Pathway to Japanese Literature

The fact that matters generally deemed irrational in the world outside law are instantly rationalized once they meet the value judgments of the legal world is something we legal scholars frequently recognize.
And it is precisely because I consider these to embody the distinctive characteristics of law and the state that I believe the collection and examination of such phenomena are both highly beneficial and necessary for me as a researcher of law and the state.
In this sense, for several years now I have felt a particular interest in researching "legal fictions in law" (legal fiction, Rechtsfiktion).
And thus, the present text is indeed nothing more than a minor byproduct that happened to emerge in the midst of that research.
This work originated from a manuscript used for a lecture at Keio University, with some additions and revisions, and was published in the July 1922 (Taisho 11) issue of *Kaizō* magazine.

I

We had been thoroughly taught since childhood that we must not tell lies.
Probably, people in the world—without a single exception—believed lies must not be told.
Regardless of reasons, they must all have somehow thought that way.
When we heard the word “lie,” there naturally sprang to mind the story of the shepherd who cried “Wolf! Wolf!” so often that he gradually lost the villagers’ trust and was ultimately devoured by a real wolf.
To such an extent had the notion that we must not tell lies been deeply, deeply ingrained into our minds.

However, despite being so deeply carved and ingrained into us, lies abound in our society.
Lies told out of necessity, lies told despite there being no necessity, lies whispered in secret and practiced in the shadows, lies declared openly—nay, even lies protected by law—terrifying lies that incur punishment if denied—so brazenly do they proliferate under heaven, that in this world of ours, countless varieties of lies are perpetrated without end.

To tell the truth, this world was structured in such a way that surviving in it without telling any lies at all proved utterly impossible.

Therefore, we who wished to live on in this world together had to resolve this extremely significant yet exceedingly difficult problem of how we should handle these lies.

After all, we must not tell lies, yet we could not survive without telling them.

II

I am a legal professional.
Therefore, regarding matters outside my specialty of "law"—though perhaps in informal discussions—I cannot bring myself to publicly state opinions while putting on airs of a pioneer or expert.
Legal professionals remain "specialists" only insofar as they stay within law's domain.
The moment they cross that boundary, they instantly become amateurs.
Naturally, there exists no statute absolutely forbidding specialists from voicing amateur notions.
Yet such expressed "amateur ideas" prove indistinguishable from those of ordinary laypeople without specialized knowledge.
Indeed, viewing matters through specialization's tinted lenses renders these opinions more susceptible to one-sided bias.
In substance, they may well prove inferior to common amateurs' views.
Strangely enough, society showers undue reverence upon specialists' amateur notions.
These carry far greater prestige than ordinary laypeople's amateur ideas.
Consider the countless unknown Hachikōs and Kumakōs possessing keen theatrical discernment.
Yet when marquises or doctors venture amateur opinions on drama, society promptly hails them as theater savants—bestowing peculiar deference—while the men themselves puff up and publicly declaim.
Were they merely rare titled gentlemen with average dramatic understanding, one might overlook it. But hearing them spout amateur notions with faux-expert airs, witnessing society's special reverence—this I find thoroughly disagreeable.
I deem such conduct nothing less than a species of "unjust enrichment."
Yet specialists habitually err here.
Society too routinely repeats this error, unduly venerating specialists' amateur ideas.
I find it utterly perplexing.

I am a legal scholar.
Therefore, regarding "law" and "scholarship," I do at least possess the qualifications to express opinions as a specialist.
Thus even as I consider how to address lies under the title *The Utility of Lies* here in this discussion, I naturally intend to confine the debate strictly within these domains of "law" and "scholarship."
When it comes to matters of general morality or education, assuming the manner of an "expert" to voice opinions simply does not suit my disposition.

"In law and scholarship"—
In general, lies serve various functions, whether for good or ill.
To consider this matter would prove of considerable interest, I believe, not solely to legal professionals but to the general public as well.
Particularly for myself, articulating my thoughts concerning this "utility of lies" becomes a matter of utmost importance—or at minimum considerable expediency—in clarifying my stance toward both "law" and "scholarship."
This constituted the principal motive that led me to compose this essay.

III

I first wish to present two or three examples of the various "lies" that have appeared throughout legal history.
And thus, I would like to consider what kind of practical role those "lies" actually played.

When we consider matters such as law or trials, we immediately recall Ōoka Echizen-no-kami.
And thus I consider him to be the ideal judge—the very model of a renowned magistrate.
Whenever we hear complaints that the trials conducted in our present-day society are somehow incompatible with human sentiment, lacking in humanity, or that judges are devoid of common sense or fossilized, we are reminded of Ōoka’s trials.
And thus I think we desire such humane trials.

Then why was Ōoka Echizen-no-kami so highly praised—nay, was so popular in his time that he came to be passed down even through kōdan storytelling and oral traditions?
I unfortunately do not possess academically precise historical facts regarding this point.
As for whether all the facts written in the so-called Ōoka Seidan truly constitute Ōoka Echizen-no-kami's actual achievements, I do not hold even a shred of precise knowledge.
However, this makes no difference whatsoever to me.
Even if none of those stories were truly work performed by Ōoka Echizen-no-kami himself, the very fact that they have been transmitted to this day as the Ōoka Seidan clearly demonstrates how ardently people of that era welcomed that variety of trial.
Therefore, when I now speak of Ōoka Echizen-no-kami, I in fact refer to the Ōoka Echizen-no-kami who appears in the Ōoka Seidan—whether this corresponds with historical truth holds not the slightest interest for me.

