1. Introduction
Rights of common in Japan were a topic where Western modern law, which Japan adopted, and indigenous non-state law conflicted most severely. Consequently, socio-legal studies investigating the customary practices of rights of common as living law were conducted early on (Ehrlich, Reference Ehrlich1913; Suehiro, Reference Suehiro1924; Kaino, Reference Kaino1943). It is not an exaggeration to say that rights of common are the mother of Japanese sociology of law.
This paper deals with contemporary rights of common in Japan and examines whether these customary rights are experiencing a revival. In doing so, it aims to contribute to this special issue by considering how legal postulates, which mitigate conflicts between official and unofficial law can be identified today.
Legal postulates are principles that run through both official law and unofficial law, serving as the guiding principles when the two come into conflict (Chiba, Reference Chiba1986, p. 6). Chiba described Japan’s legal postulate as an amoeba-like way of thinking, stating that unlike the West, there were no clear principles, and Japan’s characteristic was its flexibility in adaptively mediating conflicts between official and unofficial law (Chiba, Reference Chiba1986, p. 355).
However, today, a compliance-oriented legalized society has arrived in Japan, where anything inconsistent with official law is considered wrong. As a result, common forests with unclear ownership titles in the official registration system have recently been problematized as land with unknown owners (Kaneko, Reference Kaneko2024, pp. 114–5). Legal reforms have been enacted to promote the proper registration of common forest land ownership by the Legal Affairs Bureau.
A common forest refers to a forest in which customary rights, known as rights of common, are recognized. In the past, commoners used to gather livelihood resources from these forests; however, nowadays, many of them have become artificial plantations, such as cedar forests. As a result, the customary practice of entering the forests declined.
When land ownership rights are recognized by the commoners holding the rights of common, the registered owner on the land registry is merely nominal, and the true landowners are the commoners. Therefore, traditionally, the registry was considered insignificant. However, since there is no official certification of customary rights of common in Japan, as compliance-oriented attitudes increase, priority tends to be given to the registered owners. This paper addresses the problems that the growing compliance orientation in society brings to common forests.
Based on interviews with holders of rights of common and questionnaire surveys of forestry cooperatives, this paper clarifies how these rights are perceived today and which is prioritized when official and unofficial law conflict. To state the conclusion in advance, contrary to the thought that promoted recent legal reforms, the forestry field prioritized rights of common over officially registered owners and handled matters flexibly according to actual circumstances. On the other hand, for legal procedures requiring proof of ownership through the land registry, flexible handling based on customary rights has declined, and the logic of official law has taken precedence. This indicates that the problem of Japanese law, which has treated rights of common as unregistrable rights, persists today and is being exacerbated by the compliance-oriented legalized society.
The next section briefly explains the legal history of Japanese rights of common. Subsequently, a literature review is conducted to clarify the objectives and significance of this paper. The fourth section explains the methodology, and the fifth section presents the results of qualitative interviews and quantitative surveys. The following sections discuss the significance of the results in light of Chiba’s theory of legal postulates and indicate directions for future research.
2. The brief legal history of Japanese rights of common
2.1. Chiba’s Three Dichotomies of Law as analytical concept
Chiba’s Three Dichotomies of Law were proposed to understand the diversity of law in non-Western societies. In this framework, three dichotomies are used as conceptual tools to analyse law: indigenous law and received law, official law and unofficial law, and legal rules and legal postulates (Chiba, Reference Chiba1986, p. 5).
Rights of common in Japan originated from indigenous customs of the early modern period and conflicted with modern law transplanted from the West. Although these rights were recognized in the official law of the 1898 Civil Code, they were left to customary rights which are not able to be officially registered in the real property registration system. As the Civil Code did not specifically define legal rules for rights of common, legal postulates could only be found in case law and living law (Kaino, Reference Kaino1943; Kawashima, Reference Kawashima1983). While Chiba used the three dichotomies to discuss the general characteristics of laws in each country, they are valuable for analysing Japanese rights of common. Therefore, this paper uses them in the following explanation of Japanese legal history.Footnote 1
2.2. Received law and indigenous law
First, we explain how indigenous law and received law came into conflict. The resources and areas subject to rights of common vary by country (Ostrom, Reference Ostrom1990; Berge and McKean, Reference Berge and McKean2015), but in Japan, rights of common to forests and grasslands have been a constant point of conflict. Therefore, this paper will deal with rights of common to forests and grasslands.
Rights of common (Iriai-ken) originate from customary practices of the pre-modern era.Footnote 2 During this period, farmers would gather grass and shrubs from forests, spread them under their rice paddies and fields to let them rot, using them as fertilizer. They also obtained timber for houses and fuel from common forests. Resource use was essential for their livelihood. As a result, feudal lords recognized customary use for each village, and the concept of exclusive ownership of forest land did not develop.
However, upon entering the Meiji era, Japan began to modernize its society, adopting Western laws. From 1872, efforts were made to determine the owners of all land, including forests. Many common forests were designated as government-owned land. Even in cases where village ownership was fortunately recognized, the early modern period villages were informal units without legal personality in the Meiji era, so land ownership titles were often issued to influential individuals in the village. For a while, customary use was tolerated. However, the government began to exclude villagers, and nominal owners often excluded villagers based on their ownership rights. Conflicts arose in many areas, and lawsuits seeking protection of customary rights were common (Kaino, Reference Kaino1943).
