Commemorating Prof Dr Harald Baum’s 25-Year General Editorship of the Journal of Japanese Law

[Foreword forthcoming in Issue 50 of the Journal of Japanese Law]

The wonderful Journal of Japanese Law (ZJapanR/J.Japan.L.) has provided inspiration world-wide, even to antipodeans from its earliest days. Prof Harald Baum supported and befriended me since the early 1990s at Kyoto University, where he was on a research sabbatical from Hamburg and I was studying for the LLM and the first part of a PhD. He was researching and editing a comprehensive Handbuch on Japanese business law (published in 1994) thatincluded a selective and carefully-structured bibliography of works in German. We collaborated in developing a bibliography of works in English, published in 1997 after I returned to New Zealand, with ZJapanR/J.Japan.L.’s Issue 3 reproducing a section on “Finding Japanese on the Internet” (such a new technology at that time!).[1] We then combined and expanded these resources into a detailed Bibliography published in 1998 in the United States (with a second edition in 2013).[2] The ZJapanR/J.Japan.L. has continued to publish bibliographies curated by experts to assist academic and other researchers, even (or perhaps especially) in this age of digital information. An example is a bibliography in ZJapanR/J.Japan.L.’s immediate past issue (No 49) surveying scholarship on gender and Japanese law.[3]

This early collaboration with Harald made me realise early on just how much high-quality and wide-ranging research relating to Japanese law was being published in German, English and even other Western languages in various places, including the new ZJapanR/J.Japan.L. Harald and the Journal also generously supported the Australian Network for Japanese Law (ANJeL), when it was created in 2002 by the law schools at Australian National University (ANU), the University of Sydney and a third university in Australia (currently the Queensland University of Technology).[4] Harald became a founding member of ANJeL’s advisory board and helped the DJJV become an ANJeL affiliate. He also kindly invited myself and Prof Kent Anderson (then at ANU, now Higher Education advisor to Australia’s Education Minister) onto the ZJapanR/J.Japan.L. editorial board.

ANJeL helped source potential contributions to the Journal, including occasionally some excellent research papers by Honours or other senior or former students from Australia, significantly helping their careers as well as providing useful perspectives for readers. ZJapanR/J.Japan.L. also published mini-issues, such as some papers for Issue 12 from my conference at the University of Victoria in Canada on “the multiple worlds of Japanese law” (2001), and papers for Issue 34 (2012) from ANJeL’s conference in Asia-Pacific disaster management.[5] Harald made it possible as well to reproduce some ZJapanR/J.Japan.L. material on ANJeL’s website. This helped raise the visibility of the Journal worldwide, but also the new Network, which now brings together over 500 academics, practitioners and others interested in Japanese law not only based in Australia and Japan but also in Germany and other parts of Europe as well as across Asia. ZJapanR/J.Japan.L.’s past issue and this one (No 50) include some papers from an ANJeL conference with and at the University of Pavia, charting and comparing the promising expansion of Japanese law scholarship throughout Europe nowadays.[6] Harald also kindly ensured that a brief activities report on ANJeL was included along with DJJV news in pamphlets sent out with issues of the Journal to its readers. Without all these links to the ZJapanR/J.Japan.L. facilitated by Harald, ANJeL would have had far less impact, so I would like to formally thank him (and Journal colleagues) for this long and fruitful collaboration.

I also express my immense gratitude for Harald’s untiring efficiency and always encouraging good humour in the time-consuming role as general editor over the last quarter century. He did so much more than for most other Journals I have helped or been associated with, where there are often now several general or senior editors given the growing demands associated with managing a reputable academic journal. Harald managed to minimise calls on editorial board members, while using us effectively when needed for reviews or advice, and always produced the goods. I was always excited to receive, like clockwork every six months, the next ZJapanR/J.Japan.L. issue, and I always found many things to read and learn about. Other Japan-specific law journals have fallen by the wayside, but the ZJapanR/J.Japan.L. is an invaluable resource and hope the new general editor and associated colleagues can maintain Harald’s legacy for at least another 25 years.