For what reason are Ōoka Echizen-no-kami's trials acclaimed as masterpieces that penetrate the subtleties of human emotion? To put it concisely, I would answer that it was due to his skillful use of "lies." Setting aside for now the debate over whether lies are good or bad, it remains a fact that Ōoka Echizen-no-kami was a master of lies. And thus he was a man praised for his adeptness at telling them. I urge you to read the *Ōoka Seidan*.

The laws of that time were an exceedingly rigid, inflexible, and troublesome system.
Were they to be rigidly enforced, these were laws sufficient to make all people tremble in fear.
Moreover, judges of that time could not arbitrarily adjust the laws, which were the commands of the authorities.
The laws were immutable—they could neither shift on their own nor be shifted by others.
Under these laws, conducting humane trials aligned with human sentiment was an exceedingly difficult task.
Moreover, Ōoka Echizen-no-kami dared to do precisely that.
Moreover, he was able to accomplish this without being dismissed from his position and while being praised by society.

Then how was he able to accomplish that?
That method was “lies.”
The “laws” of that time were strict and could not be altered.
It was impossible to move the law to conform to human sentiment.
Therefore, Ōoka Echizen-no-kami conceived of manipulating “facts.”
If a “fact” was recognized as existing under the law,
they must inevitably punish this.
If they enforced punishment accordingly, it deviated from human sentiment.
In such cases, the only means available to judges was “lies.”
There was no other method than declaring existing “facts” as nonexistent and nonexistent “facts” as existing.
And thus, Ōoka Echizen-no-kami was truly a man who skillfully managed that.

However, it was not only Ōoka Echizen-no-kami who demonstrated humanity in trials through this same method—judges everywhere, though varying somewhat by era and location, all appeared to adopt identical means without exception.
For example, even in Rome, it is said that judges frequently applied the legal doctrine of *monstrum* to absolve mothers who killed deformed infants of murder charges.

In Rome, even if an infant was born from a human womb, if it was deformed and lacked sufficient human form, they legally termed it *monstrum* (non-human entity) and did not grant it legal personality.
This concept appears to have existed in Rome from ancient times, but was later incorporated into the Justinian Code as Jurist Paulus’s opinion in *Digestorum Lib. I. Tit. V. de statu hominum L. 14*.
However, when a mother gave birth to a child, it turned out to be an ugly *monstrum*.
Believing that keeping such a child alive would bring disgrace upon the household and constitute misfortune for the child itself, she secretly killed it.
Strictly speaking in legal terms, this act would still undeniably constitute a form of murder.
Yet for judges as human beings, charging the mother with murder under these circumstances proved utterly unbearable.
From society’s perspective too, this was an extremely foolish course of action.
Therefore, wanting somehow to save her, the judges conceived this doctrine of *monstrum* as their means of salvation.
"The mother killed the child," they ruled, "but what was killed was not a human but a *monstrum*, and therefore no crime has been committed."
Through this reasoning, they explained, the pitiable mother was saved.

From modern medicine’s perspective, it must seem utterly impossible for a “non-human entity” to emerge from a “human” womb.
Yet to mock the Romans as foolish or ignorant would itself betray boorishness.
Admittedly, their reasoning was unsound.
Nevertheless, this very reasoning saved human lives.
And those living in that era surely praised their judges.

Moreover, we hear that inspectors during the Tokugawa period considered “turning a blind eye” to be an essential tenet.
If one were to argue strictly rationally, once they discovered a crime, inspectors had to prosecute all such cases without exception.
However, had they prosecuted each and every one of these crimes, society would not have accepted it.
As a result, “turning a blind eye”—in other words, “telling lies”—came to be regarded as a virtue (?) for inspectors.
Yet this same practice was not limited to the Edo period alone but persisted through the Meiji and Taisho eras.
The Criminal Procedure Law underwent amendment this year.
Despite there having been no clear statutory provisions prior to this, most scholars advocated what they termed the “principle of expediency” (Opportunitätsprinzip), asserting that prosecutors’ discretion alone determined whether to pursue charges—a view judicial officials implemented in practice.
While labeling it the “principle of expediency” lent solemnity, in essence it equaled inspectors “turning a blind eye.”
However, Article 279 of the revised Criminal Procedure Law ultimately codified this principle by stipulating: “When prosecution proves unnecessary considering the offender’s character, age, circumstances, crime particulars, and post-crime conditions, indictment may be withheld.”
Thus by establishing standards for “liars” rather than sanctioning “lies,” they forged truth from falsehood.
Gentlemen, I urge you to examine the “Infanticide” section in judicial statistics.
There you will discern how extensively contemporary prosecutors practice this “blind-eyed” approach regarding such cases.

IV

In Anglo-American law there exists a system called “nominal damages” (*nominal damages*). Fundamentally damages—as the term implies—are a system intended solely to compensate for actual harm incurred; therefore even where rights have been infringed if no actual damage has occurred no obligation arises under tort law.
Thus for instance were someone designated as *Party A* unlawfully enter land owned by *Party B* even if *Party B* were file suit seeking damages provided *Party B* had suffered no demonstrable harm from said trespass *Party B* would inevitably face defeat having failed satisfy essential elements establishing tort liability.
Of course from purely rational perspective since *Party B* sustained no loss whatsoever absence any entitlement claim redress stands self-evident.
Yet indisputably *Party A* did violate *Party B*'s property rights rendering *Party A* unquestionably culpable.
Hence *Party B*'s predicament becomes clear: though wronged suffers nominal defeat compelled bear litigation costs—circumstance most galling indeed.
"I care nothing recovering damages" *Party B* must surely think "but neither will accept defeat!" How elated would become could court declare victor even nominally!

