Skip to main content Accessibility help
×
Hostname: page-component-cd9895bd7-dk4vv Total loading time: 0 Render date: 2024-12-26T22:55:36.980Z Has data issue: false hasContentIssue false

11 - Legal Culture and the State in Modern Japan

Continuity and Change

Published online by Cambridge University Press:  07 October 2011

Malcolm M. Feeley
Affiliation:
University of California, Berkeley
Setsuo Miyazawa
Affiliation:
Aoyama Gakuin University Law School
Robert W. Gordon
Affiliation:
Yale University, Connecticut
Morton J. Horwitz
Affiliation:
Harvard University, Massachusetts
Get access

Summary

INTRODUCTION

Thirty years ago Lawrence Friedman introduced the concept of “legal culture,” and it quickly became a major organizing concept in sociolegal studies. Inspired by the work of Willard Hurst, Gabriel Almond, and Sidney Verba, he argued that law is best understood as a system of social forces, one that both produces and responds to these forces. He invited scholars to embrace the concept of “legal culture,” move beyond their traditional concern with doctrine, and instead explore the social forces that give rise to law and legal change. He was particularly interested in forces that give rise to legal change and, in turn, the impact law has on society. It was broadly an appeal for empirical inquiry sources and the effects of the law.

To facilitate systematic inquiry Friedman distinguished between external legal culture and internal legal culture. The former includes those social factors “constantly at work on the law” and those “parts of general culture – customs, opinions, ways of doing and thinking – that bend social forces toward or away from the law.” Internal legal culture includes the distinct culture of legal professionals and allied actors who work within the legal system. According to Friedman, although law is far from an autonomous self-regulating system, nevertheless those few specialists who administer it and possess expert knowledge of it are far from passive actors responding to uncontrollable social forces. In reacting to these forces, they have, within limits, the capacity to shape and refine them.

Type
Chapter
Information
Law, Society, and History
Themes in the Legal Sociology and Legal History of Lawrence M. Friedman
, pp. 169 - 188
Publisher: Cambridge University Press
Print publication year: 2011

