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Top>Opinion>Where there is society, there is law


Nobuaki Hogaku

Nobuaki Hogaku [Profile]

Where there is society, there is law

Nobuaki Hogaku
Professor of Commercial Law (Corporation Law) Faculty of Law, Chuo University

Society and law

Society needs certain rules in order to continue to exist as it is. Such rules are known as laws, and therefore, wherever there is society, there are laws. The laws that exist in a narrow sense under the premise of a nation are naturally defined by the way the society works. On the other hand, laws that involve enforcement by a nation change the way the society works and how people recognize the laws. In this article, I would like to cite some simple examples to discuss the relationship among the society, law, and nation.

If very idealistic laws, for example, are instituted and strictly enforced to the letter of the law, the society is likely to become inhospitable, just as expressed in the proverb: Clear water breeds no fish. In France, the government and administration have strong authority partly because of the tradition of absolutism. Since French people are realistic, on the other hand, the laws are enforced moderately although the letter of the law is very strict. As a result, the discretion of the particular administrative official with whom you have contact could cause significant inequality. There is a distinct possibility, then, that discretionary administration could become prevalent.

The legal sense of French people

In the French movie Ripou (the Rotten), an interesting scene appears repeatedly in which two policemen drop in at a restaurant or pub, point out minor violations of the law, and then eat and drink free of charge. Japan also has similar movies and TV shows. This problem can occur wherever there is a gap between the letter of the law and actual enforcement.

Just as in Japan, people who park illegally get parking citations in France. In France in 1990, when I stayed there for study abroad, however, I heard that only a quarter of the fines for illegal parking were paid. (In Japan, they say that almost all fines are paid.) On one occasion, when I told a French friend that I had been asked on the street by a Japanese traveler how he should deal with the parking citation he had received and that I had advised him how to pay the fine, my friend laughed and said: “You know, only 20% of the French pay fines. What silly advice you gave a guy who's leaving France soon!” The mirror image of the movie Ripou mentioned above, French citizens seem to eat and drink free of charge.

As for speeding, I have heard that a driver rarely receives a ticket for speeding in Japan when he or she drives on an expressway at a speed a little over the limit of 100 kilometers per hour. In France, many people used to drive at speeds of 170 to 180 kilometers per hour, even though the speed limit on expressways was 130 kilometers per hour.

Drastically changed French people

In France today, however, the speed limit is strictly enforced. One day, one of my French acquaintances said “By setting the cruise control to 130 kilometers per hour, I will not drive even one kilometer per hour over the speed limit,” which was quite different from what I had heard before. Radar monitor equipment installed in 1992 automatically generates payment slips for fines which are automatically sent to people who drive even one kilometer per hour over the speed limit (though a slight allowance is actually made). Further, various schemes such as early payment discounts and stiff penalties for delayed payments help improve the payment ratio. It seems that the French can do anything that they set their minds to do.

At all events, these examples imply that the enforcement of the law depends on the legal sense of the people of a nation, even if the law itself is the same, and that it is not always impossible to form their legal sense to some extent as stipulated by the law if the nation makes a concerted effort.

Contrasting neighbors

Here, I would like to introduce an interesting episode in studying the relationship between the national sense and law. With the increasing globalization of corporate activities, international mergers and acquisitions have become quite common and legal systems have been made open accordingly. As a result, explicit prohibition against the acquisition of domestic company stocks by a foreign company, for example, by inserting a nationality clause in stockholder qualifications, is likely subject to great criticism for being a typical non-tariff barrier. It is said that China has accumulated sufficient funds to acquire all companies in Germany more than once, prompting serious discussion in Germany about countermeasures against such takeovers.

Upon hearing this, however, French people apparently laugh at the Germans for being so serious. If such takeovers were to occur in France, according to the French idea, the workers at that company will carry out a strike and bankrupt the company itself-so nobody would make such a foolish move.

What, then, do Japanese people think about takeovers by foreign companies?

I think few Japanese people believe that the government would take appropriate action to protect Japanese companies, and I must admit that I feel a bit uneasy about it myself.

(Offered by: Hakumon Volume 62, Number 3: Hakumon Review)

Nobuaki Hogaku
Professor of Commercial Law (Corporation Law), Faculty of Law, Chuo University
The author was born in Okayama prefecture in 1949. He graduated with a graduate degree from the Faculty of Law at Chuo University and received his Doctorate from the Doctoral Program in the Graduate School of Law at Meiji University in 1982. After working as a professor at the Women's College of Meiji University, Professor Hogaku took up his current position in 2003.
His primary works include Political Funds and Law System (co-author: Meiji University Institute of Social Sciences Library). He is currently conducting research abroad on Corporate Financing and Reconciliation of Interests among Stakeholders at the Institute of Enterprise Law at Strasbourg (Robert Schuman) University.