The “nominal damages” system in Anglo-American law was precisely the institution that saved Party B in such cases.
Once there had been an infringement of rights, there inevitably had to be some form of damage present.
As a symbol of that damage, courts would give victims—for example—one sen.
By doing so, victims would be considered winners even if awarded merely one sen, thereby gaining exemption from bearing court costs both nominally and practically.
In reality, proof of damages did not hold.
Yet by deeming damages to exist whenever rights were infringed and symbolizing this through one tangible sen lay this system’s ingenuity—one of lies’ most striking demonstrations of utility.

Currently, our country’s legal scholars—generally bound by narrow rationalism—considered the principle of “no damages, no compensation” absolute, regarding systems like “nominal damages” as uniquely Anglo-American irrationalities, something utterly impossible to transplant into our country.
However, if this system were to be implemented in our country, how much more would the trust of laypeople—unversed in legal intricacies—in the courts increase? And how much more moral would tort law become? I earnestly hoped for such a time to arrive.
However, to achieve this, we had to first eradicate narrow rationalism from the minds of general legal scholars and implant a more profound ideology of “reason built upon reason”—
we had to implant the emerging ideology of “reason built upon reason.”

V

Next, the current laws of Western countries generally did not recognize divorce by mutual consent.
Divorce was permitted only in cases where specific causes stipulated by law existed, and since such causes were absent here, it followed that even if spouses mutually agreeded, they could not divorce.
In this regard, it was entirely different from our country’s laws and proved extremely rigid.
However, in any Western country, there remained no reason for couples who had mutually decided to separate to stay quietly bound together.
Even if the Bible states, “What God has joined together, let no one separate,” those who wished to part would inevitably wish to part.
When a couple decided to separate, they conspired together to formulate a plan, after which the wife filed for divorce against her husband.
The judge asked, “For what reason?”
The wife answered, “My husband has abused me and struck me three times.”
The judge then turned to the husband, the defendant, and asked, “Do you acknowledge what the plaintiff wife has stated?”
Thereupon, the husband answered, “Yes.”
By doing this, the judge was deceived and pronounced divorce.
Or, while harboring doubts about the factual truth, he still rendered a divorce judgment.
Therefore, even in the West, divorces were in practice carried out through mutual agreement between the parties.
And so, the tool used in such cases became a kind of “lie,” a kind of performance.

The law exists for human beings.
Only when grounded in human thought and the socio-economic needs of society can the law be truly carried out.

Even laws that once aligned with societal thought and economic conditions cease to be effectively implemented as social circumstances change over time.
Moreover, when legislators create arbitrary laws without investigating the true state of social conditions, those laws ultimately cease to be implemented in practice.
As long as the notion that divorce is wrong persists in actual society, the law prohibiting divorce by mutual consent continues to be rigorously enforced.
However, once that notion ceases to be practiced, no matter how stringent the provisions in the statutory text may be, people compelled by actual needs increasingly circumvent those laws using the weapon of “lies.”
When matters reach their extreme, even though there is law, it falls into the same result as having no law.

The same phenomenon arises from the hardening of bureaucratic accountability.
Even officials must eat.
They must also support wives and children.
If they are dismissed arbitrarily, they must wander the streets together with wives and children.

A certain lower-ranking official had been assigned to guard a particular location.
Let us assume that at this moment, a lawless man leaped out with a bomb in his pocket, which exploded and ultimately led to his suicide.
Admittedly, while the man’s reckless actions—utterly disregarding his position—were indeed condemnable, there was no justification for imposing absolute responsibility upon the official who had merely been ordered to guard that location.
Whether the official bore responsibility depended on whether there had been actual negligence in their specific security duties during the incident; it could not be absolutely determined by their mere coincidental presence at the scene.
Yet was not the current handling of bureaucratic accountability issues in our country being conducted in an extremely formalistic manner regarding this very point?
In cases where stations became crowded, no matter how diligently the stationmaster maintained vigilance, some people would inevitably be pushed onto the tracks.
If the stationmaster had not neglected to exercise the utmost care under such circumstances, he bore no responsibility whatsoever.
Responsibility lay with whoever had done the pushing or with those who caused the crowding.
However, in current practice, was it not necessary to designate a so-called “responsible party” from among stationmasters or station staff whenever such incidents occurred?

Responsibility can only exist upon the foundation of freedom.
When rules deprive a person of their freedom, one can no longer hold that person responsible.
However, government offices and large corporations that handle all matters in a rule-bound manner even attempt to formally determine their employees’ responsibilities through regulations.
As a result, responsibility hardens and becomes formalized, losing all moral foundation.

However，officials too had to live.
They had to support a wife and children.
When officials were made to bear responsibility only formally without being granted freedom，would they truly remain silent and submit to that responsibility？
No—under such circumstances，he would inevitably falsify the “facts” that constituted the basis of formal responsibility and conceal those “facts，” resolutely aiming to sever accountability at its root．
In other words，he tells a “lie．”

Having cited the aforementioned examples, I by no means rendered concrete judgments regarding specific incidents that recently occurred in our country.
However, it remains true that we frequently hear of this fact called “lying officials” in our time.
If this proves factual, would it not constitute a critical issue to consider where its root lies?
I maintain that the cause resides in what might be termed the “ossification of accountability.”