[1] Harald Baum and Luke Nottage, “Annotated Select Bibliography of Japanese Business Law in Western Languages”, Victoria University of Wellington Law Review 1997, 121-174; “Finding Japanese Law on the Internet: A Sample Odyssey”, ZJapanR/J.Japan.L. 3 (1997) 45-46.

[2] Harald Baum and Luke Nottage, Japanese Business Law in Western Languages: An Annotated Selective Bibliography (Rothman, 1998; 2nd ed Hein, 2013 co-authored also with Joel Rheuben and Markus Their).

[3] By Mark A. Levin and Kallista Hiraoka: see the foreword to the mini-issue by Leon Wolff and others, at https://japaneselaw.sydney.edu.au/2020/04/endurance-in-japanese-law/.

[4] For its new website, see https://www.anjel.com.au/.

[5] These included versions of papers developed for a book, as well as other complementary papers: Luke Nottage, Hitoshi Nasu and Simon Butt (eds), Asia Pacific Disaster Management: Comparative and Socio-Legal Perspectives(Springer, 2013), with a version of the introductory chapter freely available at  https://ssrn.com/abstract=2263953.

[6] For conference presentation abstracts and themes, see https://japaneselaw.sydney.edu.au/2019/04/japanese-law-compared-past-present-and-future/.

Comparing Australia’s Response to COVID-19: Against Whom, What, Why and How? Submission to a Senate Inquiry

Written by: Luke Nottage (Sydney Law School) and Tom van Laer (Sydney Business School)

We welcome this opportunity to provide a Submission to the Australian Parliament’s “Senate Committee on COVID-19” inquiry into the Australian government’s response to the outbreak and pandemic.[1] It seems very early to begin making such an assessment. But we o1ffer from our respective disciplines (comparative law and narratology) some preliminary observations as well as lines for future investigation that may assist Parliament and others contributing to this ongoing debate.

