In Defense of “Japanese Law”

Tom Ginsburg^*

 

I.     Scholars and the Development of the Law

II.    Comparative Law as Outlier

III.   Japanese Law: The Periphery of the Periphery is the Center

IV.   Conclusion

 

My perspective is from the world of “Japanese Law,” the term used in the CAPI Japanese Law Colloquium to denote scholars writing on Japan in the English language. In fact this world consists of two rather distinct regions, North America and the antipodean zone.^[1] (Does this make me a propodean? Or merely a podean?) The flavor of scholarship in these two regions is somewhat different. The antipodes seem to be more oriented toward black-letter concerns, whereas in American law schools the emphasis is less on doctrine than on broader theoretical and empirical concerns. One might say that the American “world” is more inclined to the economic analysis so important in American legal scholarship generally, while the antipodes lean toward a modest form of post-modernism.

I want to respond in these comments to the suggestion in Nottage’s paper that Japanese law scholarship in the United States may be overly theoretical in orientation.^[2] I do not contest his characterization of this “world” as devoting relatively little attention to black-letter law and relatively more to theoretical concerns. I do, however, disagree that this should be considered a tendency to “over-theorize.” In these comments I will describe how this theoretical orientation came about and defend it as producing more interesting, influential and therefore important scholarship, with greater potential to shape the broader field of comparative legal studies. I do so from an explicitly American perspective and do not pretend to have mastered the Australian or New Zealand literature.

 

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