If parents attempt to raise their children strictly according to their own ideas without heeding their children’s requests at all, the children will inevitably become “liars.”

VI

Even from just the two or three examples discussed above, one can see how significant a role lies play in the legal system.

First and foremost, those who have heard of examples like Ōoka’s trials and the Roman *monstrum* must have fully understood how effective lies can be in rescuing people when legal systems become excessively rigid.
And so, even you all—however upright—must have been impressed to realize that lies too are not to be dismissed lightly.
Especially when conservative elements dominate a nation, laws cannot adequately follow shifting societal sentiments, resulting in a chasm between “society” and “laws.” In such cases, the sole means to make laws harmonize with society—by any measure—is “lies.”
In society, people often claim that judges are fossilized or devoid of common sense.
However fossilized they may be, however lacking in common sense, they remain “human” after all—
human beings who perceive beauty as beautiful when they see it and taste sweetness as sweet when they eat it.
Therefore, when judges behold defendants before their eyes, hear their words, and learn of various background circumstances—regardless of what the law dictates—they cannot help but think, “I must render this judgment” or “I must adjudicate thus” as human beings. We must acknowledge this as precisely what is natural for judges to do.
In such cases, if “the law” were flexible, that would be one matter—but if it remains strictly rigid, judges will inevitably seek aid through “lies.”
They declare what existed as nonexistent and what did not exist as existent, thereby evading the law’s application—
and thus satisfying the demands of “humanity.”
This is not a question of right or wrong.
It is a fact—
a fact that must persist eternally so long as trials are conducted by “humans.”

Furthermore, those of you who have heard examples of officials lying and read accounts of Western divorce cases must have fully realized that “the law” is not omnipotent, as many people—particularly those in judicial authorities—currently believe. The notion that through law one can command all things—even reform customs and morals—is an idea that those in power tend to embrace. However, “human beings” are not as patient or obedient as they imagine. There are generally limits to what “human beings” can accomplish. Even if “the law” makes demands beyond its reasonable limits without justification, people will never readily submit to them. If that person is a resolute honest individual, they will fight “the law” even at the risk of death. Moreover, if that person is clever—as is the case in most instances—they will inevitably turn to “lies” for salvation. And thus they avoid the application of “law.” Therefore, the more excessively strict “the law” becomes, the more citizens become liars. They become spineless. “Tyranny makes people cynical.” However, those who are carrying out tyranny can never laugh at citizens’ “cynicism,” “lying,” or “spinelessness.” For that is of their own making, and citizens too know—just as they do—that life is precious.

In any case, once "the law" ceases to meet society’s demands, "lies" inevitably begin to demonstrate their utility there.
I will discuss the right and wrong of this matter later.
However, in any case, that is an indisputable fact.

VII

Human beings are generally conservative by nature.
At the same time, they love rules.
They detest exceptions to a ridiculous degree.

For example, suppose there exists a single "law".
However, imagine society gradually changes and new facts emerge that no longer fit within that “law”.
The most rational course of action in such circumstances would be to create an exception for these new facts.
This constitutes perfectly sound reasoning.
Yet human beings in most cases refuse to take this rational path.
They endeavor by any means to cram these new facts into the old “law”.
For this reason, they do not hesitate to distort facts—in other words, to tell “lies”.

Therefore, when examining the history of legal development, one could see that "lies" indeed served as mediators in law's evolution.
Henry James Sumner Maine, founder of the English historical school, pointed out this fact in his celebrated work *Ancient Law*, while Jhering, progenitor of the German sociological school, did so in his immense masterwork *The Spirit of Roman Law*.
They sought numerous concrete examples within ancient legal transformations.
However, this phenomenon was by no means limited to ancient times of rudimentary human intellect.
In the world of modern civilized people who prided themselves on advanced rationality—capable of supremely logical thought and action—countless such examples existed.

For example, the principle of “no liability without fault” gradually developed since Roman law and became fully established particularly from the end of the eighteenth century onward.
Indeed, this principle was clearly adopted in both our Civil Code and the laws of Western nations.
However, with the recent advancement of material civilization and development of large-scale industry, a considerable number of troublesome items were invented—extremely convenient for those who used them, yet extremely dangerous to others.
Moreover, many things that must inevitably be used for the needs of general cultural facilities—or rather, that were at least convenient when used—and as a result tended to cause harm to others were invented.
Automobiles, trains, large factories, reservoirs, gas tanks, and the like were precisely these.
These items were extremely convenient.
However, they were also dangerous.
If people who suffered harm through the use of these items could not seek compensation unless they themselves proved the perpetrator’s “fault” under the traditional principle of “no liability without fault,” then in many cases, they would effectively be unable to achieve the objective of claiming damages.
For example, recently in Fukagawa, a gas tank exploded.
The company claimed it was an act of God, while the victims argued it was the company’s negligence.
Under the traditional principle, if victims wished to claim damages, they had to prove the company’s “fault.”
However, today when the tank had exploded without leaving a trace, could the victims really provide such proof?
That was either completely impossible or at least extremely difficult.
And this was exactly the same for people killed by automobiles or those who were killed or lost property due to reservoir collapses.
Therefore, modern society came to demand the principle of “no-fault compensation liability” against the traditional “negligence liability principle.”

