Public Law, Private Practice: Politics, Profit, and the Legal Profession in Nineteenth-Century Japan by Darryl E. Flaherty (review)

Public Law, Private Practice is an impressive work that greatly advances knowledge about Japan’s legal profession and its role in Japanese society and history. The author, Darryl E. Flaherty, associate professor of history at the University of Delaware, has conducted a vast amount of research, in both Japanese- and English-language sources from the Meiji era to the present, including archival materials housed at numerous institutions, biographies and autobiographies of major figures, and comparative works on the profession in Europe and the United States. From this comprehensive research, he has constructed a rich account of the historical development of the legal profession in Japan. As the subtitle implies, Flaherty’s primary focus is on the nineteenth century. His account commences much earlier, though, from early in the Edo era; and many themes continue to resonate today.

Late in chapter 1, Flaherty quotes an 1889 letter from John Henry Wig-more to the then-president of the Johns Hopkins University: “I believe you could render a substantial service to New Japan by Historical investigations into the social and legal History of Old Japan” (p. 85). Wigmore is well known to generations of U.S. lawyers as the author of a leading treatise on the law of evidence, and he served for nearly three decades as dean of Northwestern University School of Law. He began his teaching career in 1889 as professor of Anglo-American law at Keio University and wrote the above letter that year. Wigmore himself organized a major project to compile and study law and legal precedents from the Edo era,¹ and he devoted a chapter to Japanese legal history in his 1928 three-volume work, A Panorama of the World’s Legal Systems (West Publishing Company).

Relatively few others have taken up Wigmore’s call. Noteworthy English-language sources that address civil justice in the Edo era include works by Dan Fenno Henderson, John Owen Haley, Carl Steenstrup, Herman Ooms, and Frank Upham.² Their works include some discussion of legal practice in the Edo era, but that is not their primary focus. Few works in English have addressed the historical development of the Japanese legal profession since the Meiji era, either. The two most notable works—by Richard Rabinowitz and Takaaki Hattori—appeared over 50 years ago.³

Notably, these works all tend to focus either on the pre-Meiji situation or later developments in isolation, without examining the transition in any detail. Even for materials in Japanese, the situation is similar. While there are far more works in Japanese than in English exploring specific aspects of the legal profession and its history, I am not aware of any comprehensive study of the development of the legal profession that traces its historical roots from the Edo era through the various permutations of the Meiji era. Indeed, given Flaherty’s extensive research, if such a study existed, one could be confident he would have cited and relied on it.

This book addresses that gap in existing scholarship by tracing the legal profession in Japan from Edo-era antecedents up through the close of the nineteenth century. In chapter 1, Flaherty provides an extensive account, rich in detail, of legal practice in the Edo era. In the subsequent four chapters, he examines several stages in the development of the legal profession during the Meiji era. Flaherty has enriched this study by incorporating vignettes from the lives of leading figures in the history of the legal profession—including the so-called “first woman lawyer,” Sono Tel (or Teruko) and the first Japanese registered as a British barrister, Hoshi Tōru—and by including rather detailed accounts of the establishment and activities of various organizations and associations. Moreover, by interspersing comparative references throughout the book, Flaherty provides valuable reminders that the pattern of development of the legal profession in Japan bears numerous...