L'Orientalisme juridique et droit japonais

In the legal field, the debate on Orientalism is not yet outdated. In Europe, especially in Italy, legal literature still views Japan from an Orientalist perspective. Japanese law has been considered of minor importance for centuries. For historical reasons, when foreigners first came in contact with Japan, Japanese law had not yet developed legal principles similar to those in Europe, derived from Roman law, and had not issued a homogeneous corpus of statutory law which regulated all areas of law. All this caused the widespread assumption that Japan did not have any laws or was culturally resistant to creating a “developed” legal system. The most common Orientalist arguments against Japanese law are based on the notion of “civilization”, “identity”, “culture”, and “ethnicity”, concepts drawn from anthropology and sociology and widely discussed, but whose meaning varies from one author to the next. The legal concept of Japan and the Japanese has been called “unique” and conditioned by the “culture” and by Confucian philosophy. By analysing the writings of various authors, both Japanese and foreign, we can see how this line of thought has been constant. In Italy, the study of Japanese law in the academic world has been relegated to a marginal role. The main reason is that even comparative law is considered a minor matter if compared to those defined as “fundamental” in legal study programs. Obviously this is reflected in research, because only a small proportion of graduate students choose this field of research and among them almost no one devotes him- or herself to Japanese law. In addition, no law department in Italy offers Japanese language courses; therefore, scholars must usually rely solely on translations of texts and articles in English, leaving them with only a partial view of the topic. In conclusion, we can say that there is still an Orientalist attitude in the legal literature, independent of the country of origin. In dealing with Asian legal systems, it would be desirable to maintain a neutral point of view, avoiding the use of the terms “East” and “West” and not attempting to explain or bend foreign legal categories according to culture-based approaches of dubious scientific value. If we fail to find a permanent solution to this problem, legal research will continue to be damaged.