Continuities of legal consciousness: professor John Haley's writings on twelve hundred years of Japanese legal history.

• Published date: 22 March 2009
• Author: Levin, Mark A.
• Date: 22 March 2009

History, as nearly no one seems to know, is not merely something to be read. And it does not refer merely, or even principally, to the past. On the contrary, the great force of history comes from the fact that we carry it within us, are unconsciously controlled by it in many ways, and history is literally present in all that we do. It could scarcely be otherwise, since it is to history that we owe our frames of reference, our identities, and our aspirations. (1)

I. HOW WE MAKE SOUP

In the Law and Society in Japan class that I teach each year at the University of Hawai'i, I typically complete the history module of the course curriculum with a short talk about making soup. The story goes something like this:

Imagine that you work in a fine restaurant and that you have been asked to make a pot of soup. You begin by filling a large kettle with water, putting it over the flame, and adding ingredients that will create the basic stock underlying a more complex creation to follow.

Let's look on the pot of soup that we will be making as the complex mix we know to be Japanese law. Thus, we took our large kettle which represents Japanese society and filled it with the clear spring water which represents the ancient indigenous Japanese legal order. As we keep that over the flames of time, the water takes on a Japaneseness from the pot and the water.

The time is AD 660. It's time to make the stock. In the next century, you put into the water a host of distinctly Chinese vegetables and spices. At the outset, the soup's taste is unmistakably Chinese in character as is its appearance when you lift the lid and look into the pot. But its character changes while you simmer the soup over the flames of time for eleven centuries. Certainly there still is an essential Chinese character in flavor and appearance, but the nature of the soup also reflects a Japaneseness that emerges from the pot o f Japanese society and the flavor of the water that fills the pot. While one might call it a Chinese vegetable soup, it differs from the authentic Chinese vegetable soup being served at the venerable Chinese restaurant across the street.

The late nineteenth century arrives and it is time to radically transform our creation. You take down a colander from the shelf and strain the soup into a newer, but still Japanese, pot. Consider what a rich stock you have! Although you've removed the visible structures of Chinese cuisine, needless to say, the centuries of simmering the Chinese vegetables and spices have created a broth profoundly imbued with a Chinese flavor at its core. And so now when you add French celery and carrots, German potatoes and onions, and even a tad bit of Anglo-American corn, the complexity of flavors that will delight your patrons begins to emerge. When we look at the soup, we might no longer call it a Chinese vegetable soup. Rather, it appears to be essentially a continental European dish (with a tiny bit of Anglo-Americanism). Nonetheless, any taster senses what is obvious. This continental European vegetable soup has both a strong underlying flavor of the full-bodied Chinese ingredients that were therefor eleven hundred years and distinctly Japanese characteristics that emerged over time.

Now return your soup to the modern pot of Japanese society and simmer on the flames of time again, topping it off with a bit more clear Japanese spring water. Leave it on the heat for fifty years or so, allowing all of these influences to mix and develop. While the pot and water once again add Japaneseness to the flavor, the newly added "Western" vegetables are imparting new flavors on top of the "Eastern" stock. Certainly, when we arrive at 1925 and your assistant looks to see what you have, it now looks to be continental European vegetable soup. Of course, as chef you know better. The older underlying East Asian tastes are still plainly in the background.

It's the late 1940s. Your guests will be arriving soon, so it's time to add the finishing touches. First, remove some, though not all, of the French and German vegetables, and add more Anglo-American ingredients--corn, wild mushrooms, and a full handful of midwestern constitutional bacon--surely that will add a whole new element to the creation! Turn up the flame to reflect modernity's faster pace and bring everything in the mix up to a full boil. Through the next sixty years, generously sprinkle herbs into the pot--mostly American parsley but a bit of French thyme, German rosemary, and even new varieties of herbs coming out of the worm culture of international law. Keep topping off the soup with pure Japanese water and watch as a Japaneseness is again infused through and through.

At last you are done. We've come to the present and we can enjoy our soup.

So what have we got?

Alas, the restaurant's owner insists on calling it "a kind of European vegetable soup." Granted, to look into the soup one sees mostly the French and German vegetables, though the later-added American vegetables and constitutional bacon are certainly immediately evident. But again you know better. This soup is unique, existing nowhere else. Aged undertones and modern sparkle combine in a remarkable collection of ingredients and flavors, some bitter and some sweet, to provide a special complexity worthy of acclaim by the greatest chefs in the world.

Now taste. Slowly. Carefully. After all, you've worked very hard and earned this chance. Though not immediately apparent to the eye, one senses the powerful Chinese stock developed in eleven hundred years over the flames of time as well as both the ancient and modern Japaneseness that the spring water and our cooking pots have transmitted. These flavors mingle with the modern European and Anglo-American vegetables which predominate the creation, though the just added herbs continue to enliven and change our soup even up until the moment we ladle it into bowls, which is now.

I hope this story of soup has meaning to you. As James Baldwin told us, "history is literally present in all that we do." (2) Understanding how the soup was created should provide you a foundation for understanding its appearance and the ability to knowingly search your taste buds for component flavors. That subtle tasting is the true delight of legal history for the epicurean Japanese law scholar.

II. ELEVEN HUNDRED YEARS OF HISTORY ALIVE IN THE PRESENT

Although the soup metaphor is mine, my pleasure in teaching Japanese law and my understanding of Japanese legal history come from the lessons I've learned from Professor John Owen Haley. I had the good fortune to study Japanese legal history in Professor Haley's Japanese Law course at the University of Washington in the fall semester of 1989. It was precisely then that Professor Haley was finishing the manuscript of Authority Without Power: Law and the Japanese Paradox. (3) And so, after working through the source materials Professor Haley presented in the course text and attending the corresponding lectures, the first four chapters of Authority Without Power were quite familiar to me as a reader. Moreover, they have been a fundamental resource for my subsequent work as a lawyer and law professor.

While other works have presented elements of Japanese legal history, (4) to the best of my knowledge, no other English-language writing has presented the topic in a single coherent presentation from the ancient to the present. (5) Only Haley gives us all the soup's ingredients--Japanese, Chinese, French, German, and Anglo-American. (6) However, the careful historical record is not what ranks these four chapters as a tour de force in Professor Haley's oeuvre. This writing is significant because it explicitly connects the past with the present. It is what allows us today to taste flavors in the soup from faraway distant times, the middle ages, and the recent past. And drawing upon that understanding further helps us in trying to predict the future.

This result is hardly accidental. In fact, Professor Haley shares Baldwin's approach when he states his aims in the first paragraph preceding Chapter 1: "One cannot understand the present without an appreciation of the past and the role of present perceptions of that past. To appreciate the historical dynamics of Japan's legal tradition is vital both to comprehend more fully the present as well as to predict more...