1 The Social Role of Legal Theory: The diffusion of Kawashima's Theory in Japan,The U.S, and China Wei Guo Hokkaido University Hokkaido,Japan Paper presented at RC12 of XVIII ISA World congress of Sociology

2016/6/282 Outline What we talk about when we talk kawashima’s theory? Japanese stuff, Legal system, Modernization, or others… My research 1. Setting 2. Finding 3. Conclusion Limitations and Implications

2016/6/28 3 The case of China: Bibliographic Data (2014date:1116 papers in CNKI )  Kawashima as Subject papers 2. Japanese legal culture(8); Japanese history(1); Civil law(1)  Kawashima in reference list papers papers is about Japanese and Japanese Law study Catogory 1. Jurisprudence theory and legal history(457);Civil Law(168);Judicial System(123) 2. Others: Liberal education(28);Polity Science(35) Book /paper title Modernization and Law (921,1996-) Others (195)

2016/6/28 4 Background view 1.. The diffusion process of law ü not only legal rules and concepts ü Informal legal discourse mainly theoretical study 2. The study in Japan Conditions of Translation for the Idea of Rights ü Intellectual elites with knowledge of Western politics and law ü The common structural features between the foreign and existing ideas ü Ideational expectation base on the political view of translators ü only translator

2016/6/28 5 Objective of my study  To compare the usage of Kawashima`s work in Japan, The U.S, China.  To examine how and why Kawashima's theory become popular in China User(reader) perspective longitudinal study

2016/6/ Document survey A review of Kawashima`s theory baseline The case of the U.S. previous studies 2. Discourse analyse The case of china Chinese academic papers from 1980 to 2014 collected from CNKI Bibliographic data Subject,Category,reference The trending of topic in papers Tag Cloud(Javascript) – abstract only(921 papers) Research setting

2016/6/287 A time line original Kawashima's work in Japan 1978 In the U.S John Haley "The Myth of the Reluctant Litigant" In the U.S Kawshima's presentation in Harvard University, papers by Kawashima 1994 In China Kawashima(translated) "Modernization and law"

2016/6/28 8 Kawashima`s Work Type A Japanese Modernization Specialized legal thought (Free Will) "The spirit(belief) in legality"(1946) "Law and ethics in Civil society"(1950) Type B Society really Traditional characteristics of Japanese and their influence on law-related behavior Empirical study style (sociology of law) Legal consciousness(Hou Ishiki ) Type C Legal methodology theory scientific Judicial interpretation

2016/6/28 9 The case of the U.S 1960s the boom of Law-Consciousness of the Japanese = unique society (Type B) 1970s~ the rejection of Kawashima`s theory Other institutional factors Culture theory as harm myth in negotiating with Japanese ü American model standard like claim-consciousness, instrumentalism, legalism ü The information of Japan become easy to get and the development of Japanese study.

2016/6/28 10 Finding(1) The trending of Topic ~1995 Japanese context(17) Studies about Japanese modernization,family culture and law Authors with expertise Japanese and Japanese law/history ~2014 Local context(921) Diffusion and Evolution of Topics -- legal modernization in China a few Relevant topic to Japan

Kawashima`s legal consciousness theory is a landmark. Although his work is limited in social structure of Japan in 1960s, the characteristics of legal consciousness he revealed,like the gap between the modern legal institutions of the West and those pre– modernization legal consciousness in Japan, has great influence in Japanese legal academic. In the wake of Kawashima, the framework of legal consciousness is explored in depth.  (Xinhua He, Kawashima and legal culture study in contemporary Japan,1989)  Japanese context

Local context(1)  1995~ papers  Spiritual civilization, Good faith, Rule by law, Market economy, Socialism  papers  Legal consciousness modernization, Market economy, Law-making process, Uncertainty,Judicial interpretation

Local context(2)  2003~ papers  Legal faith, legal modernization,  Education institution, legal transplantation  2006~ papers  Legal faith, right- consciousness,  harmonious society, Humanism( 以人为 本）,dispute resolution 

In some countries of East Asian,The development of civil society is limitied by those nation structures. Kawashima Takeyoshi said: We do not have civil society and modern nation which political institution is based on civil society. Because of such situation, dening individual freedom,even recalling the myth discourse of Medieval age is more easier to be accepted than the consciousness and ethics of modern law by people.As a result,the performance of legal system can not be supportted the personal consciousness, like the process of bottom-up.,but only the Top- down way by power. Changshan ma,Civil society and political nation:the funndation and limitations in rule of law,2001 Local context

Local context (3)  papers  Legal culture,Rule of law, Value judgment, Socialism,  Police enforcement  papers  Legal faith, right- Consciousness, Citizen consciousness,  Private remedy, The core value of Socialism

2016/6/28 16 Finding(3) professional bias  Civil Law(1980-) Adiministrative Law(2000-) Judical system(1999-)

2016/6/28 17 Conclusion and discussion 1. Kawashima's theory (type A-B) as discourse resource in Public sphere  Reader with a low level of interest or knowledge about Japan /Jpanese law  As general theory: common issue also can be found in chinese context  Interpretated as a part of (legal) modernization process,including law-making movement,legal education 2. The impact of Kawashima's theory in China is temporary boom as The U.S?  Lacking the support from legal experts Legal professional become to emphase more specific legal issue in Judical system

18 Thank you for your kind attention!