Law And Society In Imperial Japan

The Ritual of Rights in Japan challenges the conventional wisdom that the assertion of rights is fundamentally incompatible with Japanese legal, political and social norms. It discusses the creation of a Japanese translation of the word 'rights', Kenri; examines the historical record for words and concepts similar to 'rights'; and highlights the move towards recognising patients' rights in the 1960s and 1970s. Two policy studies are central to the book. One concentrates on Japan's 1989 AIDS Prevention Act, and the other examines the protracted controversy over whether brain death should become a legal definition of death. Rejecting conventional accounts that recourse to rights is less important to resolving disputes than other cultural forms,The Ritual of Rights in Japan uses these contemporary cases to argue that the invocation of rights is a critical aspect of how conflicts are articulated and resolved.

Japan's modern written law is Western. However, this law operates in a society whose values are pre-Western. In order to understand the function of modern law one has to study older systems of law as well. The main phases of Japan's pre-modern legal development are first, the indigenous customary law of the Yamato state. Next, the import and adaptation of Chinese codes from the 7th century onwards. Third, the use of Chinese legal techniques to bring order to the indigenous feudal law, culminating in the thirteenth century, and leading to the independence of Japan's legal system from that of China. Fourth, the mature system of written law and custom of the Tokugawa state. It is owing to the existence of well-functioning channels of law that Japan was able to modernise rapidly.

In Japan in the 1920s and 1930s, a brief flowering of democratic, populist spirit began to give way to a state-centric imperial episteme in which all politics was warped to fit the gravity field of the kokutai, or indefinable national essence. This dissertation examines how the Japanese law-and-society movement, founded in the 1920s by a small coterie of scholars recently returned from studying with legal pragmatists and “living law” sociolegal advocates in Europe and the United States, eventually came to drop its fundamental opposition to positivism and statism and participate in the expansion and administration of the Japanese empire. My dissertation focuses on Suehiro Izutarō—who, along with Hozumi Shigetō, pioneered the law-and-society movement in Japan—and his gradual turn, under intense criticism from kokutai advocates such as Minoda Muneki for not sufficiently following the dictates of the state at the time of Japan’s “national emergency” of the early 1930s, from champion of a separate legal sphere for the proletariat to a leader in the fusing of the people and the state into one imperial phalanx. One of the keys of my dissertation is its indexing of the Japanese law-and-society’s movement into greater cooperation with the imperial state against the movement’s inherent turn away from the natural law. As Catholic legal philosopher Tanaka Kōtarō pointed out, both positivism and legal realism were, ultimately, equally adaptable to statist projects because both lacked any real intellectual equipment for taking into account the justice—as expressed either in state-centric or society-centric terms—of a given body of laws. Insofar as the United States, which conquered occupied Japan in the denouement of the Pacific War and which imposed its own version of anti-natural law liberalism on Japan in the postwar phase, purged Suehiro for his statism, the United States, too, failed to take into account the distinction between justice and power. Thus, the many ways in which the Japanese legal system emerged from the war years substantially unchanged is a testament to the overall failure of modern legal orders to reckon with the strictures of the natural law.

A careful analysis of Japan's dealings with its legal system through a time of unprecedented change (1868- 1960). A must for scholars of Japanese studies, historians and jurists alike.

This book offers a comprehensive interpretive study of the role of law in contemporary Japan. Haley argues that the weakness of legal controls throughout Japanese history has assured the development and strength of informal community controls based on custom and consensus to maintain order--an order characterized by remarkable stability, with an equally significant degree of autonomy for individuals, communities, and businesses. Haley concludes by showing how Japan's weak legal system has reinforced preexisting patterns of extralegal social control, thus explaining many of the fundamental paradoxes of political and social life in contemporary Japan.

Winner of the John Phillip Reed Book Award, American Society for Legal History A legal historian opens a window on the monumental postwar effort to remake fascist Germany and Japan into liberal rule-of-law nations, shedding new light on the limits of America’s ability to impose democracy on defeated countries. Following victory in WWII, American leaders devised an extraordinarily bold policy for the occupations of Nazi Germany and Imperial Japan: to achieve their permanent demilitarization by compelled democratization. A quintessentially American feature of this policy was the replacement of fascist legal orders with liberal rule-of-law regimes. In his comparative investigation of these epic reform projects, noted legal historian R. W. Kostal shows that Americans found it easier to initiate the reconstruction of foreign legal orders than to complete the process. While American agencies made significant inroads in the elimination of fascist public law in Germany and Japan, they were markedly less successful in generating allegiance to liberal legal ideas and institutions. Drawing on rich archival sources, Kostal probes how legal-reconstructive successes were impeded by German and Japanese resistance on one side, and by the glaring deficiencies of American theory, planning, and administration on the other. Kostal argues that the manifest failings of America’s own rule-of-law democracy weakened US credibility and resolve in bringing liberal democracy to occupied Germany and Japan. In Laying Down the Law, Kostal tells a dramatic story of the United States as an ambiguous force for moral authority in the Cold War international system, making a major contribution to American and global history of the rule of law.