Overcoming Path Dependency of Traditional Values During the Modernization of Japan’s Legal System

Abstract

Comparative legal studies are still dominated by the ideological American view of successful social development only through institutions that correspond to Western standards of the rule of law. Non-Western traditional values and institutions are declared to be the cause of the stagnation of Asian and African societies in the 19th-20th centuries. Yet, the causal link between successful economic development and Western legal institutions is not clearly proven. A functional view of law in a socio-cultural context allows us to look differently at the fact of going or not going to courts in non-Western countries. This article builds on the experience of Japan’s legal modernization to examine different academic approaches to explain why the majority of Japanese refused to go to court before and after the Meiji Restoration of 1868, but changed their behavior at the turn of the 21st century. The first part of the article presents the so-called “cultural thesis” as an explanation of the main obstacle to modernization, the second part introduces alternative explanations (defects of the legal system and the role of political elites), generated by the need to explain the “legal turn” in Japan in the 1990s. The example of Japan is significant for understanding the possible obstacles to reforms of justice according to Western models in non-Western societies, including Russia.