2.3. Discrepancy between rights of common in civil law and the registration system
Due to strong demand for the protection of customary rights, the Civil Code of 1898 recognized two types of rights of common through distinct articles. The first type is the right of common as a servitude (Chiekiteki Iriai-ken, Art.294), which recognizes the right of local commoners to collect products and resources from state-owned or privately owned lands. The second type is the right of common as co-ownership, acknowledging land ownership for those possessing the rights of common (Kyoyu Iriai-ken, Art.263).
However, the Real Property Registration Act enacted the subsequent year did not provide ways for registering either type of rights of common. Consequently, the stability of the right of common as a servitude was contingent upon the continuous, active use of forestlands and the tacit approval of state or private landowners. The registration of common land ownership title was impeded by the lack of legal entity status for traditional villages or commoners’ group units. If the ownership of the common land was registered under the individual name of the village representative, there was a risk that the land could be sold without the villagers’ consent. Therefore, in many cases, it was registered as joint ownership under the names of all the villagers. This method was believed to prevent the common land from being taken by anyone. However, it has led to an “anti-commons” situation today. This paper focuses on the current state of common forests which are registered by multiple co-owners and does not address servitude-based rights to commons.
The issues associated with multiple co-owners titles also exist in common lands of other countries (Vasile, Reference Vasile2018), making it significant to shed light on Japan’s current situation.
2.4. Unofficial local customs and legal rules made by case law
The Civil Code’s provisions on rights of common are exceedingly simple, stipulating only that both types of rights of common are “subjects to local customs.” This simplicity does not stem from a respect for diverse customs but rather from a lack of consensus among the drafters of the Civil Code on how to define and regulate rights of common. In the early days, courts had differing interpretations of rights of common, often leading to their rejection in judicial decisions (Takamura, Kozumi and Yamashita, Reference Takamura, Kozumi and Yamashita2023, p. 59). The strong protection afforded to rights of common in case law emerged as a legacy of numerous legal battles (Kawashima, Reference Kawashima1983, pp. 64–7).
Two types of disputes frequently arose regarding the right of common as co-ownership. The first type occurred when the registered owner of the common land was an individual. In such cases, it was common for the land to be sold without the consent of the commoners, leading the new landowner to exclude them from using the land. When commoners filed lawsuits to nullify these sales, courts often ruled that, even if the new owner claimed to be unaware of the rights of common due to their absence from the registry, they were not protected as a bona fide third party, and the sale was invalidated. The second type involved land registered as jointly owned by multiple villagers. Here, disputes arose when an individual sought to partition the common land based on their registered ownership share. However, when courts recognized that the land was subject to customary rights, such claims for partition were deemed unenforceable. Thus, case law established that while rights of common were unregistrable, they could still be enforced against third parties relying on registry records.
Next, the methods for proving rights of common will be explained. Disputes concerning rights of common were handled in ordinary civil courts. Initially, the evidentiary requirements for proving rights of common in case law were stringent. Early cases demanded official documentation proving village ownership during the early modern period, which was nearly impossible to provide (Kaino, Reference Kaino1943). However, as a result of successive legal victories that overturned previous precedents, courts began accepting proof of continuous use of common land as sufficient evidence, making it easier to prove customary rights (Kawashima, Reference Kawashima1983, p. 99).
The evolution of the content of rights of common is also noteworthy. In early case law, the content of rights of common, being customary in nature, was limited to traditional uses, such as gathering grasses and shrubs. However, over time, new uses such as firewood collection and artificial afforestation were also recognized as part of the content of rights of common. Today’s case law and legal doctrine have expanded the scope of rights of common to include activities such as leasing common lands to third parties through contracts and leaving the common lands unused for the purpose of environmental conservation, which is seen as producing ecological benefits for commoners (Kawashima, Reference Kawashima1983, p. 82; Nakao, Reference Nakao2003).
What kind of legal postulates lay behind the judges’ decisions of prioritizing rights of common over official registration and extending the content of those rights as described above? This paper does not attempt to provide a definitive answer to this question. However, since the provisions of the Civil Code delegated the content of rights of common to local custom, it is thought that recognizing customary rights of common was not perceived by judges as a conflict between official and unofficial laws. Legal doctrine proposed by socio-legal scholars also contributed to the acknowledgement and extension of rights of common. Nevertheless, because rights of common could not be registered, the only way to protect those rights was to continuously resort to litigation. In that sense, the rights of common remained unstable thereafter.
2.5. Joint name registration as a means to escape from public land taking
Despite the Civil Code protection of rights of common, the National Forestry Agency adopted policies to deny these rights and incorporate common lands into public ownership. It was argued that common lands led to the “tragedy of the commons” (Hardin, Reference Hardin1968), resulting in overuse of resources, deforestation, and increased flood risks. As the use of grass as fertilizer was declining, public ownership was seen as a way for local governments to engage in afforestation in order to meet wartime demands for timber.
When common lands were fortunate to receive land certificates (Chiken) through land tax reform from 1893, the receiver’s names were often the names of villages of the early modern period. However, since early modern villages were not legal entities, ownership could not be registered in the real property registry under such names. However, the Real Property Registration Act of 1899 treated ownership title registration as a right rather than an obligation (Kaneko, Reference Kaneko2024, p. 111). This was linked to opposability principle of Japanese law, where registration served only as a prerequisite for asserting ownership against competing claims and not as a requirement for the validity of ownership itself. As a result, many common lands received land certificates under former village names and remained without ownership title registration unless there was a need for it.
From 1909 to 1939, a policy to unify the ownership of common forest lands into municipal property continued. This initiative was based on the doctrine that, as former villages had become part of municipalities, their assets should also belong to the municipalities. Approximately two-thirds of the common lands that received land certificates under former village names were incorporated into municipal property during this period. The remaining third were successfully changed to the joint names of all the villagers after persuading the municipality. The preference for joint name stemmed from the belief that such registration made the lands less susceptible to being taken away.