  • Our analysis builds partly on our recent joint contribution to USydney blogs (here and forthcoming).[2] One key message from that contribution is that this pandemic and its response have created a new narrative world, rather like a peculiar disaster movie, that prioritises only certain types of heroes and “expertise”. Another key point is that different countries nonetheless have been able to respond well if they have and can mobilise citizens’ trust in communities and (generally well-run) government.[3] A third lesson is that as Australia keeps trying now to move into a phase of socio-economic revitalisation, a new narrative will emerge and could be framed by political and other leaders.
  • In addition, more broadly, basic methodology in comparative law highlights the importance of working out what to compare and why. This is not obvious even if we try to focus on health outcomes. For this parliamentary inquiry, one question is whether to focus on death rates (which are easier to measure and compare, and the ultimate concern) or infection rates (varying widely depending on national testing regimes, but still maybe useful for projecting rates of deaths and serious treatments). On either measure, Australia has been doing extremely well by global standards.
  • If focusing mainly on COVID-19 death rates in assessing a current or future response, however, another aspect is whether and how to count deaths that are indirectly caused by the virus even over the short- to medium-term. These could include deaths from deferred or delayed surgeries or treatments, a greater than usual number of suicides (prompted by extended isolation) and more fatal traffic accidents (found eg in some parts of Japan despite an overall drop, as travel restrictions emptied streets so cars were driven faster).[4] Even greater complications come from trying to assess long-term consequences for the health and related welfare systems, from lockdown measures that result inevitably in severe economic slowdowns, as the stress from long-term un(der)employment is known to be extensive but hard to measure. It is even more complex to compare such effects across countries, as they have very different baselines regarding unemployment and health/welfare systems.
  • Contemporary experts in comparative law are also very attuned to considering what is being compared in terms of law. It is usually not enough to just compare the “black-letter law” rules set out in primary or secondary legislation. (This is well illustrated by Australia’s public health orders restricting movement, which needed to be further “interpreted”, eg as to what constitutes permitted “exercise”, by health ministers and/or police commissioners.[5]) Nor is it even enough to consider case law interpreting legislation (for which anyway there has been hardly any in Australia relating to pandemic responses, unlike countries like France or Germany with constitutionally-protected civil liberties).[6] We also need to compare norms that are “law-like” in terms of origin (from or supported by the government) and impact. Our blog posting mentions Sweden and Japan as countries where social distancing and travel restrictions are being implemented effectively, even among growing death and infection rates respectively, largely without police-enforced criminal or administrative sanctions. A question for this inquiry is therefore what Australia’s more narrowly legalistic response says about how we operate and our values as a society.
  • Japan’s pandemic response, which mostly appeals to communitarian norms of self-restraint rather than having the government and police enforce strict legal rules (as in Australia, albeit with local differences), is reminiscent of John Haley’s argument that Japan even in modern times is governed quite effectively by Authority Without Power (OUP, 1991). Regarding limited “power”, through legal enforcement mechanisms, legal sociologist Takao Tanase’s Community and the Law (co-translated for Elgar, 2010) highlights that Japan remains acutely aware that rigorously extending a “modern” legal system into socio-economic ordering can often be a double-edged sword – even as it has embarked on another wave of justice system reform this century.[7]
  • Relatedly, a final general lesson from comparative law methodology is to be aware of who we are comparing, ie which legal systems. The US is often an outlier, in its law and related socio-economic system,[8] so this Inquiry and later analyses should probably not focus much on that country. Australian jurists (and others) also often compare the UK, as the “mother country” still especially for basic legal principles, but we now borrow more instrumentally and widely, so should keep looking at other (continental) European as well as Asian countries. In particular, we can learn from the comparatively effective yet diverse pandemic responses adopted in East Asia, as mentioned in our joint blog posting added to this Submission.
  • With these methodological principles in mind, one conclusion that emerges from a preliminary comparative analysis of the pandemic is the importance of “proportionality” and “subsidiarity” principles in regulatory responses (including in international law, such as investment treaties[9] – often examined recently in Australian parliamentary inquiries).[10] As in public and private health, it is risky to jump in quickly with stronger measures, especially where there are uncertainties; to minimise side-effects and unexpected consequences, it is usually better to begin with less intensive interventions. Even when we set a short-term public health goal (like COVID-19 infection or especially death rates), and re-set goals as evidence becomes available or circumstances evolve, the response should be proportionate. It should seek to minimise adverse longer-term health effects (eg physical or mental health problems or suicides from sustained social isolation) and other adverse socio-economic impact (including economic contraction impacting on funding for the health and related social welfare systems). To get the balance right often means devolving decision-making authority to lower levels in government, with better information about constraints and impacts: the subsidiarity principle, well-developed say within the EU.
  • Japan seems to have pursued quite a proportionate response, only increasing restraints after infections started to escalate in March, rather like Sweden (but the latter with a much higher death rate). Yet Japan shows less devolution, arguably due to quite a centralised polity, despite the important policy-making contributions by Tokyo and Osaka governors. As a federal system, Australia has displayed more subsidiarity. Prime Minister Morrison and the federal government did usefully innovate around the Constitution by creating a “national cabinet” including premiers or leaders of all states and territories, to help coordinate pandemic responses in light of public health and economic advice. But states and territories across this huge island continent have still differed in timing, scope and implementation of pandemic responses, linked to infection and death rates but also arguably politics (with more centre-left states intervening more, notably Victoria eg not allowing solo fishing as golf as permitted “exercise”). Responses also vary even at local council level (with eg some even in New South Wales closing off city beaches to surfers, even if not necessarily at risk of police closing them down for exceeding state-level restrictions on crowds).