As legislators, the time had come to appropriately enact new laws and regulations that met these new demands.
"Negligence was not the sole cause of liability."
There were also cases that sufficed as rational bases for liability for damages.
Based on that foundation, the time had now come to enact new laws.
Scholars took action.
Legislators moved somewhat.
The automobile liability laws enacted in various countries beginning with Germany became one example of this.
Yet while legislators across nations hesitated to act and German scholars waged theoretical battles over no-fault liability in academic papers, it was actually the French courts that achieved a monumental leap forward in practice.

French courts objectified the concept of "fault," which should inherently have remained subjective.
In specific cases, they objectively predetermined that fault existed as a matter of course, ceasing to examine the subjective essence of fault.
Of course, they continued verbally invoking "fault."
Yet this so-called "fault" had in practice become nearly synonymous with "unlawfulness."
Thus while German scholars were publicly expounding and debating theories of no-fault liability, French courts had already silently achieved the same end.
The "weapon" deployed in this endeavor was none other than "lies."
Through these lies, French courts established an entirely new legal doctrine.

The same endeavor is frequently attempted by judges in our country today.
The most striking manifestation of this occurred in the Great Court of Cassation judgment of September 1, Taisho 9.
The case summary follows.
A man left his wife and children in his hometown to go to America but failed to send adequate funds, compelling his wife to borrow twenty or thirty yen from another person for living expenses.
When the lender demanded repayment, the wife invoked Article 14 of the Civil Code—"A wife cannot borrow without her husband's permission"—to cancel the contract and refuse repayment.
In such cases, Article 17 exempts wives from requiring spousal permission under specific circumstances.
Thus the contract would normally stand irrevocable; however, since no such circumstances applied here, formal logic appeared to necessitate accepting the wife's argument.
Yet the court ruled against her, declaring: "When a husband abandons his family abroad for years without remittances—absent special circumstances like substantial home assets—it must be deemed naturally reasonable that he implicitly permitted necessary borrowing for household maintenance and childrearing; only thus can judgments fully harmonize legal principle with human sentiment."
Factually, the wife had obtained no permission.
But since denying this would produce an unjust outcome for the lender, the court fictitiously construed "permission."
That is, while no actual permission existed, they employed phrases like "naturally reasonable" and "harmonizing principle with sentiment" to simulate its presence.
When this ruling emerged, Dr. Makino—foremost advocate of Japan's free law movement—interpreted it as "judicial expansion of Article 17 exceptions." Conversely, Dr. Tomii—senior exponent of French legal tradition—countered: "This isn't exception expansion; the court affirms factual permission existed."
Observing this debate, we found keen interest in discerning not just surface arguments but the scholars' underlying mental processes.
"Turning a blind eye"—
We witnessed the contrast between French-style pretense and free law rationalism seeking evolutionary progress.

VIII

Thus throughout history, “lies” had demonstrated considerable social utility.
It could be considered that they continued to demonstrate the same utility even in the present.
This served as evidence that human beings—despite priding themselves on being supremely rational—were in fact surprisingly irrational creatures.

However, when considered through pure rationality, lies must not be permissible.
To claim that what occurred had not occurred, and to assert that what never happened did happen—this was profoundly problematic.
Therefore revolutionaries—being generally highly rational and thus seeking to eliminate all forms of “falsehood,” “compromise,” and “tradition”—were almost invariably opponents of “lies.”
As legal systems, they sought to eradicate all legal fictions from within them.
Many examples of this could be observed in the laws following Russia’s recent Labor-Farmer Revolution.
For instance, the Russian law of September 16, 1918, had stipulated the complete abolition of the adoption system.
Its rationale document declared: “In kinship law, our First Code rejected all legal fictions to immediately surface the factual state of affairs—that is, actual parent-child relationships.”
“This was achieved not merely through words but through facts,” it explained, “to accustom the people to speaking truth and liberate them from various superstitions.”
Hence from a rational perspective, the prevalence of legal fictions within laws could not be deemed praiseworthy; rather, it properly indicated the necessity for legal revision.
Yet given humanity’s fundamental irrationality, achieving de facto legal reform through fictions remained critically necessary.
Jhering had articulated this truth in his aforementioned *The Spirit of Roman Law*, stating: “To demand abandonment of fictions before establishing true solutions resembles ordering a lame man on crutches to discard his staff.” He further observed: “Without legal fictions, many Roman legal transformations that profoundly influenced posterity would likely have materialized far later.”

However, that legal fictions were not a complete method of reform was something even Jhering acknowledged.
The emergence of legal fictions was meant to be utilized as stepping stones for progress by suggesting not merely the necessity for legal reform but rather the fact that the law had already been amended in practice.
Lies inherently lacked systematic principles.
Therefore, when courts attempted to harmonize societal changes with laws through this method, if “lies” were their sole weapon, then except in cases where the courts possessed truly trustworthy and noble ideals, people in society could never feel secure.
Even if they truly possessed noble ideals worthy of trust, to demand that people place their trust and security solely in these ideals was a notion tantamount to accepting autocratic rule through faith in a wise sovereign.
How could modern people, shaped by the French Revolution, possibly accept this?
They seek a truly reliable “non-human measure” as their standard.
They seek a guarantee.

Furthermore, if laws remain rigid and judges become inflexible, then as discussed above, the very people subject to legal application will themselves resort to “lies.”
And it is clear that this is by no means a phenomenon to be welcomed.