After World War II, a 1947 Potsdam Ordinance prompted further conversions of common lands whose land certificates are former village names into municipal property. This also led to transitions to joint name title registration in many cases to escape from public taking. However, due to the ordinance’s ambiguous provisions, many common lands remained under their village names.
2.6. Modernization act of common forests and grasslands in 1966
After World War II, the research of sociology of law became active as part of the efforts to democratize Japanese society. The social survey on rights of common was actively conducted, as it also served to observe the political power structures in pre-modern rural villages (Kawashima, Reference Kawashima1983, pp. 312–5).
With the increasing demand for timber for post-war reconstruction, the National Forestry Agency believed that dividing large areas of common land into individual ownership would enhance the incentive for afforestation and thereby promote its progress. Supported by influential sociologists of law (Kawashima, Reference Kawashima1983), this policy led to the enactment of the Modernization Act of Common Forests and Grasslands in 1966, which aims to abolish rights of common and resolve the irregularities in the registration titles of common lands (Takahashi et al., Reference Takahashi, Matsushita, Yoshida and Senda2019, p. 1022). If the common land registration remained under ancient individual name or joint name of ancient villagers, or under the early modern village name without ownership title registration, it could not be sold or used for establishing real property rights, such as a mortgage right and a right of superficies. Under the Modernization Act, while rights of common were abolished, administrative measures granted full ownership rights to the local people who previously held such customary rights. Villages were allowed to decide whether to divide the land into individual ownership or manage it collectively as a cooperative. Proof of the existence of rights of common could be provided by creating a certificate among the commoners. If there were no disputes within the village, the government recognized these rights.
However, only about one-third of the common lands were converted into modern ownership rights through this law (Ibid). The remaining common lands were left as they were, since there was little necessity to reorganize the ownership title registration unless there was a need to sell the land or establish other property rights.
2.7. Recent legal reforms addressing the issue of land with unknown owners
In recent years, land with outdated or irregular registration has become a major issue, categorized as “land with unknown owners” (Kaneko, Reference Kaneko2024, p. 115). The total area of such land is estimated to be equivalent to the size of Kyushu Region, 20% of the total national land surface. While much of such land consists of individual property left unregistered following inheritance, common lands are estimated to account for one-third of the total and are regarded as unmanaged and abandoned (The Tokyo Foundation, 2014, p. 12).
The Act on Proper Handling of Land with Unknown Ownership, enacted in 2018, aims to resolve irregular registrations through the initiative of the Legal Affairs Bureau. This includes addressing cases where ownership remains unregistered or where land certificates are still held under the names of early modern villages, which have no ownership title registration. To prove the existence of rights of common on such lands, it is necessary to demonstrate all the villagers’ names who should have received land certificates instead of early modern village during the Land Tax Reform era and obtain a certificate from the mayor attesting to the continuity of the customary rights of common. Given the extreme difficulty of providing such evidence, it is unlikely that land ownership will be granted to commoner’s groups under this law.
Since 2023, inheritance registration has been made mandatory, with penalties for non-compliance. This has raised concerns about its potential impact on common lands held under old joint name, causing unrest for the groups of commoners (Kaneko, Reference Kaneko2024, pp. 116–8). However, strictly speaking from legal interpretation perspective, the rights of common and joint shares held by commoners are not personal assets subject to inheritance. Instead, these rights arise from membership status in a group of commoners. The registered individuals were delegated this position by the original group of commoners, and their names in the register are nominal. Therefore, requiring inheritance registration for jointly owned lands with rights of common and imposing penalties for non-registration is a misinterpretation. We have emphasized this point (Takamura, Kozumi and Yamashita, Reference Takamura, Kozumi and Yamashita2023, p. 14).
Nevertheless, as people increasingly perceive official registration rather than unofficial customary rights as the definitive basis of ownership, such legal interpretation, while theoretically correct, risks diverging from the reality of people’s legal perception.
2.8. The characteristics of rights of common in Japan
As outlined above, the legal history of rights of common in Japan is characterized by the fact that, while these rights have been protected under the Civil Code and judicial precedents, they have consistently remained unregistrable. The emergence of titles with multiple co-owners’ names was a strategy to avoid public land acquisition. However, these common lands have become problematic as “lands with unknown owners,” prompting legal reforms initiated by the central government to address this issue.
How do ordinary people perceive these lands where rights of common exist? Do they prioritize official registration system or unofficial customary rights? What kind of reasoning underpins their thoughts and choices? These are the questions this paper aims to explore.
3. Literature review
In this chapter, through a literature review, we will examine whether customary rights are experiencing a revival in Japan, how the anti-commons problem is associated with common lands under multiple co-owners’ names, and what a compliance-oriented legalized society entails. Subsequently, the objectives and significance of this research are clarified.
3.1. Customary rights in revival?—Current situation of Japanese common forests
Here, we examine whether customary rights in revival are emerging in Japan’s common forests from the perspective of resource utilization. Recent legal reforms have problematized common forests as abandoned areas with unknown owners. On the other hand, studies of the commons have highlighted cases where such forests are well-managed by local commoners (McKean, Reference McKean1982; McKean, Reference McKean and Bromley1992; Shimada, Reference Shimada2014). However, common forests are generally characterized as underused, with their revival envisioned as spaces for environmental education through external collaboration (Hirahara, Reference Hirahara2020).
