Dōri – Jōri – Jōshiki

Außerrechtliche Rechtsquellen in der Edo-Zeit und danach

Abstract

The contribution considers three concepts of Japanese legal culture: “dōri”, “jōri”, and “jōshiki”. After defining these notions as “reason of the path”, “natural reason”, and “common sense” respectively, their origin is traced and the question discussed whether these concepts are sources of Japanese law. A connection exists between the first two notions: “Dōri”, originating in the eighth century and a common equity criterion in the Edo era, has formed the basis of “jōri”, which became prominent during the Meiji era. The term “jōshiki”, which has been used in legal doctrine more recently, literally confirms the meaning of common sense already attributed to “dōri” during the Kamakura era. While none of these notions had been codified in the past, “jōri” and “jōshiki”, and recently “shakai tsūnen” (the common opinion in society), as a synonym of “jōri”, have been used to justify the reasoning in case decisions, and also by legal academics. Furthermore, under the recent reform of the law of obligations, “shakai tsūnen” has been introduced into nine main provisions of the Japanese Civil Code. Consequently, the natural reason of “jōri” in the form of “the common opinion in Japanese society” will have to be considered in Japanese positive law in the future. Then and now, in the application of Japanese law, equitable justice seems to be preferred to equal justice, and the “concrete appropriateness” of a decision to be considered more important than “abstract legal certainty”. In other words, legalism was not in the past, and is not at present a determining feature of Japanese legal culture.