- Public Law, Private Practice: Politics, Profit, and the Legal Profession in Nineteenth-Century Japan by Darryl E. Flaherty
Darryl Flaherty’s new book traces large-scale changes in the meaning and practice of law in Japan from the late seventeenth to the late nineteenth centuries. He focuses primarily on the nineteenth century, attending to the continuities and discontinuities across the 1868 divide. Flaherty’s book joins a growing body of literature written in English that combines legal and social history.1 By mining an impressive array of sources, Flaherty contends that in the Edo period (1603–1868) law was a “tool” of the state, whereas in the first half of the Meiji period (1868–1912) law became “a society-wide framework for understanding and organizing the world” (p. 23).
In the introduction, Flaherty challenges three common assumptions about early modern Japanese legal history: “there was no broad social knowledge of the law; there was no meaningful private legal [End Page 185] practice; and tradition favored harmony over conflict” (p. 7). He suggests, instead, that these understandings are based on the state’s ideals rather than actual practice. For the modern period, Flaherty argues against the view that modern notions of law were simply imported from the West as part of the modernization process. Rather, he demonstrates that legal modernization occurred simultaneously in Japan and in the West in the late nineteenth century as part of the “world historical emergence of professions” (pp. 17–18). Even though Meijiera Japanese individuals formally eschewed the early modern past, modern Japanese understandings and practices were in fact built on that past. In order to trace continuities over time, Flaherty adopts a useful definition of legal practice from historian Dietrich Rueschemeyer: “all specialized work that require[d] knowledge of the ‘language of the state’” (p. 4).2 The terms denoting legal work changed—from kujishi 公事師 to daigennin 代言人, then bengoshi 弁護士—but practitioners shared the ability to speak the state’s language.
Chapter 1 summarizes the complex and evolving state of legal practice in the Edo period. Flaherty combats the presentist assumption that, in the absence of a “right” to be represented by a lawyer, individuals did not engage in legal action. Although the state largely prohibited the dissemination of legal knowledge and discouraged litigiousness, legal practice did expand over time, spurred in part by a growing, increasingly commercialized economy. This chapter centers on “suit inns,” a sanctioned site of legal practice, and “suit solicitors,” unsanctioned legal practitioners. The suit inns—the only places allowed to provide legal advice—formed guilds, which eventually proved indispensable to the increasingly burdened legal machinery of the state. Legal practitioners faced social opprobrium, but they helped spread legal knowledge across society, despite official rules against it. They “promoted the lawsuit as a form of dispute resolution” (p. 33). The picture Flaherty provides here is important background for the literature on peasant protest. For example, it explains how those who lacked literacy might have had access to unsanctioned suit solicitors who helped craft petitions to submit to higher authorities.
Chapter 2 centers on several significant shifts in legal practice that occurred during the 1870s (after the Meiji Restoration), when the state [End Page 186] worked to overturn its unequal treaties with the West. The decade saw an openness to foreign law, especially to French influence via the Napoleonic Code. In 1872, reforms abolished the suit inns and created three new sanctioned categories of legal practice: legal advocates, scriveners, and notaries. Although Meiji legal advocates included many who had served as suit solicitors in the Edo period, new types of professionals joined their ranks. Now that the circulation of legal texts was no longer forbidden, publications about legal matters proliferated. Still, Flaherty reminds us that, during the 1870s, the law was a “moving target” (p. 104). Licensing began in 1876, but enforcement remained far from uniform until the 1880s. To illustrate the fluidity of the period—and how early Meiji legal advocates continued to combine law...