In practice, many common forests were artificially reforested after 1960, when commoners stopped harvesting resources for their livelihoods (Takamura, Kozumi and Yamashita, Reference Takamura, Kozumi and Yamashita2023, pp. 82–90). In Japan, artificial forests have traditionally been densely planted and managed through periodic thinning as part of standard forestry practices. However, since the 1990s, declining timber prices have led to a significant reduction in thinning activities, not only in common forests but also in privately and corporately owned forests. When thinning is neglected, forests become overly dense, leading to reduced biodiversity, decreased water retention capacity, and heightened vulnerability to natural disasters (Onda et al., Reference Onda, Gomi, Mizugaki, Nonoda and Sidle2010).
To address these challenges, a subsidy policy has been implemented to provide financial support for creating “forest management plans,” which involve thinning operations across large areas of a mountain. In practice, it is not the groups of commoners but rather forestry cooperatives—municipal-level professional organizations equipped with large-scale machinery—that draft these plans and carry out the thinning work.
The case study of Kyushu region highlighted the economies of scale in the large area of common forests that remain undivided among individuals (Sato, Reference Sato2015). It reported cases where, during the formulation of forest management plans by forestry cooperatives, the initial agreement by a group of commoners facilitated the integration of surrounding small privately owned forests, leading to the successful establishment of the plans. Building on Sato’s findings, our previous book argued that even if groups of commoners do not carry out the labour themselves, they can still sustain co-management based on rights of common by contributing to consensus-building for forest management plans and effectively delegating tasks to external entities (Takamura, Kozumi and Yamashita, Reference Takamura, Kozumi and Yamashita2023, pp. 115–6).
This paper aims to examine whether such scale-merit effects can be generalized through a nationwide survey of forestry cooperatives.
3.2. The tragedy of the anti-commons and the conditions under which it arises
Even if common forests have scale merits, the emergence of anti-commons situations can make their use difficult. The anti-commons refers to a situation where property rights are excessively fragmented, resulting in numerous co-owners of a single piece of land (Heller, Reference Heller1998, p. 624). In such cases, unanimous consent from all co-owners is required to change the land’s use or establish legal relationships. This is often difficult to achieve, leading to the tragedy of the anti-commons, where the land remains idle and may even pose harm to its surroundings (Heller, Reference Heller1998, p. 624).
Under Japanese law, ownership rights are not extinguished through non-use or failure to register, and upon the owner’s death, the ownership is automatically inherited as co-ownership among the heirs. Consequently, if a common forest remains registered in the names of all villagers from over 100 years ago, their current heirs could number over 1,000 and be scattered across various locations (Takamura et al., Reference Takamura, Nishide, Kanazawa and Hayashi2021, p. 260). In such cases, it becomes difficult to locate all co-owners and obtain their cooperation for changing the registered ownership title or their consent for establishing legal relationships.
There are cases where groups of commoners have used litigation to reclaim rights from external heirs (Takahashi, Matsushita and Nishimura, Reference Takahashi, Matsushita and Nishimura2020). However, as legalization progresses and the influence of official registration grows stronger, ownership of common land increasingly comes to be recognized as belonging not to the current local inhabitants holding rights of common but to the countless heirs (Takamura et al., Reference Takamura, Nishide, Kanazawa and Hayashi2021, p. 262).
Our previous article, using census data from 2000, demonstrated that in common forests with multiple co-owners’ name titles, where rights are retained by former villagers who have left the village, the tragedy of the anti-commons occurs, leading to a decline in forestry activities and a reduction in external delegation of such tasks (Takamura et al., Reference Takamura, Nishide, Kanazawa and Hayashi2021). However, we also found that even under other types of registration, when former villagers retain rights, similar declines in forestry activities and delegation occur. Since no interaction effect between multiple co-owners’ name titles and the retention of rights by former villagers was observed, the results did not fully align with the theory of the anti-commons tragedy.
Epstein argues that Heller’s tragedy of the anti-commons is exaggerated (Epstein, Reference Epstein2011). Barnett, in his socio-historical study of American intellectual property law, argued that the tragedy of the anti-commons has not occurred because, when formal patent licences could not be obtained, alternative technologies were utilized, and industry associations informally created patent pools to enable the mutual use of technologies (Barnett, Reference Barnett2015). This demonstrates that when the formal process of obtaining patent licences can be bypassed, the anti-commons do not materialize. Similarly, if official registration can also be circumvented, there is a possibility that the anti-commons might not arise in such cases. Therefore, this paper aims to study these aspects in detail through a forestry cooperative survey conducted in 2024.
3.3. Compliance-oriented legalization
Reversing the above statement, if people begin to perceive official registration as more legitimate than customary rights of common, the anti-commons are likely to arise. However, if commoners themselves adopt this perspective, it could be argued that the rights of common have effectively ceased to exist. While such cases are increasing, they fall outside the scope of this paper. What this paper addresses is the following situation.
Even when rights of common persist in people’s perceptions, the growing number of official procedures that require proof of land ownership based on registration will cause the anti-commons problem. In recent years in Japan, registration records have increasingly been used to verify that the true owner of the logging site is the one submitting logging permits to municipalities. Similarly, when applying for the approval of forest management plans to prefectural governments, registration records are used to confirm that the applicant is the true owner of planned area (Takamura, Kozumi and Yamashita, Reference Takamura, Kozumi and Yamashita2023, p. 108). If a forestry cooperative conducts logging without submitting the required permits, it constitutes illegal logging, and businesses purchasing such timber are also classified as illegal company. While using registration to verify ownership is effective in preventing illegal logging and timber theft, it creates a situation where logging cannot legally occur in common forests with irregular registration. When ownership cannot be verified through registration, official procedures become inaccessible, and prioritizing customary rights over registration is deemed non-compliant in today’s legal world.