The prevalence of "liars" among children was evidence of parental obstinacy.
The prevalence of "liars" among the citizenry was evidence that national laws did not conform to social realities.
In such cases, the attitude parents and the state had to adopt was one of self-reflection.
Furthermore, the attitude judges had to adopt in such cases was to recognize that the time had come to reform the laws and, until such reform was fully realized, to “turn a blind eye” and tolerate “lies” as lies.

IX

Humans prefer “fairness.”
Modern people, who had suffered long under “unfairness,” loved “fairness” above all else.
“All must be equal before the law.”
This was the fundamental demand of modern people in general toward the state and society.
And thus, the so-called “rule of law” was indeed a system born from this demand.

The rule of law is a doctrine that establishes laws in advance and seeks to manage all matters in accordance with them. It is, so to speak, a doctrine that creates a "legal" measuring stick in advance. However, by nature, a "measuring stick" has fixity as its essential nature. "A flexible measuring stick"—that is a self-contradictory concept. For example, if there were a cloth merchant who used a flexible rubber measuring stick to sell fabric, likely no one would trust this. Similarly, even if a state has laws, if they were to expand and contract recklessly, the people would undoubtedly be left without a foundation to rely on and would inevitably voice complaints.

However, so “fair”—
Even those who love “fairness” would inevitably voice complaints if “the law’s measuring stick” were an absolutely fixed standard that does not stretch or shrink in the slightest.
Human beings demand “fairness” while simultaneously detesting “inflexible rules.”
Therefore, it must be said that they are demanding something that appears extremely contradictory and self-willed.
However, even if this is indeed a “contradiction” and “self-willed nature,” there is no helping it—for such is the nature of human beings.
Given that human beings are thus constituted, the law that operates upon them must be capable of fulfilling these “contradictory” and “self-willed” demands.
For we are not considering the laws of some fantastical “ideal state,” but rather the laws of the real human world.

However, most of those who had traditionally discussed law did not seem to conceptualize humans as such “contradictory” and “self-indulgent” beings.
As a result, some among them argued that if humans wished to maintain “equality before the law,” they must not simultaneously demand a “flexible law” capable of stretching and shrinking.
And even in specific cases where applying existing “laws” would appear utterly unjust from ordinary people’s perspective, they declared: “It is the law.”
Under this single phrase—“it must be applied”—they proceeded to enforce that law.
That attitude was indeed admirably resolute.
Yet could these individuals—so resolute in their enforcement, cold and unyielding as iron—truly claim to harbor no unease within their hearts?
No—they too were human.
They were human beings who saw beauty and found it beautiful, who heard sorrow and felt sorrow.
Without doubt, within the hearts of those who had thus cut men down, a man’s tears must have been flowing.
If those tears were not flowing—that was no “human.”
To set the law in motion and produce judgments was nothing more than operating a meat grinder.
We could not countenance allowing such a machine to occupy the noble position of judging humans.

Then, what of those who resolutely cut down others while shedding a man’s tears within their hearts? I consider their resolve admirable. Yet this must simultaneously be deemed foolish. For if “the law” were an utterly inflexible and fixed entity, and those who applied it treated it as absolutely immutable, the “contradictory” and “self-indulgent” people of this world would inevitably voice doubts like, “What purpose does the law even serve?” Among them, the honest and courageous would scheme to destroy “the law.” Moreover, the clever among them who cherished “life” would secretly devise ways to circumvent it—because they must survive, even if through circumventing the law.

The honest and courageous among them could not bear to tell lies.
Were they to tell lies, they would resolve to destroy the law even at the cost of their lives.
To live without falsehoods themselves and enable their descendants to do the same, they plotted to dismantle the law.
Thus did those who rigidly upheld the law as immutable find their most dreaded "revolutionaries" arising precisely from these ranks of "honest and courageous people."

Moreover, the majority of clever individuals—those lacking sufficient honesty or courage—schemed to circumvent “the law” through “lies.”
Given that “the law” was fixed and had to inevitably be applied whenever something “existed,” there remained no way to avoid its application other than falsely declaring “existence” as “non-existence.”
It had to be said that humans who ardently loved life seeking recourse in this method was indeed only natural.
“Could those who considered the law fixed and sought to treat it as such possibly desire such outcomes?”
No—this had to be what they detested most.
Yet however much they detested it, stopping life-loving people from lying proved practically impossible.
If they failed to recognize this undeniable great fact of human existence, one had to declare it utter folly.

The great river flowed majestically.
Humans built an iron wall on the right bank attempting to narrow its width.
The water collided with the iron wall and sought to destroy it.
When it became clear this was impossible, the water turned to undermine the left bank.
Breaking through that soft embankment with force, it thundered downstream.
If any slept atop that iron wall dreaming of complacent ease at this very moment—who would not deem them fools?
There exist those who advocate what they call "free law."
And there are others who absolutely oppose it under the banner of rejecting free law.
These opponents fancy themselves damming mighty rivers and bask in self-styled grandeur.
Yet they remain oblivious to how currents erode their own shore.
Such people must abandon their studies and red-brick offices to confront reality with unclouded eyes.
No great effort would be needed.
They would immediately see destruction encroaching upon their flank.
But among them lurk cunning ones—
those who preach law's immutability yet lack courage to enforce it rigidly enough to savor that grandeur.
Bound by tradition and dogma, they pay lip service to law's fixed nature.
But cannot translate words into deeds.
How then do they navigate these contradictory straits?
The weapon they unfailingly wield remains lies.