  • By contrast, New Zealand, a much stricter lockdown was implemented nation-wide with no regional variation, aiming at “eradication” rather than “management” of the virus.[11] In hindsight so far, given similar health outcomes so far compared to Australia, the policy seems less proportionate given the necessarily much greater adverse socio-economic impact (even in a more agrarian economy). Perhaps the policy was influenced by the electoral cycle, with Prime Minister Ardern before the pandemic viewed as facing a close election in September this year[12] – leaders don’t want to go to the polls amidst escalating death rates. But the policy could be implemented nation-wide because New Zealand still probably has what former constitutional law professor (and later Prime Minister) Geoffrey Palmer criticised as “the fastest law in the West”.[13] New Zealand still has a unitary state with only one house of parliament and no constitutional bill of rights, and quickly enacted new lockdown legislation,[14] attracting some belated and muted criticism.[15]
  • Another conclusion from a preliminary comparative analysis is that countries and their residents often tend to display a curious nationalism regarding their respective pandemic responses. New Zealanders mostly still seem very happy with their government’s measures. Perhaps this reflects a psychological defence mechanism to deal with a tough lockdown, or an undercurrent of historical deference to authority (“conservative reformism”, as put in an analysis comparing Japan’s “reformist conservatism” in legal education),[16] or a sense of nationhood premised on New Zealand leading the world (eg first to give votes to women, expanding the welfare state over the 20th century, then deregulating dramatically  in the 1980s while going “nuclear-free”), or more risk aversion generally. Another factor is that New Zealanders may feel a bit threatened by bigger resource-rich Australia. On the last point, it would be interesting to see how say smaller countries with closely linked larger neighbours (like Korea and Japan, or Japan and China) perceive comparative responses. It would also be interesting to research how emigres perceive the pandemic responses in their new countries. Perhaps they are very optimistic and supportive because they want to subconsciously justify their immigration choice (Nottage, as a New Zealander who emigrated to Sydney two decades ago, may be an example), or instead very critical (perhaps linked to different disappointments in having moved country).
  • A further point that emerges from comparative analysis is that wider narratives can differ even towards a global crisis with many commonalities. Trying with difficulty to discern Australia’s narrative towards disasters during its summer of bushfires, Tom van Laer was struck that the British government typically deploys a narrative of “we can endure this”. That was developed first doing the Blitz of London during World War II, and revived to deal with IRA and later terrorist attacks. The narrative in Australia seems much less definite and consistent, and perhaps this is because the country (let alone New Zealand) has fortunately had few natural and other disasters. The narrative response by Japan’s leaders nowadays seems quite British, but is worth investigating further in comparison also with Asian countries. We should also track how narratives are evolving as, at least in Australia and some countries, the COVID-19 pandemic shifts from being primarily a health crisis to being an economic crisis. The related narrative tension was highlighted quite early in Australia by Prime Minister Morrison talking about the pandemic being about both “lives and livelihoods”, but we should track how a new story-line develops compared to the countries, as suggested towards the end of our joint blog posting.
  • In addition, drawing more directly on the disciplinary perspective of narratology (how people use stories to persuade each other), Parliament first would benefit from working more systematically and curatorially with academics in developing and supplying official narratives, props, sites and endorsements. Limiting the potential for contradictions, such collaborations increase the likelihood citizens will cope with returning from the pandemic in a similar way. Parliament too may creatively use the experience of the pandemic. For example, mementos can materialize the successful return from the pandemic to the everyday world, a transition of which to be proud.
  • Second, emotionally distress because of the pandemic experience means that there is a vital role for Parliament to play in intentional interventions designed to help citizens cope with distress step by step. It is one thing to assert that citizens can be convinced that distress is cathartic; research findings instead show transforming that distress into benefits turns out to be complex and complicated, and may require a professional approach. To clarify, a reference to theatre may be helpful. In professional productions, trained actors typically are the ones to build narrative worlds. In “method acting” they blend their primary, ordinary lives into the narrative worlds and let the narrative worlds embrace them. Meanwhile they self-consciously realize the adopted narrative world is important but nonetheless different from the “real” world, a realization which eases coping with distress. The ease of getting out of the narrative of our pandemic world therefore constitutes a skill that drama schools teaching method acting could train citizens to do too. Meanwhile, extraordinary experience providers at large can consider offering intentional interventions like consultations, courses, counselling, discussions, therapies or training.
  • Third, this Senate Committee inquiry speaks to impactful issues in experiential industries more broadly. For example, both COVID-19 and virtual reality involve narrative worlds, which may present a costly challenge. These parallels explain the rise in addiction to certain video games and particularly richer virtual reality (e.g., Zoom) to which citizens can return whenever they like, for as long or as short a time as desired. For them, these realities stand as continuous identity reaffirmation and renewal, which can occur in no other way. To stop is to diminish the self. By contrast, the pandemic world will not continue forever to place a mental or physical burden on citizens. They therefore must treat their recent extraordinary experience as a series of happenings that transported their self profoundly but temporarily. They then can process it with awareness and abandon. Resumption of disbelief in the everyday world lies close to the heart of such successful retainment of ordinary life. Citizens ought to analogise the pandemic reality as a temporary narrative world, and become (or be made) aware that their alternate reality can only contribute to transformation of the everyday world if they at least periodically withdraw and reflect. The government has many opportunities and resources to help their citizens in this endeavour.