This shift in Japanese society can be described as the advent of a compliance-oriented legalization. Legalization is a key concept in the sociology of law. Habermas defined legalization (Verrechtlichung) as the phenomenon where the expansion and increase of administrative regulations accompanying the welfare state lead to the colonization of the lifeworld (Habermas, Reference Habermas and Teubner1986, p. 204). As welfare states declined, the concept of legalization fell out of common use, replaced by the concept of compliance.
Compliance refers to a shift where, instead of the state imposing laws in an interventionist manner, organizations voluntarily adopt lawful behaviour, regulating their actions in accordance with legal norms. Thus, compliance is understood not only as adherence to official law, but also as following organizational rules, and is viewed as the interaction between rules and behaviour (Rorie and van Rooij, Reference Rorie and van Rooij2022, p. 3). In the compliance-oriented legalized society addressed in this paper, organizations are compelled to rely on the official legal system of registration as proof of legal compliance, making their actions heteronomous rather than autonomous.
Conversely, if more emphasis is placed on unofficial customary rights rather than official legal systems with the flexibility in the application of legal rules, it suggests that a compliance-oriented legalized society has not yet fully permeated Japan. In this case, it would imply the continued presence of the legal postulate emphasizing flexibility, as described by Chiba (Chiba, Reference Chiba1986, p. 355). Edelman and Talesh similarly argued that compliance does not merely mean adhering to external legal regulations but involves a process where the law is internalized and shaped in alignment with an organization’s strategies (Edelman and Talesh, Reference Edelman, Talesh, Parker and Nielsen2012, pp. 113–4).
3.4. Research objective and significance of this paper
Based on the literature review conducted thus far, we will outline the research objective and significance of this paper. This paper examines cases where rights of common exist and forests are managed by village-communities, yet the registration remains under outdated multiple co-owner’s name titles. In situations where official procedures and legal contracts are required to utilize such common forests, do commoners, municipal officials, and forestry cooperatives prioritize registration and seek consent from all heirs of registered co-owners, thereby falling into the anti-commons problem? Or do they instead prioritize the substantive significance of unofficial customary rights and flexibly apply legal rules? The research objective of this paper is to clarify these questions through multiple research methods.
Through this analysis, we will consider whether a compliance-oriented legalized society is advancing in Japan and what characteristics this legalization phenomenon exhibits. This exploration has a research significance for the sociology of law, which has long studied the phenomenon of legalization.
4. Methods
4.1. Mixed methods research
When official law and unofficial law come into conflict, what legal postulates underpin their reconciliation? To empirically clarify this, it is necessary to conduct investigations across multiple actors, dividing the research into distinct phases. To this end, a sequential mixed-methods approach was adopted. First, qualitative research was conducted through interviews with commoners and municipal officials. Then, quantitative research was carried out via questionnaire surveys targeting forestry cooperatives, which are entrusted with the management of common forests.
4.2. Qualitative research method
To explore how ordinary people perceive registration and customary rights today and how they utilize and manage common forests, interviews are an appropriate method. This approach is also suitable for examining how municipal officials handle conflicts between registration and customary rights.
This study examines two villages in Kyoto Prefecture as case studies. The first is Village A in the Miyama area of Nantan City, where interviews were conducted with a representative of the commoners in September 2018 and September 2019. The second is Village B in neighbouring Ayabe City, where interviews were held with commoners in August 2023 and with municipal officials responsible for forestry in February and August 2023.
All interviews were conducted using a semi-structured format to elicit the interviewees’ thoughts and perspectives.
4.3. Questionnaire survey method
A questionnaire survey was conducted targeting all forestry cooperatives across Japan.
Forestry cooperatives are organizations formed by forest owners. The general meetings, which determine the cooperative’s business activities and policies as well as approve budgets, are composed of these forest owners. However, forestry cooperatives employ professional staff, own large machinery, and primarily carry out forestry operations entrusted to them by forest owners. The jurisdiction of forestry cooperatives often aligns with municipal boundaries, encompassing privately owned forests within their jurisdiction areas.
Although forestry cooperatives are private legal entities, they were compulsorily established before World War II, requiring all forest owners to adhere to their forestry guidance. Due to this historical background, they are still perceived as semi-public organizations. Forestry cooperatives are responsible for drafting forest management plans, which are essential for obtaining subsidies from prefectural governments.
Forest management plans aim to involve all plots of a given mountain. Forestry cooperatives organize explanatory meetings with individual owners and commoners to foster consensus to join the plan. Once the plan is approved by the prefecture, forestry cooperatives carry out thinning operations on behalf of the forest owners, relying on subsidies. Recently, as artificial forests have matured, clear-cutting to generate revenue has become more common, and this task is also delegated to forestry cooperatives.
The questionnaire asked whether, in cases where common forests are owned by village communities but remain registered under outdated co-owner’s names titles, the cooperatives prioritize official registration by obtaining consent from all heirs of the registered co-owners or prioritize unofficial customary rights by accepting consent from current representatives of the village community.
The survey was conducted in February 2024. Questionnaires were mailed to all 603 forestry cooperatives nationwide, and respondents had the option to reply either by mail or online. The number of valid responses was 330, resulting in a valid response rate of 54.7%. However, some forestry cooperatives reported having no common forests within their jurisdiction. Consequently, the data analysis focuses on the 308 cases where cooperatives reported the existence of common forests.
