Many people believe that conflict in the well-disciplined Japanese society is so rare that the Japanese legal system is of minor importance. Frank Upham shows conclusively that this view is mistaken and demonstrates that the law is extensively used, on the one hand, by aggrieved groups to articulate their troubles and mobilize political support and, on the other, by the government to channel and manage conflict after it has arisen.
This is the first Western book to take law seriously as an integral part of the dynamics of Japanese business and society, and to show how an informal legal system can work in a complex industrial democracy. Upham does this by focusing on four recent controversies with broad social implications: first, how Japan dealt with the world’s worst industrial pollution and eventually became a model for Western environmental reforms; second, how the police and courts have allowed one Japanese outcast group to use carefully orchestrated physical coercion to achieve wide-ranging affirmative action programs; third, how Japanese working women used the courts to force employers to eliminate many forms of discrimination and eventually convinced the government to pass an equal employment opportunity act; and, finally, how the Ministry of International Trade and Industry and various sectors of Japanese industry have used legal doctrine to cope with the dramatic changes in Japan’s economy over the last twenty-five years.
Readers interested in the interaction of law and society generally; those interested in contemporary Japanese sociology, politics, and anthropology; and American lawyers, businessmen, and government officials who want to understand how law works in Japan will all need this unusual new book.
Long ignored by historians and repudiated in their time, practitioners of private law opened the way toward Japan’s legal modernity. From the seventeenth to the turn of the twentieth century, lawyers and their predecessors changed society in ways that first samurai and then the state could not. During the Edo period (1600–1868), they worked from the shadows to bend the shogun’s law to suit the market needs of merchants and the justice concerns of peasants. Over the course of the nineteenth century, legal practitioners changed law from a tool for rule into a new epistemology and laid the foundation for parliamentary politics during the Meiji era (1868–1912).
This social and political history argues that legal modernity sprouted from indigenous roots and helped delineate a budding nation’s public and private spheres. Tracing the transition of law regimes from Edo to Meiji, Darryl E. Flaherty shows how the legal profession emerged as a force for change in modern Japan and highlights its lasting contributions in founding private universities, political parties, and a national association of lawyers that contributed to legal reform during the twentieth century.
These chapters by eight Korea specialists present a new approach to human rights issues in Korea. Instead of using an external and purely contemporary standard, the authors work from within Korean history, treating the successive phases of Korea’s modern century to examine the uneasy fate of human rights and some of the ideas of human rights as they have developed in the Korean context. Beginning with the Independence Club of the late nineteenth century and continuing through to the constitutional and judicial structures underlying the Sixth Republic Government of Roh Tae Woo in South Korea, these papers illuminate the sometimes complex interactions between modern Korean human-rights issues and the legacies of Korean culture and colonial occupation.
The contributors provide a corrective to two common errors: one, an overemphasis on the tension between residual Confucian culture and human-rights concepts; two, the opposite error, a defensive nationalism that gives rise to ill-founded efforts to identify democratic antecedents in the Korean past. Instead, these authors allow each episode in the emergence of Korean human rights thought and action to stand in the context of its own time and of Korea’s modern history. The final sections deal with the usefulness and appropriateness of U.S. policies toward human rights in South Korea and comparatively with the overall issues raised in the volume.
Under the guise of Islamic law, the prophet Muhammad’s Islam, and the Qur’an, states such as Pakistan, Afghanistan, Egypt, Saudi Arabia, and Bangladesh are using blasphemy laws to suppress freedom of speech. Yet the Prophet never tried or executed anyone for blasphemy, nor does the Qur’an authorize the practice. Asserting that blasphemy laws are neither Islamic nor Qur‘anic, Shemeem Burney Abbas traces the evolution of these laws from the Islamic empires that followed the death of the Prophet Muhammad to the present-day Taliban. Her pathfinding study on the shari’a and gender demonstrates that Pakistan’s blasphemy laws are the inventions of a military state that manipulates discourse in the name of Islam to exclude minorities, women, free thinkers, and even children from the rights of citizenship.
Abbas herself was persecuted under Pakistan’s blasphemy laws, so she writes from both personal experience and years of scholarly study. Her analysis exposes the questionable motives behind Pakistan’s blasphemy laws, which were resurrected during General Zia-ul-Haq’s regime of 1977–1988—motives that encompassed gaining geopolitical control of the region, including Afghanistan, in order to weaken the Soviet Union. Abbas argues that these laws created a state-sponsored “infidel” ideology that now affects global security as militant groups such as the Taliban justify violence against all “infidels” who do not subscribe to their interpretation of Islam. She builds a strong case for the suspension of Pakistan’s blasphemy laws and for a return to the Prophet’s peaceful vision of social justice.