[1] https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/COVID-19

[2] See https://japaneselaw.sydney.edu.au/2020/05/covid-19-in-asia-and-beyond-we-are-story-characters-living-in-a-new-story-world/ and forthcoming via https://sbi.sydney.edu.au/coronavirus.

[3] As Prof Francis Fukuyama notes in a recent interview, the effectiveness of  COVID-19 responses lie less in regime type, but rather whether citizens trust their leaders, and whether those leaders preside over a competent and effective state: https://supchina.com/2020/05/01/francis-fukuyama-interview-covid-19/

[4] https://mainichi.jp/english/articles/20200516/p2g/00m/0na/010000c

[5] See generally our colleague A/Prof Andrew Edgar, https://auspublaw.org/2020/03/law-making-in-a-crisis-commonwealth-and-nsw-coronavirus-regulations/

[6] Compare eg Dr Holger Hestermeyer, http://constitutionnet.org/news/coronavirus-lockdown-measures-german-constitutional-court; and https://www.lepoint.fr/societe/coronavirus-le-conseil-d-etat-limite-le-pouvoir-des-maires-17-04-2020-2371882_23.php.

[7] Nottage, Luke R., Translating Tanase: Challenging Paradigms of Japanese Law and Society (May 27, 2006). Victoria University of Wellington Law Review, Vol.39, No. 4, pp. 755-778, 2009; Sydney Law School Research Paper No. 07/17. Available at SSRN: https://ssrn.com/abstract=921932

[8] Eg in comparative studies by Nottage on consumer law (especially product liability law), corporate governance, and contract law (many freely available via https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=488525) – all areas moreover that are now hit by the COVID-19 pandemic.

[9] See eg Nottage, Luke R., Rebalancing Investment Treaties and Investor-State Arbitration: Two Approaches (June 14, 2016). Journal of World Investment and Trade, Vol. 17, No. 6, pp. 1015-1040, 2016; Sydney Law School Research Paper No. 16/54. Available at SSRN: https://ssrn.com/abstract=2795396

[10] Nottage, Luke R. and Ubilava, Ana, Costs, Outcomes and Transparency in ISDS Arbitrations: Evidence for an Investment Treaty Parliamentary Inquiry (August 6, 2018). International Arbitration Law Review, Vol. 21, Issue 4, 2018; Sydney Law School Research Paper No. 18/46. Available at SSRN: https://ssrn.com/abstract=3227401 

[11] On the pros and cons of the eradication vs management strategies, from an interdisciplinary academic perspective, see generally the recent Go8 Report at https://go8.edu.au/research/roadmap-to-recovery

[12] Gary Hawke, https://www.eastasiaforum.org/2019/12/20/ardern-stardust-and-a-closer-than-you-would-think-2020-election/

[13] Unbridled Power (1st ed 1979), later edition reviewed here: http://www.nzlii.org/nz/journals/OtaLawRw/2005/10.html)

[14] https://www.stuff.co.nz/national/health/coronavirus/120572466/coronavirus-virus-laws-rushed-through-in-last-parliament-before-lockdown.

