HAYASHI Makiko

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Public Law, Private Practice: Politics,Profit, and the Legal Profession inNineteenth-Century Japan, by Darryl E.Flaherty.著者 HAYASHI Makikojournal orpublication titleJapan review : Journal of the InternationalResearch Center for Japanese Studiesvolume 27page range 262-265year 2014-11-27URL http://doi.org/10.15055/00007164Book Reviews262     Japan Review 27 (2014)While the history of lawyers in Japan has attracted wide attention since the 1950s, very little scholarship has been published in languages other than Japanese. Professor Flaherty’s work is ground-breaking as it contributes to the subject in at least four significant respects. First, it clearly outlines the broad history of legal practitioners in Japan spanning almost 300 years; second, it presents new findings which have previously been unknown to Japanese scholars; third, it makes successful use of original nineteenth century legal periodicals; and, finally, it sheds light on the activities of important Japanese lawyers such as Hoshi Tōru for the first time in English. Let me address each of these points in order here. Flaherty’s book offers readers an overarching description of both legal practices and the activities of legal practitioners in Japan from the 1600s (the Edo era) to the 1890s (the middle of the Meiji era). Interestingly, there is no precedent for this sort of broad coverage in Japanese. From a legal and historical perspective, Flaherty’s work builds on earlier, more limited studies to make a significant contribution to the overall understanding of Japanese legal practice prior to the establishment of the Kujigata osadamegaki, which is a judicial code compiled by Shogun Yoshimune in 1742 (pp. 40–51). Although Dan Fenno Henderson published a monumental work on Edo era judicial systems, the activities of legal practitioners were not sufficiently clarified there. Flaherty’s book thus makes an important contribution to this field.Professor Flaherty also deserves credit for his novel insights into the field of legal history. For example, his work introduces Sono Tel, a female legal practitioner active during the transition from the Edo to the Meiji eras, who was previously quite unknown to Japanese scholars. In addition, he details the activities of legal and political study groups in early Meiji. Among these organizations, Hokushūsha, one of the earliest associations of legal advocates and scriveners (known in Japanese as daisho, daigen’nin), played a particularly important role in the popular rights movement. Flaherty insightfully explores the group’s activities and uses a wide variety of historical materials in his introduction of the president of the association, Shimamoto Nakamichi.Flaherty’s extensive investigation of legal periodicals from the early and middle Meiji period is also worth noting. He has furnished scholars not only with a valuable historical list of legal journals published but also an in-depth analysis of their contents. This is especially significant because these journals have not been the subject of thorough-Public Law, Private Practice:Politics, Profit, and the Legal Professionin Nineteenth-Century JapanDarryl E. FlahertyHarvard University Asia Center, 2013334 pages. ISBN 9780674066779Book ReviewPublic Law, Private PracticeJapan Review 27 (2014)     263going research until this time.1 After the Satsuma Rebellion in 1877, former samurai legal advocates turned to the political arena to express their opposition to the Meiji government. The legal debates of these men are recorded in the journals of the period, and their practical significance goes without saying. For example, the legal journal Hōritsu zasshi introduced contemporary legal discourse concerning public meeting regulations. It should be noted, however, that Flaherty’s arguments in this area merit further embellishment. He states, for example, that “the impact of articles in legal journals extended beyond scholarship, officialdom, and the court” (p. 179). Given that most of these legal periodicals were published for less than a year, more information on how they were circulated is necessary to render his argument persuasive.The most outstanding feature of this book is its focus on the specific activities of Meiji lawyers. One lawyer to whom Professor Flaherty devotes much space is Hoshi Tōru, who was called to the bar in England and engaged in legal practice in Japan from the late 1870s.2 It is well known among English readers that Hoshi later became a prominent politician in the Japanese Liberal Party (Jiyūtō). However, his activities as a practicing lawyer have received very little attention thus far. Flaherty’s description of the transformation of former samurai into legal advocates with strong inclinations toward democratic politics is also persuasive. He analyses brilliantly the relationship between legal advocates, liberal democracy, and their representation in court cases related to the popular rights movement.Among the questions which occurred to this reviewer while reading this fine book were: What, after all, is a lawyer? How can we define a lawyer and other members of the legal profession in an historical context? As Professor Flaherty notes, legal practitioners existed in various forms