African Asylum at a Crossroads: Activism, Expert Testimony, and Refugee Rights examines the emerging trend of requests for expert opinions in asylum hearings or refugee status determinations. This is the first book to explore the role of court-based expertise in relation to African asylum cases and the first to establish a rigorous analytical framework for interpreting the effects of this new reliance on expert testimony.
Over the past two decades, courts in Western countries and beyond have begun demanding expert reports tailored to the experience of the individual claimant. As courts increasingly draw upon such testimony in their deliberations, expertise in matters of asylum and refugee status is emerging as an academic area with its own standards, protocols, and guidelines. This deeply thoughtful book explores these developments and their effects on both asylum seekers and the experts whose influence may determine their fate.
Contributors: Iris Berger, Carol Bohmer, John Campbell, Katherine Luongo, E. Ann McDougall, Karen Musalo, Tricia Redeker Hepner, Amy Shuman, Joanna T. Tague, Meredith Terretta, and Charlotte Walker-Said.
In the struggle against apartheid, one often overlooked group of crusaders was the coterie of black lawyers who overcame the Byzantine system that the government established oftentimes explicitly to block the paths of its black citizens from achieving justice.
Now, in their own voices, we have the narratives of many of those lawyers as recounted in a series of oral interviews. Black Lawyers, White Courts is their story and the anti-apartheid story that has before now gone untold.
Professor Kenneth Broun conducted interviews with twenty-seven black South African lawyers. They were asked to tell about their lives, including their family backgrounds, education, careers, and their visions for the future. In many instances they also discussed their years in prison or exile, or under house arrest. Most told of both education and careers interrupted because of the ongoing struggle.
The story of the professional achievements of black lawyers in South Africa—indeed their very survival—provides an example of the triumph of individuals and, ultimately, of the law. Black Lawyers, White Courts is about South Africa, and about black professionals in that country, but the lessons its protagonists teach extend far beyond circumstances, geography, or race.
Adam Sitze meticulously traces the origins of South Africa’s Truth and Reconciliation Commission back to two well-established instruments of colonial and imperial governance: the jurisprudence of indemnity and the commission of inquiry. This genealogy provides a fresh, though counterintuitive, understanding of the TRC’s legal, political, and cultural importance. The TRC’s genius, Sitze contends, is not the substitution of “forgiving” restorative justice for “strict” legal justice but rather the innovative adaptation of colonial law, sovereignty, and government. However, this approach also contains a potential liability: if the TRC’s origins are forgotten, the very enterprise intended to overturn the jurisprudence of colonial rule may perpetuate it. In sum, Sitze proposes a provocative new means by which South Africa’s Truth and Reconciliation Commission should be understood and evaluated.
This selection of Arabic and English translations illuminates the changes of eighteenth-century government in the northern Nile Valley of Sudan, and provides reliable chronological points of reference for the history of the region.
The documents offered in this volume, including charter grants of land and privilege, administrative letters, judicial rulings, and other official government records, date form 1702 to 1820. This period marks the apogee of the wealth, power, and geographical extent of the realm of the Funji kings of Sinnar who reigned over much of the Sudan from about 1500 until the Turkish colonial conquest of 1821.
These records document with concrete precision and eloquence the dissolution of the agrarian social order of an old African kingdom under the corroding influence of intrusive Mediterranean commercial practices and culture. They reveal the Sudan's legacy of a traditionally weak government vulnerable to manipulation or conquest by foreign powers and a divided and impoverished society dominated by a minority of urban interests.
In 1980 the ZANU/PF government of Robert Mugabe came to power after an extended war of liberation. They inherited a cluster of emergency laws similar to those available to the authorities in South Africa. It was also the beginning of the cynical South African state policy of destabilization of the frontline states. This led to a dangerous period of insurrection in Mashonaland and increased activity by Renamo.
Dr. Hatchard uses the case of Zimbabwe to ask questions about the use of authority in contemporary African states. He examines:
1. Whether and in what circumstances the declaration and retention of a state of emergency is justified;
2.The scope of emergency regulations and their impact on individual freedoms;
3.What safeguards are necessary in order to protect those freedoms during a state of emergency.
The relationship is studied from a political as well as a legal perspective. Dr. Hatchard examines the role law has played, is playing and may play. The author concludes that, even if the state of emergency is justified, this does not necessitate the curtailment of the exercise of individual freedoms.
There are many comparisons with the rest of Africa. The book is of practical importance for members of the judiciary, legal practitioners, politicians and human rights organizations. The difficult questions it poses make stimulating teaching material for students of the Third World who want to understand the reality of the exercise of power in fragile situations.