[15] https://thespinoff.co.nz/covid-19/28-04-2020/the-legal-basis-for-the-lockdown-may-not-be-as-solid-as-weve-been-led-to-believe/

[16] Nottage, Luke R., Reformist Conservatism and Failures of Imagination in Japanese Legal Education. Asia-Pacific Law & Policy Journal, Vol. 2, pp. 28-65, 2001. Available at SSRN: https://ssrn.com/abstract=837045

“COVID-19 in Asia and Beyond: We Are Story Characters Living in a New Story World”

Prof Luke Nottage (Sydney Law School) and A/Prof Tom van Laer (Sydney Business School)

Contemporary societies worldwide, and across the Asia-Pacific, have joined another realm. We struggle to make sense of the pandemic, ranging from the decelerated experience that continuously working from home promises, through to the immersion into COVID-19 impacts via news and social media. Engaging with this new narrative world, and eventually emerging from it, creates an ongoing challenge, which neither health professionals, nor politicians, nor policymakers address in much depth. They place emphasis on “flattening the curve,” for viral infections and economic slowdown, rather than on the complexities of transportation, transformation, and trans-mutilation as depicted in narratology[1] (how humanity uses stories to understand the world) and as experienced by ordinary citizens.

An overlooked aspect of COVID-19 is the wider story told by this intense, gripping, yet temporary pandemic.[2] This extraordinary experience creates a new narrative world, in which citizens feel as if they have escaped into a different, distinctly encapsulated frame. Narrative worlds are coherent, representative situation models woven from the distinct physical and temporal settings, props, characters, and performances that make experiences stand out.[3] Examining a narrative world can help reveal important currents and issues in socio-economic and legal ordering, offering new insights for policymakers and researchers.

1. Learning from Our New Storyline

To illustrate, this pandemic makes us feel as if we are stuck in disaster movie, but with some interesting differences from the usual Hollywood[4] (or Bollywood[5]) narratives. Thinking first of the herors, the main ones are those combatting the invidious coronavirus pandemic: the health professionals, especially the government medical officers, the front-line doctors and nurses, but (curiously) not really the psychologists or pharmacists.

The other unexpected heroes are those that usually do not feature: the supermarket staff on checkouts or (even more invisibly) stacking shelves, the truck drivers, or those making or delivering takeaways.

A few politicians are heroes too (or villains), but in a much reduced cast. Only few leaders of governments are prominent. Opposition leaders struggle to remain relevant. Not to mention the hundreds of other parliamentarians that usually vie for and get some media attention.

Everyone else is like an extra: paid a little to do not very much over long periods! These multitudes merely provide a the backdrop for the heroes to develop the movie’s storyline.

Largely missing are other groups that sometimes feature in disaster movies, or indeed disaster management scenarios in real life. Belatedly, in Act II, the economists are surfacing more, as the health challenges from Act I become better known and outcomes are generally improving. Economists, including central bankers[6] who usually take a low profile,[7] need to work out how to maintain or revive economies amidst ongoing uncertainties over a cure or vaccine.

The jurists remain largely missing in action, despite the introduction of “executive rule” (with many parliaments suspended)[8] and limited access to courts (as traditional bastions for civil liberties). But data privacy lawyers have sometimes made an appearance, eg on safeguards for the new COVIDSafe tracing App being encouraged by the Australian government for contact tracing).[9]

We also rather rarely hear of the sociologists, philosophers, theologians and even political scientists, who usually help us to make broader sense of the societies we live in. Nor do we hear much from academics more generally, unless working with those developing vaccines or specialising in public health.[10] However, for example, some Australian universities are now trying to highlight their wider interdisciplinary expertise,[11] as the sector takes a large hit in revenue due to declines especially in foreign student enrolments.[12]

So the scenario we are living through and see unfolding around us offers an opportunity to test whether there is a reversal of “the death of expertise”. Tom Nichols reviewed that phenomenon in 2017, although focusing more on postmodern Western rather than Asian societies.[13] Seeing ourselves in a disaster movie, in this way, can also provide insights into which groups of experts figure more prominently in public policy making generally.

2.       Other Insights from and for Japan and Other Asian Societies

The COVID-19 pandemic also highlights the resilience or perhaps revival of community norms in contemporary societies, even in highly developed Asia-Pacific economies. We often observe the importance of such norms from disaster management studies.[14]

In particular, in the short-term relief phase, examples of cooperative and altruistic behaviour tend to far outweigh selfishness or illegal behaviour (such as looting), contrary to the fears of Thucydides during the Athenian plague of 430BC.[15] This often extends to the post-disaster reconstruction phase, although politics and business as usual can then resurface, and effectiveness depends significantly on measures of “social capital” (such as participation in neighbourhood associations or religious groups) that vary across states and even localities. The impact of such community norms and institutions can also make a big difference in the disaster-planning phase.[16] Rural Taiwan’s effective cooperation against Covid-19[17] provides an interesting recent example for further comparative studies.