4.4. Theory and hypothesis
We explain the theory and hypothesis underlying the design of the questionnaire survey. When official registration is prioritized over customary rights, the tragedy of the anti-commons may occur, making the use of common forests difficult and worsening their management condition. Therefore, the survey was designed to test the theory that prioritizing registration leads to the deterioration of common forest management. As a working hypothesis to test this theory, it was proposed that forestry cooperatives placing greater emphasis on registration are more likely to struggle with registration-related issues in common forests, resulting in poorer management of these forests. Following the presentation of qualitative research findings, this hypothesis will be tested through regression analysis.
5. Results
5.1. How commoners and municipal officials perceive registration and customary rights
From the qualitative research of the two villages, we examine how registration and customary rights are perceived today.
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a) The case of Village A, where the forest management plan brought the registration issue to light for the first time.
The first case is Village A in Miyama. Miyama is a mountainous region with limited farmland, where inhabitants made their living by selling firewood and charcoal before the energy revolution. The H district of Miyama consists of ten village-communities. Among them, Village A is the only one where the common forests remain registered under the names of all villagers of 110 years ago. Village A currently consists of 24 households, 17 of which are long-standing households who, as commoners, collectively own 55 hectares of common forests.
After the need for firewood and charcoal declined, the village engaged in reforestation. When the village needed funds, they harvested timber for income. Until 15 years ago, matsutake mushrooms could be harvested in their common forest. The village-community conducted auctions, allowing mushroom gatherers to bid for access, and the proceeds became village revenue. However, after matsutake mushrooms ceased to grow, commoners stopped entering the common forest. Currently, the management of the common forest has been entrusted to the forestry cooperative of Miyama and the Kyoto Prefectural Government.
The common forests are divided into three plots. One remains under the old co-ownership title. The other two plots were originally titled under the village community and all villagers’ name, but in 1980, when long-term management rights were granted to the Kyoto Prefecture Forestry Corporation through the establishment of surface rights, the ownership title was consolidated under a few representative co-owners of this village-community. This smaller group of representatives has maintained the titles by updating them upon the death or replacement of the titleholders, so no legal issues have arisen with these plots.
The reason why the old co-ownership title remains unchanged for one plot is unclear. Within the villagers, it was considered that this plot belongs to the village-community as whole and changing the registration titles would create a sense of divisible shared ownership rights, so title renewals were prohibited. Additionally, according to the village agreement, those who leave the village lose their rights of common, meaning that the heirs of the original co-owners in the registration record hold no rights. Therefore, until recently, the villagers did not perceive the state of the registration as an issue.
However, about ten years ago, when plans progressed to include this plot in a forest management plan and have the forestry cooperative manage it using subsidies, the registration state became an issue. Forestry cooperative staff advised them that, to have the plan approved and receive subsidies, it would be better to update and regularize the registration title. As a result, the village consulted a judicial scrivener and began exploring the regularization. However, it was concluded that the heirs, numbering over several hundred and scattered across various regions, would be extremely difficult to locate, and gaining their cooperation for a title change would be highly difficult. Upon consulting with the forestry cooperative, they discovered that an alternative subsidy programme did not require ownership verification through registration. Using this programme, the village entrusted the forestry cooperative with thinning operations. The registration title remains unchanged to this day, and while the village leader is concerned about this, he stated that there is no solution available.
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b) The case of Village B, where the search for heirs led to the decision to bypass registration in the future.
Next, we examine the case of Village B in Ayabe City. In Village B, there is a common forest that has remained registered under multiple co-owners’ titles for 120 years. While it is an artificially planted forest, none of the current inhabitants are able to enter the forest to manage it. Consequently, this common forest, along with surrounding privately owned forests, was entrusted to Ayabe City for management under the 2018 Forest Management and Administration Act.
This law, introduced as a measure to address the issue of unknown landowners, includes a special provision allowing the mayor to consent to the establishment of management rights on behalf of unknown co-owners if some heirs cannot be identified. Village B became the first case to utilize this special provision.
However, the provision requires obtaining consent from all heirs who can be contacted regarding the establishment of management rights. As a result, the city searched for nearly 140 heirs across regions to seek their consent. Many of these heirs, separated by four or five generations, were unaware of Ayabe City or that their ancestors had roots there. Some refused to consent, stating that they could not agree to the establishment of management rights in a place they knew nothing about, or that they could not accept being treated as owners. Due to the risk of fallen trees blocking a nearby prefectural road, the prefectural governor eventually issued a special order under the provision to establish management rights.
Because completing all the procedures takes nearly three years, the municipal official responsible for these tasks expressed reluctance to undertake such a challenging search process again. For similar cases in the future, he suggested the following approach: first, develop a forest management plan for adjacent land with no registration issues and have it approved by the prefecture, then add the problematic land to the plan later, avoiding detailed scrutiny. This method would enable the official approval of forest management without the complications of verifying ownership.
The local inhabitants of Village B stated that they had never been conscious of the registration status of this common forest. They also expressed regret that their request for the city to manage the common forest had resulted in such a burdensome process.
As described above, in both villages, commoners no longer directly utilize common forests as an exercise of customary rights. Consequently, the legal consciousness that they have the customary rights has weakened, leaving them unable to oppose or resist when the forestry cooperative or municipality requests registration updates or prioritize the will of heirs over that of the commoners. However, tracing heirs from registration records requires significant effort, and the heirs asked for consent often lack any sense of ownership. This leads municipal officials to question why so much emphasis must be placed on official registration, ultimately opting for alternative methods that bypass official legal procedures.
