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

applicability and immutability at the level of basic theory; it reserves flexibility when dealing with particulars.”¹³ Tanaka was a critic of the neo-Kantianism, as he saw it, of Suehiro and his Ehrlichian turn to custom as a form of equity. For Tanaka, equity was not a method, but a working-out of higher principles of justice.¹⁴ Like Tanaka, Suehiro understood people to be the subjects of the law. But whereas Tanaka saw people as human persons, Suehiro said that humans were the “units” (tan’isha) of the law.¹⁵ Unlike Tanaka, Suehiro grounded his conception of equity in the procedural parameters of trials and not in the natural law.¹⁶ Must equity have guidance, or is it an art best practiced freehand?

In his student days, Suehiro was fond of sports, and was especially good at kendō, or Japanese fencing. He did not have a strategy for attacking or defending. He just did what he felt was best in the moment, as the spirit moved him. As in sport so in life. He was often criticized for having no logical consistency in his legal philosophy, for never having formulated a system of thought, simply writing down what came into his head. At least one scholar has compared Suehiro’s essays and books to a series of fencing bouts, and Kainō Michitaka, one of Suehiro’s closest and oldest protégés, assessed his teacher in similar fashion.¹⁷ Suehiro criticized his father, Daishin’in justice Suehiro Ganseki, for “having some particular judgment come into his mind during a court case, and then afterwards making that sound logical by finding some precedent or law to fit it.”¹⁸ But this was Suehiro Izutarō’s way, too. Is equity a feeling, a sense, an intuition? Or is it a matter of logic, principle, and methodological application? By the same token, can one have equity under empire—equity which takes on the coloring of the surrounding political circumstances—or just equity as empirical data, rounded off into a decision by a judge using legal fictions to work around the tight spots of the law? Was Suehiro’s call to render “whole-person” decisions in court guidance enough for apolitical equity, or did the ambiguity of the idea open Suehiro’s law-and-society movement up to being swayed by forces beyond its control?¹⁹