Japan’s response is also fascinating. It maintained economic activity longer than many Asian countries, although so for example did Taiwan and Korea.[18] Japan’s original policy stance has been criticised by some commentators, especially perhaps those sceptical about an earlier administration’s management of the 2011 earthquake/tsunami/radiation disasters. Yet Japan’s (still) low per capita death rate,[19] as well as another strong recent electoral result for the Abe Administration in 2019,[20] could explain this original policy stance. Nonetheless, as infections and testing grew,[21] the government declared a state of emergency last month — recently extended[22] — and “encouraged” dramatic reductions of sales and movements.[23]

Unusually, the central and local governments did not set criminal sanctions and use the police to enforce the restrictions. Instead they relied on appeals to narratives of civic virtue and consideration for others, albeit underpinned by the more instrumentalist power (and eventually practice) of “shaming” some miscreant businesses by “warning” the public if they remained open.[24]

An official reason for not mobilising the police was this would violate civil liberties enshrined in Japan’s (post-War, US-inspired) Constitution. Yet that, like other constitutions around the world, have provisions arguably justifying tougher interventions and sanctions.[25] One more likely explanation is that such measures, especially if introduced by a centre-right government, would remind its citizens (and neighbouring countries) of Japan’s militarist past – countering persistent efforts to substitute a narrative of “modern” freedoms and even pacifism.[26]

Another explanation is that Japanese leaders and policy-makers are aware that communitarian norms and respect for authority (and experts) remain comparatively strong. An analogy in Sweden, where leaders and policymakers still rely on community rather than legal norms despite a much higher death rate.[27]

Japan’s evolving experiment therefore raises another longstanding question: the importance of law in contemporary socio-economic ordering. Commentators have persuasively criticised an earlier “cultural relativist” theory that low civil litigation rates or less reliance on detailed contracts can simply be explained by “pre-modern” consensus-oriented or Confucian norms. Instead, they identified cost-benefit motivations for elites or individuals behind such outcomes.[28] Building on both storylines, the government itself has tried to promote a more active use of the legal system since the economic slowdown from the 1990s, including through wide-ranging justice system reforms.

Yet Japan seems to have reached a new equilibrium,[29] allowing an enhanced role for law while being cautious of its over-reach and conscious of the usefulness of maintaining strong communitarian values.[30] This balance, or tension, arguably becomes more visible in disaster situations in Japan, as also during the 2011 earthquake/tsunami/radiation disasters. It is therefore a topic worth comparing now across other Asian countries.

3. Emerging from the Pandemic into Another Narrative World

Over the course of the pandemic narrative world’s end, it will transcend its extraordinary nature. Sociologists and historians remind us that many tangible improvements come out of disasters.[31] Yet the narrative world that originates in the pandemic will also feed or “bleed” into the everyday world. Citizens can either transform this bleed into benefits that enrich their lives, or “trans-mutilate” it so that their lives remain immune. Reflecting on the discourses that surround the COVID-19 pandemic, we observe that many people “seek bleed out.” They want triggers, they want change, and they want transformation.

Deconstruction of the pandemic’s narrative world can have a pronounced transformative effect on these people. After the COVID-19 pandemic is over, many citizens will reveal how their behaviour, feelings, and thoughts in the narrative world are leaving traces with them afterwards, because of the world’s absence. By keeping the portal wedged open, traces of the narrative world’s presence will remain with these COVID-19-survivors and spread discernibly into the wider everyday world. Coping with these traces will offer purgative relief from these distressing emotions.

COVID-19 will change us. It will force us to face personal demons; to ask ourselves essential questions about the nature of humanity, of love, of choice. It will teach us new things about hope, and about loss. We will feel like we leave parts of ourselves stumbling around in that disaster movie. In return, we will bring back home a new piece of our humanity, of our innocence. We will thus become more aware of other worldviews through the extraordinary experience of the COVID-19 pandemic. Because of its absence, people will become more conscious of conspicuous consumption, of new relationships and sides to our identities.