Keeping Hold of Justice focuses on a select range of encounters between law and colonialism from the early nineteenth century to the present. It emphasizes the nature of colonialism as a distinctively structural injustice, one which becomes entrenched in the social, political, legal, and discursive structures of societies and thereby continues to affect people’s lives in the present. It charts, in particular, the role of law in both enabling and sustaining colonial injustice and in recognizing and redressing it. In so doing, the book seeks to demonstrate the possibilities for structural justice that still exist despite the enduring legacies and harms of colonialism. It puts forward that these possibilities can be found through collaborative methodologies and practices, such as those informing this book, that actively bring together different disciplines, peoples, temporalities, laws and ways of knowing. They reveal law not only as a source of colonial harm but also as a potential means of keeping hold of justice.
Human Rights after Hitler reveals thousands of forgotten US and Allied war crimes prosecutions against Hitler and other Axis war criminals based on a popular movement for justice that stretched from Poland to the Pacific. These cases provide a great foundation for twenty-first-century human rights and accompany the achievements of the Nuremberg trials and postwar conventions. They include indictments of perpetrators of the Holocaust made while the death camps were still operating, which confounds the conventional wisdom that there was no official Allied response to the Holocaust at the time. This history also brings long overdue credit to the United Nations War Crimes Commission (UNWCC), which operated during and after World War II.
From the 1940s until a recent lobbying effort by Plesch and colleagues, the UNWCC’s files were kept out of public view in the UN archives under pressure from the US government. The book answers why the commission and its files were closed and reveals that the lost precedents set by these cases have enormous practical utility for prosecuting war crimes today. They cover US and Allied prosecutions of torture, including “water treatment,” wartime sexual assault, and crimes by foot soldiers who were “just following orders.” Plesch’s book will fascinate anyone with an interest in the history of the Second World War as well as provide ground-breaking revelations for historians and human rights practitioners alike.
During the past several decades, the twentieth century Holocaust has become a defining event in many histories. This newfound respect for the Judeocide has been cathartic for both individuals and communities, in that it provides evidence that audiences around the world are rethinking the significance of the World War II narratives of bystanders, perpetrators, and victims. Given the complexities of these issues, scholars who are interested in studying Holocaust memory make choices about the questions on which they focus, the artifacts they select for analysis, and the perspectives they want to present.
Hasian reviews how national and international courts have used Holocaust trials as forums for debates about individuated justice, historical record keeping, and pedagogical memory work. He concludes that the trials involving Auschwitz, Demjanjuk, Eichmann, Finta, Nuremberg, Irving, Kastner, Keegstra, Sawoniuk, and Zündel are highly problematic. The author provides a rhetorical analysis of holocaust trials as a way of looking into the question of what role court proceedings play in the creation of Holocaust collective memories.
This comprehensive treatment of post–World War II Allied war crimes trials in the Far East is a significant contribution to a neglected subject. While the Nuremberg and, to a lesser degree, Tokyo tribunals have received considerable attention, this is the first full-length assessment of the entire Far East operation, which involved some 5,700 accused and 2,200 trials.
After discussing the Tokyo trial, Piccigallo systematically examines the operations of each Allied nation, documenting procedure and machinery as well as the details of actual trials (including hitherto unpublished photographs) and ending with a statistical summary of cases.
This study allows a completely new assessment of the Far East proceedings: with a few exceptions, the trials were carefully and fairly conducted, the efforts of defense counsel and the elaborate review procedures being especially noteworthy. Piccigallo’s approach to this emotion-filled subject is straightforward and evenhanded throughout. He concludes with a discussion of the broader implications of such war crimes trials, a matter of interest to the general reader as well as to specialists in history, law, and international affairs.
This book assesses the historical significance of the International Military Tribunal for the Far East (IMTFE)—commonly called the Tokyo trial—established as the eastern counterpart of the Nuremberg trial in the immediate aftermath of World War II.
Through extensive research in Japanese, American, Australian, and Indian archives, Yuma Totani taps into a large body of previously underexamined sources to explore some of the central misunderstandings and historiographical distortions that have persisted to the present day. Foregrounding these voluminous records, Totani disputes the notion that the trial was an exercise in “victors’ justice” in which the legal process was egregiously compromised for political and ideological reasons; rather, the author details the achievements of the Allied prosecution teams in documenting war crimes and establishing the responsibility of the accused parties to show how the IMTFE represented a sound application of the legal principles established at Nuremberg.
This study deepens our knowledge of the historical intricacies surrounding the Tokyo trial and advances our understanding of the Japanese conduct of war and occupation during World War II, the range of postwar debates on war guilt, and the relevance of the IMTFE to the continuing development of international humanitarian law.
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