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Abe, Hitoshi, Shindo, Muneyuki, and Kawato, Sadafumi (1994). The Government and Politics of Japan. Tokyo: University of Tokyo Press. Translated and with an introduction by James W. White.Google Scholar
Ch'en, Pauyal Heng-Chao (1981). The Formation of the Early Meiji Legal Order. Oxford: Oxford University Press.Google Scholar
Feeley, Malcolm M. and Miyazawa, Setsuo (2007). The State, Civil Society, and the Legal Complex in Modern Japan: Continuity and Change, in Halliday, Terence C., Karpik, Lucien, and Feeley, Malcolm M., eds., Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Change. Oxford: Hart Publishing.Google Scholar
Foote, Daniel H. (1992). The Benevolent Paternalism of Japanese Criminal Justice, 80 Cal. L. Rev. 317.CrossRefGoogle Scholar
Foote, Daniel H.. (2006). The Judiciary and Society: Reconsidering the “Myth” about the Judiciary [Saiban to Shakai: Shiho no “Joshiki” Saiko]. Tokyo: NTT Shuppan. Translated by Masayuki Tamaruya.Google Scholar
Friedman, Lawrence M. (1975). The Legal System. New York: Russell Sage Foundation.Google Scholar
Garon, Sheldon. (2003). From Meiji to Heisei: The State and Civil Society in Japan, in Frank J, Schwartz and Pharr, Susan J., eds., The State of Civil Society in Japan. New York: Cambridge University Press, 42–62.CrossRefGoogle Scholar
Haley, John O. (1991). Authority without Power: Law and the Japanese Paradox. New York: Oxford University Press.Google Scholar
Haley, John O.. (1998). The Spirit of Japanese Law. Athens: University of Georgia Press.Google Scholar
Haley, John O.. (2007). The Japanese Judiciary: Maintaining Integrity, Autonomy and the Public Trust, in Foote, Daniel H., ed., Law in Japan: A Turning Point. Seattle: University of Washington Press.Google Scholar
Halliday, Terence C. and Karpik, Lucien (1997). Politics Matter: A Comparative Theory of Lawyers in the Making of Political Liberalism, in Halliday, Terence C. and Karpik, Lucien, eds., Lawyers and the Rise of Western Political Liberalism. Oxford: Clarendon Press.Google Scholar
Halliday, Terence C., Karpik, Lucien, and Feeley, Malcolm M., eds. (2007). Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Change. Oxford: Hart Publishing.Google Scholar
Hattori, Takaaki (1963). The Legal Profession in Japan: Its Historical Development and Present State, in Taylor von Mehren, Arthur, ed., Law in Japan: The Legal Order in a Changing Society. Cambridge, MA: Harvard University Press, 111–152.Google Scholar
Henderson, Dan Fenno (1965). Conciliation and Japanese Law: Tokugawa and Modern, vol I. Seattle: University of Washington Press.Google Scholar
Hiramatsu, Yoshiro, (1981). Tokugawa Law, 14 Law in Japan1.Google Scholar
Holt, Robert T. and Turner, John E. (1966). The Political Basis of Economic Development: An Exploration in Comparative Political Analysis. Princeton, NJ: D. Van Nostrand Co.Google Scholar
Ichiki, Gotaro and Ohishi, Tetsuo (1999). Current Issues for Legal Aid in Japan: Reform Perspective, in Tribe, Louise G. and Cooper, Jeremy, eds., Educating for Justice around the World: Legal Education, Legal Practice, and the Community. Aldershot: Ashgate.Google Scholar
Johnson, David T. (2009). Early Returns from Japan's New Criminal Trials. Available at http://www.japanfocus.org/-David_T_-Johnson/3212
,Justice System Reform Council (1999). The Points at Issue in the Justice Reform. Available at http://www.kantei.go.jp/foreign/policy/sihou/singikai/991221_e.html
,Justice System Reform Council. (2001). Recommendations of the Justice System Reform Council: For a Justice System to Support Japan in the 21st Century. Available at http://www.kantei.go.jp/foreign/policy/sihou/singikai/990612_e.html
Kidder, Robert L. and Miyazawa, Setsuo (1993). Long Term Strategies in Japanese Environmental Litigation, 18 Law & Inquiry605.CrossRefGoogle Scholar
Kingston, Jeff (2004). Japan's Quiet Transformation: Social Change and Civil Society in the Twenty-First Century. London: Routledge Curzon.Google Scholar
Law, David S. (2009). The Anatomy of a Conservative Court: Judicial Review in Japan, 87 Tex. L. Rev. 1545.Google Scholar
Matsui, Yasuhiro (1990). A Study of Japanese Practicing Attorneys [Nihon Bengoshi Ron]. Tokyo: Nippon Hyoronsha.Google Scholar
McClain, James L. (2002). Japan: A Modern History. New York: W.W. Norton.Google Scholar
Miyazawa, Setsuo (1994). Administrative Control of Japanese Judges, in Lewis, Philip S. C., ed., Law and Technology in the Pacific Community. Boulder: Westview Press.Google Scholar
Miyazawa, Setsuo. (1999). Lawyering for the Underrepresented in the Context of Legal, Social, and National Institutions: The Case of Japan, in Trubek, Louise G. and Cooper, Jeremy, eds., Educating for Justice around the World: Legal Education, Legal Practice, and the Community. Aldershot: Ashgate.Google Scholar
Miyazawa, Setsuo. (2001). The Politics of Judicial Reform in Japan: The Rule of Law at Last?, 2 Asian-Pac. L. & Pol'y J. 89.Google Scholar
Miyazawa, Setsuo. (2002). Summary of and Comments on Recommendations of the Japanese Judicial Reform Council (2001), in Feeley, Malcolm M. and Miyazawa, Setsuo, eds., The Japanese Adversary System in Context. London: Palgrave Macmillan.Google Scholar
Miyazawa, Setsuo. (2007a). The Politics of Judicial Reform in Japan: The Rule of Law at Last?, in Alford, William P., ed., Raising the Bar: The Emerging Legal Profession in East Asia. Cambridge, MA: Harvard University Press.Google Scholar
Miyazawa, Setsuo. (2007b). Law Reform, Lawyers, and Access to Justice, in Paul McAlinn, Gerald, ed., Japanese Business Law. The Netherlands: Kluwer Law.Google Scholar
Miyazawa, Setsuo, Chan, Kay-Wah, and Lee, Ilhyung (2008). The Reform of Legal Education in East Asia, 4 Ann. Rev. L. & Soc. Sci. 333.CrossRefGoogle Scholar
Miyazawa, Setsuo and Otsuka, Hiroshi (2002). Legal Education and the Reproduction of the Elite in Japan, in Deale, Yves and Garth, Bryant, eds., Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy. Ann Arbor: University of Michigan Press.Google Scholar
Murayama, Masayuki (2002). The Role of the Defense Attorney in the Japanese Criminal Process, in Feeley, Malcolm M. and Miyazawa, Setsuo, eds., The Japanese Adversary System in Context. London: Palgrave Macmillan.Google Scholar
O'Brien, David M. and Okoshi, Yasou (1993). To Dream of Dreams: Religious Freedom and Constitutional Politics in Postwar Japan. Honolulu: University of Hawaii Press.Google Scholar
Ooms, Herman (1996). Tokugawa Village Practice: Class, Status, Power, Law. Berkeley: University of California Press.Google Scholar
Oppler, Robert (1976). Legal Reform in Occupied Japan. Princeton, NJ: Princeton University Press.Google Scholar
Ramseyer, J. Mark and Rasmusen, Eric B. (2003). Measuring Judicial Independence: The Political Economy of Judging in Japan. Chicago: University of Chicago Press.CrossRefGoogle Scholar
Shapiro, Martin (1981). Courts: A Comparative and Political Analysis. Chicago: University of Chicago Press.Google Scholar
Tsujinaka, Yutaka (2003). From Developmentalism to Maturity: Japan's Civil Society Organizations in Comparative Perspectives, in Schwartz, Frank J. and Pharr, Susan J., eds., The State of Civil Society in Japan, New York: Cambridge University Press.Google Scholar

Save book to Kindle

To save this book to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×