「日本人の法意識」研究概観

法観念を中心として

抄録

This paper attempts to give a brief overview of the works of the Japanese legal scientists concerning the "Law-consciousness of the Japanese", a subject which has occupied and is still occupying the center of attention of the Japanese lawyers, more or less empirically oriented. The author starts by making distinction between "the general sense of justice" component and "the idea of law" component of the term law-consciousness, and concentrates on the latter for the rest of the paper. According to the author, the theme of law-consciousness of the Japanese appeared first in the Japanese intellectual community under the term of the law abiding spirit which was deemed by Professor Kawashima to be lacking among the Japanese populace of the war time, and after the war the theme took a firm root as a respect for law and the modern legal system as it was regarded as a prerequisite for democratic social changes. A model of modern law-consciousnees was drawn from the analysis of the basic principles of private law of the continental West and used as a standard to measure the actual Japanese attitudes toward law revealed in their daily conducts, regarding family relations, for instance. Then the concept was applied to the litigious behaviour of the Japanese who lacked, according to Kawashima, the idea that each individual is equal and entitled to press for the realisation of his own rights guaranteed by law. Later this theory came to be criticized for its one-sidedness, and other factors than law-consciousness such as the defects on the side of legal institutions, were put forward to explain the infrequent use of courts and lawyers in the cases of dispute. As to the transformation of law-consciousness of the Japanese, the author points to the recent discussions, lively conducted not only by law professors, but also by people involved with the legal practice such as business contracts both national and international, which, contrary to Kawashima's prediction, increasingly stress the persistence of the peculiarly Japanese ways of handling legal affairs. The paper is closed with a call for continuation of the discussion more on the base of empirical material and capable of cumulative theoretical advancement.