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.
Thus Ruled Emir Abbas is an important new research tool that reveals much about daily life in Kano, the wealthiest and most populous emirate of the African Sokoto Caliphate. It contains a selection of Kano Judicial Council documents, as well as their English translations, that deal with matters such as land disputes, tax collection disputes, and theft. These documents are invaluable resources that reveal much about Kano social, economic, and political life before the region came under the influence of colonial institutions, law, and language. This selection of records for more than 415 cases, along with their translations, will become essential reading for those interested in Nigeria’s past and will certainly become a standard work in the field of Nigerian history and anthropology.
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.
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.
Justice among Nations tells the story of the rise of international law and how it has been formulated, debated, contested, and put into practice from ancient times to the present. Stephen Neff avoids technical jargon as he surveys doctrines from natural law to feminism, and practices from the Warring States of China to the international criminal courts of today.
Ancient China produced the first rudimentary set of doctrines. But the cornerstone of later international law was laid by the Romans, in the form of natural law—a universal law that was superior to early laws and governments. As medieval European states came into contact with non-Christian peoples, from East Asia to the New World, practical solutions had to be devised to the many legal quandaries that arose. In the wake of these experiences, international legal doctrine began to assume its modern form in the seventeenth and eighteenth centuries.
New challenges in the nineteenth century encompassed the advance of nationalism, the rise of free trade and European imperialism, the formation of international organizations, and the arbitration of disputes. Innovative doctrines included liberalism, the nationality school, and solidarism. The twentieth century witnessed the formation of the League of Nations and a World Court, but also the rise of socialist and fascist states and the advent of the Cold War. Yet the collapse of the Soviet Union brought little respite. As Neff makes clear, further threats to the rule of law today come from environmental pressures, genocide, and terrorism.
It is commonly believed that international law originated in relations among European states that respected one another as free and equal. In fact, as Jennifer Pitts shows, international law was forged at least as much through Europeans’ domineering relations with non-European states and empires, leaving a legacy still visible in the unequal structures of today’s international order.
Pitts focuses on the eighteenth and nineteenth centuries, the great age of imperial expansion, as European intellectuals and administrators worked to establish and justify laws to govern emerging relationships with non-Europeans. Relying on military and commercial dominance, European powers dictated their own terms on the basis of their own norms and interests. Despite claims that the law of nations was a universal system rooted in the values of equality and reciprocity, the laws that came to govern the world were parochial and deeply entangled in imperialism. Legal authorities, including Emer de Vattel, John Westlake, and Henry Wheaton, were key figures in these developments. But ordinary diplomats, colonial administrators, and journalists played their part too, as did some of the greatest political thinkers of the time, among them Montesquieu and John Stuart Mill.
Against this growing consensus, however, dissident voices as prominent as Edmund Burke insisted that European states had extensive legal obligations abroad that ought not to be ignored. These critics, Pitts shows, provide valuable resources for scrutiny of the political, economic, and legal inequalities that continue to afflict global affairs.
The ever-increasing exchange of goods and ideas among nations, as well as cross-border pollution, global warming, and international crime, pose urgent questions for international law. Here, two respected scholars provide an intellectual framework for assessing these pressing legal problems from a rational choice perspective.
The approach assumes that states are rational, forward-looking agents which use international law to address the actions of other states that may have consequences for their own citizens, and to obtain the benefits of international cooperation. It further assumes that in the absence of a central enforcement agency—that is, a world government—international law must be self-enforcing. States must believe that if they violate international agreements, other states will retaliate.
Consequently, Eric A. Posner and Alan O. Sykes devote considerable attention to the challenges of enforcing international law, which begin with the difficulties of determining what it is. In the absence of an international constitution, the sources for international law are vague. Lawyers must rely on statements contained in all manner of official documents and on simple observation of states’ behavior. This looseness leads international institutions such as the United Nations to deliver conflicting interpretations of the law’s most basic principles. The authors describe the conditions under which international law succeeds or fails, across a wide range of issues, including war crimes, human rights, international criminal law, principles of state responsibility, law of the sea, international trade regulation, and international investment law.
The Economic Structure of International Law presents a rationalist analysis of the structure of international law. It employs social scientific techniques to develop an understanding of the role of law in international society. In doing so, it delves into the question of compliance and reveals the real-world circumstances under which states might adhere to or violate international law.
