| Chapter : | Introduction |
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this reason that Montesquieu is almost universally credited, in both East and West, with being the founding father of the discipline that scholars would eventually come to call “law and society” or “the sociology of law.”
Montesquieu is a good place to start when considering law in Japan. Montesquieuan legal plurality had long been a fact of jurisprudential life in Japan and had grown more salient with the introduction of non-Asian legal ideas after the forceful intervention of the West in the early 1850s. When American commodore Matthew C. Perry visited Japan with his fleet of warships in 1853, Japan soon joined the worldwide rush to throw off old legal practices and adopt some version of the Napoleonic Code. The Meiji leaders who led Japan after the collapse of the Tokugawa bakufu warrior government in the midst of a civil war in 1868 soon invited famed French legal scholar Gustave Boissonade (1825–1910) to Japan, where he spent more than two decades helping legal philosophers like Hozumi Nobushige (1855–1926) write a full civil and criminal code based on French law. In 1873, just five years after the Meiji Restoration had done away with the old Tokugawa order of society and government, Boissonade and his Japanese legal team were trying to build upon that “feudal” legacy (as the Meiji intellectuals deemed it) a solid layer of Western law.1
However, the construction of the new code over the old ways created more problems than it solved. A legal plurality accentuates what an apparent legal monoculture conceals: the history of law is, at its most basic, the history of the search for equity. Because laws written down in books can never anticipate, reflect, or fully guide the endless varieties of interactions and events in the real world, it is an equally endless task to find a meet accord between deference to a legal order and flexibility in the name of justice to the people living under it. Too pedantic an adherence to the generalizations and abstractions of black-letter law—too rigid a fixation on what is written “in the code”—can obviate the function of law by causing and exacerbating social disorientation. At the other extreme lies lawlessness. A middle way is needed—equity—to help