From Peasant to Shareholder: Divergent Paths of Group Litigation in Tokugawa Japan and England
Abstract
Today we think of group litigation as being a type of procedural exception to a general system of litigation by individual claimants. History, however, shows us that this has not always been the case. English courts in the thirteenth century routinely heard cases by groups represented by individuals – often villages or parishes represented by one of their number – without any special procedural rules or enquiry to differentiate the case from litigation between individuals.
Tokugawa Japan – whose judicial system bore many similarities to the early English courts – likewise entertained claims by and against groups of litigants represented by one of their number. These were often villages represented by a headman – and like the early English courts the Tokugawa judiciary accepted these claims without any special rules to distinguish such cases from those involving individual litigants.
Yeazell has suggested that over the centuries social and economic changes in England, which altered the political landscape and created a new type of group, the joint stock company, laid the groundwork for a turn towards the modern conception of group litigation. This would eventually result in the idea of a group unified for the purposes of litigation by a shared interest among its members in the case.
Tokugawa Japan, like England thru the turn of the 19th century, underwent drastic social and economic change in the years between 1600 and 1868. Like England, these changes resulted in the creation of a new kind of group – the kabunakama – which was one of the main forms of business organization and a precursor to the joint stock company, whose form would be transplanted to Japan via legislative change in the late 19th century after the abandonment of the Tokugawa judicial system.
Unlike the joint stock company in England, however, the appearance of the kabunakama in Tokugawa Japan did not coincide with any changes in the legal system’s approach to group litigation. Disputes involving the kabunakama, in fact, could not be heard in the Shogun’s courts. The Tokugawa legal system – despite its similar starting point in relation to group litigation and its overall similarities to the English system – never developed a separate approach to group litigation which differentiated it from cases involving individuals. This paper explores why this divergence occurred, arguing that the overall institutional framework of Tokugawa Japan and the nature of the kabunakama made a similar path of legal development to England all but impossible.