throughout Japanese history, and those in the Edo and early Meiji periods resembled legal practitioners in early modern Europe in terms of the considerable overlap between individuals engaged in both legal practice and government business (pp. 33–35). Building on prior scholarship, Flaherty outlines this relationship. He explains for example how inn owners and suit solicitors, approved by the bakufu government in pre-Meiji Japan, gave legal advice concerning the laws and litigation in support of litigants (clients), drafted legal documents on their behalf, and negotiated settlements out of court. In addition, he notes how such “quasi lawyers” accompanied their clients to the court buildings, even though they were not allowed to represent them directly. According to Sakamoto 2007, however, suit inn owners were not used when commoners living inside Edo brought suit. In those cases, only town officials were expected to support the parties.3 It seems that further exploration into the role of suit inns (or kujiyado) in the Edo era judicial system is required.This reviewer also wonders whether Meiji legal advocates were in fact the successors of the suit-inn owners, suit solicitors and legal practitioners, such as Sono Tel. Flaherty stresses the difference in social class between legal advocates recruited from the former samurai class and suit inn owners or suit solicitors who were generally commoners. When the former samurai legal advocates concentrated on political activities between 1874 and 1880, litigants presumably had no choice but to deal with the legal practitioners of the Meiji era 1 See Takahashi 2011.2 The f irst Japanese barrister was not Hoshi Tōru, but Yoshiyama Gorōnosuke [Fukubara Yoshimichi (Yoshiyama)] who was called to the bar at Lincoln’s Inn on 6 June 1874. See Hori 2012 and Fujita 2013.3 See also Yoshida 2004 and 2005.264     Japan Review 27 (2014)Book Reviews known as dainin. Although non-licensed, these individuals represented clients in court, and scholarship suggests that they enjoyed the right to represent clients as far as the Japanese Supreme Court (Daishin’in).4 Sono Tel was one of these non-licensed dainin, and it seems she may have continued her legal practice in court at least until 1893 and out of court until as late as 1933, as was the case with other non-licensed legal practitioners.  The early legal field in Japan included licensed lawyers, many of whom were former samurai who often focused their attention on politics and the political movements of the day, as well as non-licensed advocates who conducted the practical day to day representation of their clients. In my view, both of these groups helped craft the modern Japanese legal profession. This is something to which Professor Flaherty gives too little consideration. In addition, the role of the police in the settlement of private disputes during the early Meiji period should not be overlooked in further research. In summary, Professor Flaherty’s dynamic book on the Japanese legal profession has opened the door to many new areas of scholarship, and will no doubt become standard reading for both legal and political historians.REFERENCESFujita 2013Fujita Ikuko 藤田郁子. Nihon saisho no barrister: Kyū Ube ryōshu Fukubara Yoshiyama kō no sokuseki o tazunete 日本最初のバリスター: 旧宇部領主福原芳山公の足跡を訪ねて. Yotsuba Saron, 2013.Hashimoto 2005Hashimoto Seiichi 橋本誠一. Zaiya “ hōsō” to chiiki shakai 在野「法曹」と地域社会. Hōritsu Bunkasha, 2005.Hashimoto 2010Hashimoto Seiichi. “Daishin’in hōtei ni okeru daigen’nin/dainin: 1875–1880 nen” 大審院法廷における代言人・代人: 一八七五〜一八八〇年. Shizuoka Daigaku hōsei kenkyū 静岡大学法政研究 14:3–4 (2010).Hori 2012Hori Masaaki 堀雅昭. Ishin no eiketsu: Fukubara Yoshiyama no shōgai 維新の英傑: 福原芳山の生涯. Ube Nippōsha, 2012.Misaka 2011Misaka Yoshihiro 三阪佳弘. “Kindai Nihon no chiiki shakai to bengoshi: 1900 nendai no Shigaken’iki o daizai to shite” 近代日本の地域社会と弁護士: 一九〇〇年代の滋賀県域を題材として. Hō to seiji  法と政治 62:1 (2011).Misaka 2013aMisaka Yoshihiro. “Meiji matsu･Taishōki Kyōji chiiki ni okeru bengoshi to hibengoshi: Zoku, kindai Nihon no chiiki shakai to bengoshi” 明治末・大正期京滋地域における弁護士と非弁護士: 続・近代日本の地域社会と弁護士. Handai hōgaku 阪大法学 63:2 (2013).4 See Hashimoto 2005 and 2010, and Misaka 2011, 2013a and 2013b.Public Law, Private PracticeJapan Review 27 (2014)     265Misaka 2013bMisaka Yoshihiro. “Meiji zenki minji hanketsu genpon ni arawareta Dainin: 1877–90 nen no Kyōjihan chiiki no dainin no jirei” 明治前期民事判決原本にあらわれた代人: 1877–90年の京滋阪地域の代人の事例. Handai hōgaku 阪大法学 63:3–4 (2013).Sakamoto 2007Sakamoto Tadahisa 坂本忠久. Kinsei toshi shakai no “soshō” to gyōsei 近世都市社会の「訴訟」と行政. Sōbunsha, 2007.Takahashi 2011Takahashi Hiroshi 高橋裕. “Meiji chūki no hōritsu zasshi to Ōsaka Kōhōkai” 明治中期の法律雑誌と大阪攻法会. Hō to seiji  法と政治 62:1 (2011).Yoshida 2004Yoshida Masashi 吉田正志. Kujiyado/gōyado kara daishonin/daigen’nin e no tenkan katei ni kansuru kenkyū 公事宿・郷宿から代書人・代言人への転換過程に関する研究. Monbushō Kakenhi Hojokin kenkyū seika hōkokusho 文部省科研費補助金研究成果報告書 13–15 (2004).Yoshida 2005Yoshida Masashi. “Sendai jōka no goyōyado” 仙台城下の御用宿. In Kinseihō no saikentō: rekishigaku to hōshigaku no taiwa 近世法の再検討: 歴史学と法史学の対話, ed. Fujita Satoru 藤田覚. Yamakawa Shuppansha, 2005.Reviewed by Makiko Hayashi

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

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

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