Gender and Law Scholarship in the Law in Japan Field: Comments for Harvard Law School’s East Asian Studies Conference on Japanese Law, Sept. 28–29, 2018

Law matters relating to sex, gender, and related topics are of great importance for any academic interest in understanding Japanese law abroad. Yet these topics appear rather infrequently in published legal scholarship about law and Japan. Moreover, gender-oriented scholarship in our Japanese law field to date has been mainly siloed into disparate components relating to the workplace and the family. Subject areas that have attracted mass media attention such as the imperial succession and issues concerning sexual minorities have been mostly absent from review. As well, there’s been hardly any consideration of the “big picture” overall concerning gendered issues in Japan. In a companion piece on https://ssrn.com/abstract=3104875, Kallista Hiraoka and I aim to present a complete organized listing of existing published academic law scholarship in English relating to gender and the law in Japan. We’ve compiled a list of approximately 140 publications including monographs, book chapters, textbook materials, and journal articles since Professor Arthur Taylor von Mehren’s important 1961 conference at Harvard Law School. In this piece, I analyze the publication list as data and find that nearly one half pertain to women in the workplace and approximately one quarter pertain to marriage, divorce, child custody, and related areas of family law. Entire fields of study, such as women in legal education, women in the law professions, or the criminal victimization of women have not been or have been barely considered. I next present some preliminary considerations regarding gaps in our field of study. I revisit the origins of the gender equality provisions in Japan’s constitution and suggest a new telling of a commonly presented history. Next, I look at Japan’s first women lawyers and judges to explore the dynamics around their pioneer status in Japan’s pre- and postwar legal systems. Third, while I expect most of us know of the dynamics in the growing number of lawyers in Japan, including the growing number of women lawyers in Japan, I chart the year-to-year differential in the number of women in the bar as a percent of the number of lawyers overall to reveal that the growth of the number of women in the Japanese bar as a percent of the whole has nearly ceased. After a booming 15 years of growth between 1997 and 2012, the pace has plummeted to approximately 1/10 of one percent per year, which represents roughly the same level of stagnation in the Japanese bar gender balance as in the 1950’s. In other words, a glass ceiling in Japan’s bar gender balance appears to be nearly fixed just below 18.5% of the total. This datum deserves attention. From the time of the Allied Occupation of Japan onwards, gender and law comparisons have been a matter of many interventions in discourse about Japan by Japanese and non-Japanese observers. There is reason to tread cautiously. Nevertheless, this field is crucial; I hope this work will help to encourage and enable additional research and understandings. A companion piece, a bibliography of works on this subject, compiled by by Levin and Hiraoka, has also been posted to SSRN as a working paper. It can be found at https://ssrn.com/abstract=3104875. Posting to SSRN is meant as an intermediate step towards formal publication in one or more academic law journals. Accordingly, we welcome feedback or advice of missing items. We also hope this compilation will inspire more scholars to look into and continue the research into how gender has operated and continues to operate in the law in Japan.