derived from early imperial Chinese law and those forged by native Japanese political and social forces" (p. 17). The second period is characterized as a period of [r]eception, adaptation, and containment of Western law" (p. 18), starting with the French and the German codes and legal institutions soon after the Meiji Restoration in 1868. During this second period, "Japan experienced the institutional transformation of its legal order into a modern, predominately German-derivative, civil law system as well as the adaptation and ultimate containment of Western legal institutions during the first half of this century ..." (p. 18). The author maintains that [t]he process continued in postwar Japan, commencing with military occupation and the imposition of American-inspired constitutional and regulatory reforms" (p. 18).

Haley develops his three paradigms against the backdrop of these two broadly defined periods. The first paradigm is that of the administrative state with pervasive authority but with little coercive power, in which law was public, serving as an instrument of the state, and devoid of moral authority (pp. 19-32). Japan adopted this administrative state tradition from China in its first reception of foreign law during the seventh century. Japan borrowed both the concept of the state as a political unit, with authority to rule vested in an imperial institution, and methods of centralized bureaucratic governance. The imperial rulers wielded enormous authority, but this authority did not carry a consummate degree of state power; state authority tended to be much broader than state coercive power. Also, in the Chinese tradition, law and morality were essentially separated; laws were not, in and of themselves, moral commands. Private law, in the Western sense, was not developed.

Borrowing selectively from this Chinese system, Japan instituted land tenure, taxation, penal codes, and other administrative regulations and procedures. Moreover, Japan began to develop indigenous legal institutions. Beginning with the Kamakura bakufu (literally "tent government") in the thirteenth century and lasting throughout the Tokugawa bakufu in the seventeenth and eighteenth centuries, Japan established an effective and efficient administrative state with well-developed institutional structures and a sophisticated bureaucratic government.

The second paradigm is that of the adjudicatory state, or judicial governance, which began with institutions developed to resolve disputes, particularly among warrior-vassals, and developed into a means by which the Kamakura bakufu and later Shogunates ruled (pp. 33-49). During the feudal period, the "idea of the supremacy of law as command had begun to take hold," and [a]dherence to codified prescriptions and procedures of the past and basic elements of procedural fairness had become integral to legitimate rule" (p. 49). Codified procedural rules distinguished between adjudication initiated by petition and persecutions brought by authorities. Thus, civil actions as opposed to criminal actions were recognized for the first time.

With the development of an adjudicatory mechanism, Japanese law and legal institutions began to take on a Western look. Japan's experience resembled that of other Western European nations where adjudicatory institutions developed after the collapse of a centralized political power - in the Western context, the Roman Empire, in the case of Japan, imperial rule from Kyoto. In Europe, these institutions developed within the Roman law tradition, in which legal systems recognized private civil law. In Japan...

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