Of course, judges—particularly those in societies where conservative elements predominate or in law-governed nations—cannot help but adopt such an attitude.
Because they are in the difficult position of having to harmonize “law” and “humans” even through this method.
However, when we see people under no such legal or social constraints—scholars—calmly telling lies, whether intentionally or unintentionally, to reconcile their own entrapment in “tradition” or “dogma” with “human demands,” we can find no justification for its permissibility.
The attitude they should adopt at this juncture must, on one hand, be the amendment of laws.
On the other hand, it must be the affirmation and creation of the law’s flexibility.
If those who have barely managed to harmonize 'law' and 'humans' through 'lies' were to thereby defend and preserve their own 'dogma' and 'tradition,' that would constitute nothing less than a profound self-delusion.

10

The path we must ultimately take must be the creation of a “law” capable of truly satisfying humans who demand “fairness” while detesting rigid formalism.

In modern Europe, it was likely France’s Gény who first advocated taking this path.
He proposed a new conception of law to rationally conceptualize what French judges had in fact been reconciling through “lies.”
As a result, the Free Law Movement that had been set into motion began to exert influence on our country’s legal academia over a dozen years ago.
However, at that time, it merely aroused abstract debates within legal academia and had almost no real-world grounding.
Yet since the World War, our nation’s general economic conditions and social ideologies underwent great upheaval, resulting in a sudden chasm opening between “law” and “humans,” whereupon the previous Free Law thought found an opportunity to raise its head once more.
And indeed, it raised its head under the name of “the socialization of law.”

It is undoubtedly a phenomenon to be welcomed.
However, what we must consider at this juncture is that even those who detest rigid formalism and desire humane judgments have by no means abandoned their demand for “fairness” and its “guarantee.”
Modern people, having once undergone the baptism of the French Revolution—while fully aware that the hollow desire for “freedom” has conversely become the cause of social calamities since the nineteenth century—still refuse to abandon “freedom.”
Moreover, while they are fully aware that “rule of law” all too easily becomes a cause of rigid formalism, they still refuse to abandon this “guarantee of fairness.”
Therefore, even as we advocate for “Free Law” and champion the “socialization of law,” what we must never forget even for a moment is to secure for the people their “freedom,” “fairness,” and the “guarantee” thereof.

However, when observing many recent scholars who advocate “Free Law” and champion the “socialization of law,” one finds that beyond speaking of “the ideal of law,” “the purpose of law,” or “public order and good morals,” they have put forth no truly substantive considerations capable of satisfying society’s demand for “guaranteed fairness.” Admittedly, it may well serve to inspire young people—who are all too prone to being bound by “tradition” while simultaneously being tripped up by meticulous “logic” and losing heart—to courageously engage in the battle for a “new order.” Moreover, it would have the efficacy to break down the deeply entrenched “Conceptual Jurisprudence,” “bureaucratism,” and “formalism.” However, if scholars’ efforts remain confined to that alone, their achievements will be exceedingly short-lived. It is transitional. They do nothing but destroy the old, constructing nothing new for human culture. The moment they succeed in breaking down “Conceptual Jurisprudence” at the front gate, the demands of “fairness” and “freedom” will immediately assail them from the rear gate. If such is the case, what difference is there between them standing momentarily atop the crest of a wave and laughing at those lying low in the trough? Eventually, they themselves must fall into the trough of the wave and invite the laughter of those who come after them. How much cultural value such things truly possess, I deeply doubt.

Those who idly preach empty “ideals” and invoke “public order and good morals” must ultimately end up permitting judges’ tyranny.
If one were to recklessly advocate “Free Law” and then, upon finally achieving that goal, end up having to seek out guarantees for “freedom” and “fairness” all over again, it would amount to nothing.
What we seek lies in maintaining guarantees of “freedom” and “fairness” while avoiding rigid formalism—in other words, in “guaranteed substantive fairness.”

Traditionally, there have been roughly two types of means employed by those attempting to manifest “substantive fairness” or “concrete appropriateness” within judicial decisions.
The first was judicial supremacy through eminent judges; the second was the jury system.
If we allowed eminent judges to adjudicate with complete freedom, we could at least obtain judgments concretely appropriate for individual cases.
However, such an approach shared ideological kinship with those disillusioned by modern politics’ failings who extolled enlightened despotism.

Indeed, I believe that "culture" means making what only certain special individuals can achieve easily attainable by anyone, and that scholarship serves as the means to facilitate this.
If we can only say there can be no wise judgments without eminent judges, this constitutes nothing less than a denial of "jurisprudence."
Ultimately, this argument differs little from claiming Dr. Honda Kotaro becomes superfluous so long as we have Master Craftsman Masamune.
We must create laws that enable wise judgments even without eminent judges—laws capable of ensuring concrete appropriateness and substantive fairness in each specific case.
Otherwise, the moment we secure "Free Law," we will inevitably find ourselves longing anew for "freedom" and "fairness."

Next, the jury system was the second method to make "law" simultaneously conform to "human" demands.
It was a method that sought to achieve the same objective through means directly opposite to judicial supremacy by eminent judges.

Judges tend to become constrained by demands for “fairness” that constitute “law’s” original purpose.
As a result, trials risk losing their “humanity.”
To remedy this defect, numerous laypeople are assembled in courtrooms to determine fundamental questions of guilt or innocence—this being what constitutes the jury system.
This method enables trials to constantly shift with societal changes while granting laws ordinary flexibility.
However, its responsiveness sometimes becomes too acute—easily swayed by specific case circumstances—and consequently risks lacking both “rationality” and “fairness.”

