Japanisches Recht, Japanese Law, and Nihon-hô: Towards New
Transnational Collaboration in Research and Teaching

Luke Nottage*

 

Germany has seen an impressive revival in teaching and research in Japanese law – Japanisches Recht – since the 1980s.^[1] This was underpinned by the rapid expansion of the Japanese economy, and trade and investment links with Germany. Yet the revival in Japanisches Recht scholarship did not concentrate overly on commercial law. Broader coverage, a first important characteristic of this body of knowledge, now allows it to be quite firmly anchored in the academic community and legal profession in Germany. A second strength of this scholarship has been its ability to deal also with “black-letter” Japanese law (kaishaku-ron), at least in some areas of law which have borrowed from Germany and still share similar concepts and structures (private law, administrative law, etc). This tendency has been reinforced as more and more German scholars and practitioners, especially younger ones, have improved their fluency in the Japanese language. Thirdly, however, Japanisches Recht scholarship has remained rather weak in its broader methodological foundations. On the one hand, there remain traces of “legal orientalism”,^[2] a tendency to overly stress the uniqueness or sometimes “Asian” roots of Japanese law and practice.^[3] This is often related to the perception that Japanese law and its legal system remain “pre-modern”, with a deep disjunction between the (“modern”) “law in books” and the (“traditional”) “law in action”. That perception remains deep-rooted despite evidence from Anglo-American socio-legal studies, in particular, that such gaps are to be found even in the advanced industrialised democracies of the West. On the other hand, Japanisches Recht scholarship has been characterised by a reticence to grapple fully with the English language literature on the law in Japan.

The latter, “Japanese law” scholarship has also developed strongly over the last two decades. The United States took an early lead and remains the major “producer” of this scholarship.^[4] But it has been followed by Canada and the Antipodes (especially Australia), and more recently by the United Kingdom. One feature of this scholarship,

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