Overcoming ‘Cultural thesis’ in Comparative Legal Studies of Non-Western Societies: the Case of the Nineteenth Century Modernisation in Japan and Russia
A claim that law reflects culture holds the promise of explaining the success and failure of some societies to modernize their legal systems after Western patterns. However, recent socio-legal studies call for attention to other factors. This paper revisits the ‘cultural thesis’ with regard to Japan and Russia. Many scholars used to refer to the Confucian and Orthodox heritage to explain reluctant usage of the legal institutions and uneven effect of legal modernisation. However, this explanation restated biased stereotypes and failed to take into account such factors as rational (pragmatic) attitude, reaction to the design of legal institutions, and legal politics of the elites. The author traces the origins of the ‘cultural thesis’ in the works of the main protagonists, looks how it can be revised and contemplates a more adequate scheme to assess the weight of the factors that caused, facilitated or blocked legal changes in non-Western societies since the inception of their modernisation.