5.2. The current state of common forests from the perspective of forestry cooperatives
Is such behaviour of bypassing official legal procedures and on the management of common forests observed nationwide? This question will be analysed using data from the forestry cooperative survey.
First, we examine how the existence of common forests is perceived and how their management condition is evaluated by forestry cooperatives. Table 1 presents the responses to related questions.
Table 1. Perceptions and evaluations about common forests by forestry cooperatives (n = 308)
The legal reforms addressing the issue of unknown landowners have problematized that common forests are unmanaged and left abandoned. However, the proportion of positive responses indicating that common forests are appropriately thinned and managed under forest management plans exceeds those suggesting neglect (Q1). Additionally, the proportion of responses indicating that low interest among commoners prevents the incorporation of common forests into forest management plans is relatively small (Q2).
The large area size of common forests receives high evaluations for providing economies of scale when incorporated into forest management plans (Q3). Similarly, there are high evaluations for the effectiveness of integrating privately owned forests into the same plan (Q4). As shown in the correlation coefficient analysis in Table 2, these evaluations of scale merits and spatial integration function tend to be higher in forestry cooperatives with a larger ratio of common forest area within their jurisdiction.
Table 2. Correlation coefficient analysis on the ratio of common forest area and evaluations (n = 308)
NOTE: **P < 0.01, *P < 0.05.
5.3. Which does the forestry cooperative prioritize: registration or customary rights?
Next, we will explore how issues related to the registration of common forests are perceived and whether priority is given to official registration or unofficial customary rights. In response to Question 5 in Table 1, “Common forests difficult to manage due to registration issues?” the affirmative and negative responses are nearly equal.
Table 3 presents the results of questions regarding the legal relationships that forestry cooperatives establish with common forests. We asked whether, in cases where common forests have long been effectively owned by a village-community but remain registered under outdated co-ownership titles with many co-owners deceased or having left the village, forestry cooperatives obtain consent from the current representative of commoners or trace all heirs through registration to secure consent from all of them.
Table 3. From whom does the forestry cooperative obtain consent and signature for legal actions or operations involving common forests?
Despite the rise in compliance awareness and the increased emphasis on registration, the results show the existence of flexibility to handle the issue of registration. Over 65% of forestry cooperatives reports relying on consent and signatures from representatives of commoners when formulating forest management plans or entering into contracts for other tasks.
However, in cases of clear-cutting, the proportion of responses indicating reliance on the representative’s consent and signature drops below 50%, while the proportion of responses to obtain consent from all heirs increases. This may be because clear-cutting requires forestry cooperatives to submit logging permits to municipalities, accompanied by registration records proving that the mandate was granted by the true owners. Additionally, clear-cutting involves profit distribution and represents a transition from property management to property disposal, which may necessitate more meticulous consent procedures.
Nonetheless, as the majority of forestry cooperatives still reported accepting signatures solely from village representatives even for clear-cutting, it suggests that many cases effectively bypass official legal procedures and circumvent registration.
5.4. The consequences of prioritizing registration
As shown in Table 3, forestry cooperatives differ in whether they prioritize ownership recorded in the registration or customary rights. This allows us to test, through regression analysis, the theory that prioritizing registration leads to the deterioration of common forest management.
In response to the questions in Table 3, the number of cases where consent was obtained from all heirs was totalled to create a variable representing the frequency of situations in which registration was prioritized. This variable corresponds to the theoretical variable of an attitude emphasizing official registration. The purpose of the ordinal regression analysis in Table 4 is to test the working hypothesis that forestry cooperatives prioritizing registration would perceive registration-related issues in common forests as more difficult, leading to inadequate management conditions of common forests and a stronger tendency to rely on the government to resolve such issues.
Table 4. Ordinal regression analysis on the impact of prioritizing registration on the management and treatment of common forests (n = 239)
NOTE: **P < 0.01, *P < 0.05.
Since larger forestry cooperatives with more staff have greater resources to address registration-related issues and manage common forests, these variables, along with the ratio of common forest area, were included as control variables.
Table 4 presents statistically significant regression coefficients indicating that as the degree of emphasis on registration increases, registration-related issues are perceived as more difficult, and responses indicating that common forests are being appropriately managed decrease. These results support the working hypothesis.
The slightly low model fit and regression coefficients may be related to the fact that forestry cooperatives emphasizing registration do so across all legal situations, which might have affected the effectiveness of the explanatory variable “degree of emphasis on registration” as a quantitative variable. Furthermore, factors not included in the questionnaire, such as timber demand strength, the size of forest management plan budgets, the strictness of legal document reviews, and the accumulated experience of commoners in managing common forests, are likely to affect the quality of forest management. Since a model excluding these variables inevitably has limited explanatory power, future analyses should incorporate these factors for more robust results.
A stronger emphasis on registration was found to correlate with a stronger support for the idea that the government should relax the conditions for acquiring forest land. This indicates that an attitude dependent on official law is strongly associated with a tendency to expect the state to manage difficult lands.
6. Discussion
We will explain the significance of our findings in two key points, followed by an explanation of their relevance to the special issue and the study’s limitations.
6.1. Conditional nature of the tragedy of anti-commons
First, the results show that the tragedy of the anti-commons does not always occur but arises when registration is prioritized. Conversely, forestry cooperatives that do not emphasize registration were found to exhibit flexibility by valuing customary rights. This may explain why our previous article did not yield strong results consistent with the anti-commons theory (Takamura et al., Reference Takamura, Nishide, Kanazawa and Hayashi2021).
