Path Dependence and the Differentiation of Law in East Asia and Europe – The Case of Japan
Alex Ziegert
University of Sydney - Faculty of Law
Sydney Law School Research Paper No. 11/69
East Asian Law and Society Conference, Korea, September 30-October 1, 2011
Abstract:
This paper examines and compares the development paths of law in East Asia and Europe, with the case of Japan as an example. Such paths are identified as differentiation processes which form the law over time in clearly delineated patterns of legal communication and are set in early history as cultural normative patterns and determine the different effectiveness of modern (contemporary) law in East Asia and Europe.
The paper discusses the different developments of law in East Asia and Europe and argues that they cannot be understood in the terms of the legal history of a particular country (with shifting populations) and comparative law but must be seen, in a sociological perspective, as the result of the regional and ultimately global communication of law (legal system). A comparative analysis guided by sociological theory can demonstrate how law in East Asia, and a fortiori in Japan, is deeply embedded in regional communication and formed by responses to global legal communication.
In the light of such a more complex functional analysis of law the differentiation paths of law in Japan suggest that law there is lagging behind its normative “competitors” such as the political communication, the economic communication and, above all family and/or primary group communication (traditional culture), and that, therefore, social control is stronger in Japan but law is less effective compared to law in (most) European countries. The relative unimportance of law in Japan surfaces historically and until today in often stunted “modernisations” and law reforms, which yield clearly formally modern legal communication (legalism) but no rule of law, and question a sustainable social and legal change.
The paper discusses the different developments of law in East Asia and Europe and argues that they cannot be understood in the terms of the legal history of a particular country (with shifting populations) and comparative law but must be seen, in a sociological perspective, as the result of the regional and ultimately global communication of law (legal system). A comparative analysis guided by sociological theory can demonstrate how law in East Asia, and a fortiori in Japan, is deeply embedded in regional communication and formed by responses to global legal communication.
In the light of such a more complex functional analysis of law the differentiation paths of law in Japan suggest that law there is lagging behind its normative “competitors” such as the political communication, the economic communication and, above all family and/or primary group communication (traditional culture), and that, therefore, social control is stronger in Japan but law is less effective compared to law in (most) European countries. The relative unimportance of law in Japan surfaces historically and until today in often stunted “modernisations” and law reforms, which yield clearly formally modern legal communication (legalism) but no rule of law, and question a sustainable social and legal change.