In this sense, judicial supremacy by eminent judges and the jury system each possess opposing strengths and weaknesses.
Thus, to satisfy modern people who detest rigid formalism while still hoping to secure guarantees of "freedom" and "fairness," both doctrines share a common flaw.

11

We desire “measurement standards.”
Moreover, we simultaneously demand “flexible measurement standards.”
To tell the truth, it is a contradictory demand.
Moreover, given that humans are such beings, the law must be capable of fulfilling these contradictory demands.

Therefore, I believe that the "law" to be created henceforth must be a "regularly flexible scale" for each specific case, and that "jurisprudence" must also seek the "laws governing this flexibility."
As long as the Free Law Movement seeks merely a—rubber-like—"flexible scale," it will have no effect beyond destroying the "past."

Then, how can this “regularly flexible scale” be created?
This is indeed the sole objective toward which jurisprudence must henceforth direct itself, and moreover, it belongs to the realm of exceedingly difficult problems.

In my view, the fundamental flaw of conventional “law” and “jurisprudence” lies in their neglect of studying “humans”—their very subject—while arbitrarily assuming them to be some fixed entity.
That is to say, I believe it lies in carelessly replacing the value of what should fundamentally remain an “unknown” with a “known quantity” without sufficiently empirical investigation.
Of course, all scholarship assumes hypotheses.
Because unless all the numbers given in a problem are made into known quantities—even if only tentatively—it is ultimately impossible to obtain a scientifically precise answer.
However, the hypotheses employed in such cases must be those that possess sufficient probability grounded in thorough experimentation.
Yet legal scholars and economists have all too easily replaced humans—who should fundamentally remain X—with A or B, casually assuming that humans are “rational” or “selfish.”
Thus, scholars can easily obtain answers that are at least formally—if questionably—accurate.
But humans, while rational, also possess profoundly irrational aspects, and while selfish, also possess unselfish aspects—it follows that “results” inferred from such hastily assumed “humans” cannot possibly demonstrate concrete validity in each and every individual case.

Therefore, I believe that within the scope of jurisprudence at least, humans should be incorporated into the equation precisely as humans in their unaltered state—that is, as the fundamental unknown X. Of course, we should devote all our efforts to exploring the known quantities within that X, grounded in the empirical knowledge humanity has obtained through years of effort. And regrettably, according to the knowledge humanity has acquired thus far, the known quantitative elements within X remain extremely few. In the end, we must still allow a considerable number of unknown elements to remain. Therefore, arbitrarily replacing X with A or B constitutes an extremely presumptuous and reckless endeavor. Moreover, even if we accept this, leaving X as X does not constitute scholarship. We must somehow convert it into a known quantity. To that end, we must first seek out as many known quantitative elements—a, b, c, d—as possible within X. However, even so, we must resign ourselves to the fact that a considerable number of unknowns will still remain. If we tentatively denote those remaining unknowns as x, traditional jurisprudence can replace X with terms like (a+b+c+d+x) instead of rashly substituting it with A or B. Of course, even in this case, the determination of x’s value must ultimately be entrusted to judges or jurors. Therefore, while it goes without saying that the ideologies held by judges or jurors ultimately exert an extremely significant influence on the formation of answers, nevertheless, compared to rashly replacing X with A or B, this approach can far better demonstrate concrete validity for each individual case. Moreover, compared to leaving X entirely as X and entrusting the determination of its value wholly to judges or jurors, this approach can far better ensure fairness. Thus, as individual variables such as a, b, and c within the term (a+b+c+d+x) transform into a', b', c' or a'', b'', c'', the answer fluctuates while maintaining its relative relationship to these variables. I believe that the objective toward which jurisprudence must progress henceforth lies in seeking these laws governing fluctuation.

We should make extreme use of the spoils obtained through science.
However, we must not overconfidently rely on these spoils.
We must resign ourselves to the fact that within X, x will eternally remain.
Indeed, we must declare that rashly replacing X with A or B and believing this enables precise answers constitutes nothing less than monumental self-delusion.
We should dissect X through science to its furthest limits.
Then we must determine the value of residual x based on an ideal foundation.
The "accuracy" in jurisprudence must truly be of this nature.

12

As a legal scholar, my argument ultimately comes down to what we call "case law" (判例法主義). By dissecting individual concrete cases found across numerous precedents to derive (a + b + c + d + x), then examining their relative relationship to judicial "answers," I intend to use this as material for inferring what form of "concrete validity" ought to manifest in future cases. Therefore, I maintain that individual precedents are not mere applications of fixed "law," but rather essential material from which to deduce what constitutes this ever-changing "law" that pursues concrete validity.

In this sense, I am convinced that legal education must also transition to the “case method” (判例法主義) henceforth.
Jurisprudence that believes it can arrive at precise (?) conclusions by replacing X with AB or similar variables, as has been done traditionally, does not enable students to grasp the essence of “law.”
It can only enable one to acquire some measure of “logic” and “technical skill.”
However, it must be said that the “law” obtained through such means remains extremely distant from true “law.”

I began legal education through the case method at the university this spring.
It is now being questioned by many people.
However, this is by no means equivalent to what has conventionally been called “exercises” (Praktikum). I believe that only through this method can I truly teach “living law” and “law as a flexible scale governed by certain principles.”
(1922/6/5)