Similar to Barnett’s thesis, which demonstrated that the anti-commons issue is mitigated when patent licences are circumvented (Barnett, Reference Barnett2015), this paper shows that when registration is bypassed, the anti-commons problem in common forests does not become significant. This finding holds important implications for comparative research on the anti-commons.
6.2. The effect of preventing and resolving land fragmentation in common forests
Second, it was found that many forestry cooperatives prioritize customary rights, and their evaluations of the management condition of common forests are generally high. This finding revises the framing of the unknown landowner issue, which has characterized common forests as abandoned (The Tokyo Foundation, 2014).
Commons study scholars emphasized the benefits of commoners collectively managing commons through cooperative labour (McKean, Reference McKean1982, p. 82; Ostrom, Reference Ostrom1990, p. 68). This paper demonstrates that, in contemporary Japan, common forests derive their strengths from being managed by forestry cooperatives. These strengths include their large, undivided areas, which facilitate the integration of fragmented private forests into unified management plans. The identification of these economies of scale and their role in mitigating land fragmentation provides a significant contribution to the study of the commons (Ostrom, Reference Ostrom1990).
6.3. Are customary rights experiencing a revival?
On the contrary, it cannot be said that customary rights are undergoing a revival. Due to the absence of active utilization, commoners have little choice but to comply with forestry cooperatives and municipal officials who prioritize registration. As predicted by the regression analysis, if the compliance-oriented legalized society continues to advance, the increasing emphasis on registration will likely lead to difficulties in handling registration-related issues and result in the deterioration of common forest management.
6.4. What legal postulate is at play?
What insights can be drawn regarding the legal postulates that underpin conflicts between official and unofficial law? This paper reframes such conflicts as those between official registration and customary rights and observes which is prioritized when establishing legal relationships for management delegation of common forest. While the survey did not directly ask why one was prioritized over the other, and thus did not elucidate thought patterns, the qualitative research revealed that prioritizing registration, such as attempting to update titles or obtain consent from all heirs, involved significant transaction costs. Consequently, municipality began bypassing registration and opted for resolutions based on customary rights. This suggests that the primary consideration was the magnitude of transaction costs, and rational decision-making, rather than the amoeba-like thinking described by Chiba, was at play (Chiba, Reference Chiba1986, p. 355).
6.5. Research limitations
We will explain the limitations of this research.
In this paper, we were able to show that many forestry cooperatives circumvent registration and prioritize customary rights. However, our survey did not investigate the underlying beliefs driving such behaviour. It remains to be examined whether these actions are based on trust in customary rights, a lack of knowledge about recent laws, or, as American socio-legal scholars suggested, represent strategic and endogenous actions taken with full awareness of the law (Edelman and Talesh, Reference Edelman, Talesh, Parker and Nielsen2012). Further research is necessary to clarify this aspect.
Additionally, we could not clarify how forestry cooperatives bypass official legal procedures to obtain logging permissions and approve forest management plans. Sequential qualitative research is needed to address these points, as well as investigations into how municipalities and prefectures handle logging permissions and plan approvals for common forests with registration issues.
Furthermore, the data analysis did not clearly show which types of cooperatives prioritize registration. If this becomes clear, it will contribute to understanding the factors that advance a compliance-oriented legalized society, making it significantly meaningful for the sociology of law.
7. Conclusion
The objective of this paper was to explore legal postulates in cases where official and unofficial law conflict in land disputes, using Chiba’s theory of three dichotomies of law. Such conflicting situations exist in other countries as well. It makes legal postulates an important analytical concept for exploring legal culture (Lukito, Reference Lukito2023, p. 3).
However, there are difficulties in empirically identifying what legal postulates exist. The analysis of Chiba is essay-like and falls into cultural determination with trans-historical generalizations, suggesting that natural law, justice, and equity are legal postulates in the West, while Japan lacks clear ones (Chiba, Reference Chiba1986, p. 351).
In contrast, rational choice theory rationally explains why people make choices based on the co-existence of various institutions (Ostrom, Reference Ostrom1990, p. 211). This paper considers that what differs by country is the content and combination of formal and informal institutions, not modes of thinking. In the field covered by this paper, reliance on informal institutions was chosen because excessive dependence on formal institutions would result in high transaction costs. If ignoring formal institutions increases the possibility of being sanctioned for compliance violations, the choices would likely change. This paper does not intend to generalize this kind of calculative thinking as a characteristic of Japanese legal thought. Because even within the same country, the content and combination of institutions will differ depending on the field in question and can influence the available choices.
The characteristic of Japanese rights of common lies in the fact that while formal law recognizes them as customary rights, no means of registration has been provided throughout history. As this situation has continued to the present day, the progression towards a compliance-oriented legalized society will result in a phenomenon where common forests without proper registration cannot be utilized.
It is not desirable for common forests to become unusable. Thus, our previous book proposed means to register titles of ownership for commoners’ groups, arguing that this was not due to a revival of customary rights, but because the progression of compliance-oriented legalization was creating practical inconveniences for common forests (Takamura, Kozumi and Yamashita, Reference Takamura, Kozumi and Yamashita2023, p. 357). We can conclude that the significance of rights of common in today’s Japan lies in their function of correcting the practice of treating the heirs of registered co-owners as the true owners. While this paper has found that such inconveniences have not yet become severe, proper registration of common forests remains crucial to avoid future complications.
Therefore, legal research aimed at enabling the registration of rights of common and social scientific research focused on understanding the factors driving a compliance-oriented legalization need to develop in tandem.
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