The Concept of an East Asian ‘Rechtskreis’: origin and future

Abstract

The paper provides an overview of the German language discourse on East Asian law (Rechtskreis) and its history. The notion of a ‘Rechtskreis’ lacks clarity of contents, and is used interchangeably with ‘Rechts-familie’ (family of law), ‘Rechtsstil’ (type of law) or ‘Rechtskultur’ (legal culture), among others. The ‘Rechts-kreis’ discourse is also a German-only one, as the term cannot be directly translated into English.On the other hand, the concept allows for a certain globalization and can be applied to legal systems out of Europe. It admits some generalizing (Hertel), thus allowing the Wesern-European observer to easily grasp the variety of Asian legal systems (Igarashi). To be able to generalize, details may have to be glossed over, and results may be achievable only by generous simplification. The paper analyzes such simplifications and and the awareness of them within the East Asian Rechtskreis discourse.The academic discussion on an East Asian legal tradition first began in German China studies (Sinology) (Bünger, Kroker), and started in legal studies much later. This was when the term of an East Asian Rechtskreis was first established. When the word was first used in the 19th century (Dölemeyer 2010), it only refered to the continental-European and the Anglo-American Rechtskreis. In 1950, David for the first time included Asian legal systems. While some scholars approved (David; Zweigert/Kötz), others denied the existence of an independent East Asian Rechtskreis. Between several editions of his main book, Zweigert even changed his view and came to opposite conclusions.Chinese, Japanese and Korean legal scholars took up the European, mainly German language debate and gave their own feedback and views in the German language (Kigarashi, Tjong Zong-uk). Findings show approval as well as criticism of the Western European doctrine when seen from an Asian perspective.