Izutarō Suehiro (1888–1951), Uso no kōyō / Die Nützlichkeit der Lüge (1922)1)

Abstract

Abstract Izutarō Suehiro (1888–1951), Uso no kōyō The Utility of Lies (1922). This translation presents an essay by the influential professor for private law at Tokyo Imperial University, Izutarō Suehiro that gives some insight into the historical roots of modern Japanese civil law methodology as it highlights the shift in Japanese jurisprudence away from the so-called German ‘conceptual jurisprudence’. Rejecting the traditional formalistic application of rigid statutory law, which in Suehiro’s eyes forced judges regularly to resort to legal fictions and lies about the facts of a case in order to be able to deliver humane judgements, his new ‘Japan-compatible’ approach expected the judiciary to develop flexible case law, which would enable judges to achieve ‘concretely appropriate’ judgements. In this context the judiciary was no longer to assume litigants as rationally acting, self-concerned individuals in general, but to admit the possibility of irrational, altruistic etc. personalities and to adjust the application of law to these individual differences. This raises however concerns regarding the principle of equality before the law and the role of a democratically legitimated legislator.