Law and Society in Imperial Japan: Suehiro Izutaro and the Search ...

Restoration and thus the beginning of a new understanding of law in Japan and of Japan’s position within the wider world, this older congeries of laws and traditional practices had begun to give way to the dialectic between law and society renewed in earnest after the period of official legal fiction that had predominated under the Tokugawa administration.

With the fall of the Edo bakufu in the post-Perry tumult and the dispatching of scores of Japanese scouts to the West to learn new modes of government, society, culture, art, and politics came profound changes in every aspect of Japanese life. Perhaps no changes were more jarring than those which irrupted into the life of the law. Law encompassed the full range of philosophical, social, and political implications of Japan’s rapid industrialization and concomitant transition to various non-native modalities. In a country long without a civil law of which to speak, the adoption of a réchauffé French Code Civil meant that life in Japan began to be lived, little by little, “by the book,” and not by the ways of custom. The disjunction between law and society that had always existed in Japan became more difficult to ignore by means of legal fictions.⁷ Society was submitted to a Procrustean stretching and cutting to fit to an alien black-and-white law code which was, in its origin and application, very often the opposite of the lived social experience in Japan. The importation of entirely new legal epistemologies unraveled the law-and-society tissue that had held, however imperfectly, the society of late Tokugawa Japan together.

Law also became a liability for Japan in world diplomacy. The Western powers used Japan’s so-called “feudal” legal system as a pretext for imposing upon Japan unequal treaties, which conceptualized Japan as a junior partner, at best—a perennial pupil rushing to catch up with the more “enlightened” and “progressive” ways of the West. These unequal treaties, the Western powers promised, would be renegotiated as Japan’s mores shifted from legal barbarism to progressive legal enlightenment. And yet, time and again, Japan got to the finish line of legal development only to find that the tape had been moved out of reach, or the game