AAS Annual Meeting

Interarea/Border-Crossing Session 458

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Session 458: Law I

Thinking about the Improvement of the System of the Chief Procurator Attending Trial Committee as an Observer
Xiaodong Wang, Independent Scholar, China

The chief procurator attending trial committee as an observer is beneficial to judicial justice and harmonious society and has poured vigor and vitality to Chinese legal system. Meanwhile, it strengthens the mutual promotion and restriction between the procuratorial organ and judicial organ on criminal activity, civil affairs and administrative litigation. To exchange information timely and solve practical problems brings the quality and the efficiency of handle cases, which have a great significance for procuratorial organ to perform legal duty efficiently. The chief procurator attending trial committee as an observer exercises trial right of supervision by law, and really realizes power balance which is common value and basic principle on modern democracy. This paper states the importance and effect of the system of the chief procurator attending trial committee as an observer from three aspects. Such a system is playing an irreplaceable role on developing legal supervision power by People's Procuratorate, on improving fair trial by People Court and ensuring the basic function of judicial justice. It also displays the persevering effect of procuratorial organ and sets up a harmonious development view of law enforcement for procuratorial power, further realized the fair value of law in the society.

Law, Harm and Cultural cognition: An Experiment with Interactive Cartoons
Salil K. Mehra, Temple University, USA

This study addresses the dominant assumption of universal black box rationality in American legal studies of Japan. Takeyoshi Kawashima is often associated with the theory -- criticized by leading legal scholars such as John Haley, Setsuo Miyazawa, and Mark Ramseyer -- that Japanese culture privileges relationships above rights. Recently, cultural cognition psychologists, such as Dov Cohen, Shinobu Kitayama, and Richard Nesbitt, have shown that Japanese subjects are indeed more likely than Americans to assess physical and social context, and less likely to attribute individual action to one’s choice rather than one’s situation. I test whether there is a cultural cognition-related difference in lay people’s view of tort causation. I use a series of mostly nonverbal cartoons that depict tort scenarios. Each cartoon shows an accident resulting from several events, including those stemming from nature, the environment, and individual intentional human acts. The experimental subjects indicate what they believe to be the “cause” or the “causes” of the harm. I test whether Americans would be more likely than Japanese to choose a single cause for harm, and whether Americans are more likely to choose the individual actor as a cause. The subjects’ choices provide data to test the hypothesis that culture affects the perception of causation at the individual level. Prelminary results show a statistically significant tendency for Americans to indicate the "actor" as the cause of the harm, suggesting a difference in individuals’ assessment of the scenarios that may influence, and be influenced by, their legal systems.

Meiji Constitutionalism and Huang Zunxian
Hui Zhao, Harvard University, USA

Western political science tends to regard “limited government” as the touchstone of modern constitutionalism. This paper examines how problematic it is when this formula is applied to Japan and China through a study on the origin of constitutionalism in both countries. This paper notes that due to its particular domestic condition and an unusual international setting, Meiji Constitutionalism flourished not to limit the government but to strengthen it. Rather than an offshoot of an indigenous need for protection of individual rights from the infringement of the state, Meiji leaders were compelled to adopt the concept in order to escape from unequal treaties and to draw alongside major Western powers, as well as to penetrate society more thoroughly, thereby achieving a successful centralization and popular mobilization. This strengthening was the soul of Meiji Constitutionalism, the very origin of the Asian model of Constitutionalism. Taking up Huang Zunxian, who is well known as the first transmitter of Meiji Constitutionalism to China, this paper also considers how Huang Zunxian understood, evaluated, and transformed Meiji constitutionalism in his own framework. Thoughts on statecraft indigenous to China equipped him with a unique perspective with which to observe Japan. Yet these very assumptions underlying the Chinese paradigm also misled him. The perception and misperception in Huang Zunxian’s reading of Meiji Constitutionalism shaped Chinese constitutional thoughts in the 20th century toward an even more centralized model.

Death by Jail in Late Imperial China: Accidental Death and Qing Dynasty Punishment
Kathleen Poling, University of California, Berkeley, USA

How did the Qing justice system deal with the unintentional deaths of prisoners in their jails? Death by jail, the ‘accidental’ death of criminals awaiting punishment, was a common occurrence during the Qing yet has been dismissed by many scholars of Chinese law and society as an unavoidable aspect of pre-modern holding facilities. Yet, even if the death of a large number of prisoners can be explained by contemporary contagion science, what are scholars to make of the fact that under the Qing, death in prison, even for a capital offense, was considered a miscarriage of justice? In this paper I ask why the unintentional death of prisoners condemned to die mattered. How were such deaths dealt by the imperial bureaucracy? What aspects of the institutional and legal structure of Qing justice resulted in the accidental deaths of prisoners? What does the pattern of administrative choices in such cases reveal about the empire behind these deaths? How was the Qing able to construct the justice apparatus as a manifestation of imperial benevolence in the face of repeated, indeed systemic, accidental death of criminals? To answer these questions, I explore the administrative handling of these unintentional fatalities through an analysis of local jail records, memorials and law codes. I hope, here, to use a repeated failure of the Qing judicial system to understand more clearly its goals and values.

Civil Procedural Justice in Japan
Mark Levin, University of Hawaii, Manoa, USA

Numerous works have shown how central judicial administrators in Japan may ideologically influence the nation’s lower court judges. This paper draws upon these reports to analyze and frame these circumstances as “instrumental judicial administration,” qualitatively distinguishing the various means used by administrators and reflecting on their degrees of impact on civil procedural justice. Then, moving from description to prescription, the paper considers the underlying legal context, drawing from constitutional text and history, statutory text, and case law, before launching a search for solutions in its conclusion. Although the immediate focus is on how instrumental judicial administration emerges in the Japanese civil justice system, the approach here is broadly applicable for studies of the roles of judges and functions of courts generally.

(For)given Time: Inheritance, debt, and moral economy in postwar compensation lawsuits between China and Japan
Yukiko Koga, City University of New York, Hunter College, USA

In four landmark rulings on April 27, 2007, the Supreme Court of Japan rejected compensation claims filed by former Chinese forced laborers abducted to work in wartime Japan, and by the so-called “comfort women.” Yet the rulings acknowledged, in unprecedentedly strong language, the injustice committed by Japanese corporations and the state during the war. These Supreme Court decisions signaled an opening of a new chapter for the series of postwar compensation lawsuits filed by Chinese war victims since the 1990s, giving “voice” to their unclaimed experiences after decades of silence. This paper is part of a larger project on postwar compensation for violence and injustice committed by the Japanese colonialism in the first half of the twentieth-century. Through a combination of anthropological, legal, and historical study, I examine the politics of redress through the lens of postwar compensation surrounding former Chinese forced laborers. This paper ethnographically examines the compensation lawsuits filed by former Chinese forced laborers against the Japanese government and corporations, which brought to light two significant and long-hidden Japanese government archive detailing the wartime use of Chinese forced labor and the postwar cover-up. The paper will demonstrate how the bodies of victims are transformed through the compensation lawsuits from “laboring” bodies that produced raw materials for the Japanese war economy to “iconic” bodies that serve as symbols of moral debt in both national and international human rights discourses.