Litigation in Japan: A New Look at Old Problems
![handle is hein.journals/wildisres10 and id is 125 raw text is: LITIGATION IN JAPAN: A NEW LOOK AT OLD PROBLEMS
JOHN 0. HALEY*
TABLE OF CONTENTS
PROPOSITION O NE ................................................................................ 123
PR OPOSITION TW O ................................................................................ 127
PROPOSITION THREE ............................................................................. 132
PROPOSITION FOUR ............................................................................... 133
PR OPOSITION FIVE ................................................................................ 139
C ON CLUSIO N ......................................................................................... 140
Over the past three decades, a consensus has gradually emerged
regarding adjudication and the role of the courts and legal rules in Japan.
The current thinking redefines the prevailing views of adjudication in
Japan of the early postwar period. Until the 1970s, Japan was widely
regarded as a society in which legal rules, formal legal processes, and
legal actors were marginal. Informal, alternative means to dispute reso-
lution were preferable to litigation. Dan Fenno Henderson's seminal
research on conciliation in Tokugawa and modern Japanese law iden-
tified intentional institutional barriers to formal adjudication and judicial
enforcement of legal rules.1 Takeyoshi Kawashima added an alluring so-
ciological explanation to Henderson's institutional history that was
heavily influenced by Talcott Parsons's notion of a patterned trajectory
of progress from tradition to modernity.2 Kawashima captured wide at-
. John 0. Haley is a Wiley B. Rutledge Professor of Law at Washington University in St.
Louis. This article is based on a speech given at the Annual Meeting of the American Society
of Comparative Law at Willamette University College of Law in Salem, Oregon, on October
5, 2001.
1. DAN FENNO HENDERSON, CONCILIATION AND JAPANESE LAW: TOKUGAWA AND
MODERN (1965). This work was based on Henderson's 1955 Ph.D. dissertation and thus pre-
dates Kawashima's work on dispute resolution in Japan by nearly a decade.
2. KAWASHIMA TAKEYOSHI, NIHONJIN NO HOISHIKI [Japanese legal consciousness]
(1967). This Japanese work is an expanded version of the paper Kawashima wrote in the early
1960s for the conference on Japanese law held at Harvard Law School in 1962. The paper was
published as Takeyoshi Kawashima, Dispute Resolution in Contemporary Japan, in LAW IN
JAPAN: THE LEGAL ORDER IN A CHANGING SOCIETY 41 (Arthur T. von Mehren ed., 1963).](ViewImageLocal?handle=hein.journals/wildisres10&div=13&collection=journals&method=preview&ext=.png&size=3)
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Litigation in Japan: A New Look at Old Problems
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