Title: Living Law in Japan
Description: Scholarship on modern Japanese law tends to focus on the codification of Japan’s legal system in the 1890s and its dramatic overhaul after 1945. This dissertation argues that the interwar years constituted a third point of inflection that transformed Japanese law and laid the foundation for the Japanese welfare state. In the wake of World War I, amid varied and widespread social tumult, a group of influential professors at Tokyo Imperial University undertook to remake civil law as an instrument of social policy. They rejected the Japanese civil code as it was codified in the 1890s, along with the methods of strict interpretation developed by their teachers. In its place they envisioned a new paradigm of legal thinking and practice that they believed could mend tearing social fabric. Their ideas were inspired by a transnational discourse on the centrality of society to law that emerged at the end of the nineteenth century. In Japan they coalesced into a new and nationally distinct legal movement that came to be called “social jurisprudence” (shakai hōgaku).

There were many elements, but the most notable were an emphasis on the indeterminacy of legal interpretation and a preference for informal conflict resolution, as opposed to the formal procedures of the modern judiciary. The 1923 Kanto Earthquake afforded an opportunity to put these ideas into practice on a large scale. In these years two of the most notable features of modern Japanese law were established: reliance on judicial precedents rather than simply the statutory law, and the prevalence of informal mediation. With these tools, the social jurist strove to reform urban housing, rural tenancy, labor relations, and family law. From the 1930s they took their ideas to the Chinese mainland, where they were deployed in the puppet state Manchukuo in an attempt to pacify the local population by harnessing “Asian” customs. Never did these efforts hit their intended mark, yet they gave rise to new legislation, legal practices, and frames for thinking about society, history and gender that have endured into the present.