Joel P. Trachtman explores such topics as treaty-making and jurisdiction; the rise, stability, and efficiency of custom; the establishment of international organizations; and the structure and role of international legal dispute settlement. At the core of the book lies the question of the allocation of legal power to states. The Economic Structure of International Law presents policymakers and scholars with an over-arching analytical model of international law, one that demonstrates the potential of international law, but also explains how policymakers should choose among different international legal structures.
The 1970s promised important readjustments in relations among the great powers, perhaps a reconstituted Europe and Asia, as well as a possible new role for "third world" countries. National attitudes toward the law of nations both shaped and reflected developments of this nature. As a great power, the Soviet Union was a principal actor in what transpired, but until now there has been no systematic exposition in the English language of how Soviet jurists regarded the world legal order.
The present volume, published in Moscow in 1970, is the most profound and comprehensive study of international legal theory yet produced by a Soviet jurist. Its author, who holds the Chair of International Law at Moscow State University and for many years was the legal adviser to the USSR Ministry of Foreign Affairs, is widely credited with elaborating the juridical underpinnings of peaceful coexistence in the USSR from the mid-1950s. This book, earlier versions of which have appeared in Eastern and Western Europe, contains the fullest statement of his views.
Tunkin traces the development and shaping of international law since 1917, the processes of forming and modifying international legal rules, and the nature of state responsibility under the law of nations. Of special interest to the general reader and specialist in international affairs will be Tunkin's extensive discussion of the interaction among international law, foreign policy, and diplomacy; of the legal nature of international organizations; of the principal factors at work in international politics; and of the nature of legal ties among socialist countries. The latter has been a special concern following the Czechoslovak events of 1968 and the adoption of a comprehensive program for economic integration among socialist states.
For this American edition, Tunkin has brought his book up to date and Dr. Butler has supplied an introduction, a translation note, a list of the author's publications, and a glossary of Russian international legal terms.
In an increasingly complex and interdependent world, states resort to a bewildering array of regulatory agreements to deal with problems as disparate as climate change, nuclear proliferation, international trade, satellite communications, species destruction, and intellectual property. In such a system, there must be some means of ensuring reasonably reliable performance of treaty obligations. The standard approach to this problem, by academics and politicians alike, is a search for treaties with "teeth"--military or economic sanctions to deter and punish violation.
The New Sovereignty argues that this approach is misconceived. Cases of coercive enforcement are rare, and sanctions are too costly and difficult to mobilize to be a reliable enforcement tool. As an alternative to this "enforcement" model, the authors propose a "managerial" model of treaty compliance. It relies on the elaboration and application of treaty norms in a continuing dialogue between the parties--international officials and nongovernmental organizations--that generates pressure to resolve problems of noncompliance. In the process, the norms and practices of the regime themselves evolve and develop.
The authors take a broad look at treaties in many different areas: arms control, human rights, labor, the environment, monetary policy, and trade. The extraordinary wealth of examples includes the Iran airbus shootdown, Libya's suit against Great Britain and the United States in the Lockerbie case, the war in Bosnia, and Iraq after the Gulf War.
The authors conclude that sovereignty--the status of a recognized actor in the international system--requires membership in good standing in the organizations and regimes through which the world manages its common affairs. This requirement turns out to be the major pressure for compliance with treaty obligations. This book will be an invaluable resource and casebook for scholars, policymakers, international public servants, lawyers, and corporate executives.
Foreign Policy. “In the annals of forgetfulness there is nothing quite to compare with the fading from the American mind of the idea of the law of nations.”
Grenada. “We might have benefited from a weekend’s pause in which we could have considered our interests rather than merely giving in to our impulses.”
The mining of Nicaraguan harbors. “A practice of deception mutated into a policy of deceit.”
Iran–Contra. “The idea of international law had faded. But just as important, in the 1980s it had come to be associated with weaknesses in foreign policy. Real men did not cite Grotius.”
As the era of totalitarianism recedes, the time is at hand to ask by what rules we expect to conduct ourselves, Senator Daniel Patrick Moynihan writes in this pellucid, and often ironic, examination of international law. Our founding fathers had a firm grasp on the importance and centrality of such law; later presidents affirmed it and tried to establish international institutions based on such high principles; but we lost our way in the fog of the Cold War.
Moynihan’s exploration of American attitudes toward international law—those of presidents, senators, congressmen, public officials, and the public at large—reveals the abiding reverence for a law of nations and the attempts for almost two hundred years to make international law the centerpiece of foreign and strategic policy. Only in the last decade did a shift in values at the highest levels of government change the goals and conduct of the United States.
Displaying a firm grasp of history, informed by senatorial insights and investigative data, elegantly written, this book is a triumph of scholarship, interpretation, and insight.
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