East, east, and west: Comparative law and the historical processes of legal interaction in China and Japan

Abstract

As Western notions of law formed the basis of a globally shared common legal language, the language of comparative law has become inevitably Western. In studying historical societies that did not share this language, analyses using this language will always risk anachronisms due to the inherent assumptions, be they the meanings given to particular terms, or the manner in which different areas of law are categorized and distinguished from each other. One way to avoid such anachronisms would be to attempt the formulation of a different concept of law that is neutral to Western and non-Western legal traditions. This, however, would move the analysis away from discussions in other areas of legal studies conducted in the aforementioned common legal language, which in turn would limit the significance comparative law might have for these discussions. In looking at the historical processes of legal modernization in China and Japan, this Article discusses how one might manage the risk of anachronism in writing a legal history of non-Western societies, while also retaining a link with a wider range of legal studies. After Part I considers some of the theoretical problems of studying Chinese and Japanese society as a project in comparative law, Part II will look at the debates on legal reform in China and Japan in the late nineteenth and early twentieth centuries. While these debates included serious discussions on incorporating traditional aspects of Chinese or Japanese society in the newly formed Western-style legal system, the discussions themselves were conducted in an essentially Westernized language, which identified the traditions of Japanese and Chinese as "customs," a legal notion newly introduced in the course of modernization. While looking at certain traditional practices and institutions as "custom" might have been an anachronism, the extent and significance of this anachronism can be assessed through a study of the process of interaction whereby this viewpoint came to be adopted. Part III of this Article suggests an approach to studying the traditional Chinese property regime, also starting from a study of the historical process of interaction between Western colonial law and local society in China. Using an analysis of this interaction as a starting point, it discusses how relevant aspects of Chinese society and their interconnections might be identified, opening up possibilities for comparisons not limited to East-West comparisons, and it also contributes to a more general legal discussion on family, property, and state formation.