However, challenged to negotiate the portal threshold between the narrative and the everyday world, not all citizens will gratefully receive these valuable aids to narratively sourced enculturation and instruction. Some COVID-19-survivors will not use narrative-provided meanings to further their worldviews and identity projects, and suit new consumption purposes and relationship statuses. Various survivors will fence off the narrative world of the pandemic, close the portal, and as such engage in strategies that trans-mutilate the narrative benefits passed onto them. The emotional distress they suffer will be cathartically powerless.

We wonder whether leaving our current novel narrative world will help consumers eventually. Will citizens suffer more after this episode, because they have experienced the benefits, yet are unable to escape their daily lives? We answer that citizens will suffer more soon after this narrative world has ended—but less eventually—if they analyse and take away the narrative benefits so as to transform the daily lives they can never escape.


[1] van Laer, Tom, Jennifer Edson Escalas, Stephan Ludwig, and Ellis A. van den Hende (2019), “What Happens in Vegas Stays on Tripadvisor? A Theory and Technique to Understand Narrativity in Consumer Reviews,” Journal of Consumer Research, 46 (2), 267–85. doi:https://doi.org/10.1093/jcr/ucy067

[2] “[F]or peripatetic (auto)didacticism is the homo narrans’s preferred mode of knowing” (italics in original): Joy, Annamma and John F. Sherry (2003), “Speaking of Art as Embodied Imagination: A Multisensory Approach to Understanding Aesthetic Experience,” Journal of Consumer Research, 30 (2), 259-82. doi:https://doi.org/10.1086/376802

[3] Gerrig, Richard J. (1993), Experiencing Narrative Worlds: On the Psychological Activities of Reading, New Haven, CT: Yale. doi:https://yalebooks.yale.edu/book/9780300054347/experiencing-narrative-worlds

[4] E.g. Contagion (2011), https://www.imdb.com/title/tt1598778/

[5] E.g. Bhopal Express (1999), https://www.imdb.com/title/tt0281656/

[6] https://www.eastasiaforum.org/2020/05/03/central-bankers-open-up-the-pandemic-box/

[7] Prof Annelise Riles, https://einaudi.cornell.edu/annelise-riles-secret-life-central-bankers

[8] E.g. my colleague A/Prof Andrew Edgar: https://auspublaw.org/2020/03/law-making-in-a-crisis-commonwealth-and-nsw-coronavirus-regulations/

[9] https://www.sydney.edu.au/news-opinion/news/2020/04/28/experts-examine-the-covid-19-tracing-app.html

[10] As somewhat of an exception, as a blog funded by Australian universities, see https://theconversation.com/au/topics/coronavirus-5830.

[11] https://go8.edu.au/research/roadmap-to-recovery

[12] https://www.abc.net.au/news/2019-08-21/australian-universities-too-dependent-on-chinese-students-report/11427272

[13] https://global.oup.com/academic/product/the-death-of-expertise-9780190469412?cc=au&lang=en&

[14] Nottage, Luke R. and Nasu, Hitoshi and Butt, Simon, Disaster Management: Socio-Legal and Asia-Pacific Perspectives (May 12, 2013). ASIA-PACIFIC DISASTER MANAGEMENT: COMPARATIVE AND SOCIO-LEGAL PERSPECTIVES, Simon Butt, Hitoshi Nasu and Luke Nottage, eds., Springer, pp. 1-58, 2014; Sydney Law School Research Paper No. 13/36. Available at SSRN: https://ssrn.com/abstract=2263953

[15] Frank Furedi, Coronavirus: Pandemics remind us of the power of community [[=“Adversity Begets Brave New World” in print version] The Australian (2-3 May 2020)

[16] Daniel Aldrich, https://press.uchicago.edu/ucp/books/book/chicago/B/bo13601684.html

[17] https://www.eastasiaforum.org/2020/04/30/rural-taiwans-community-cooperation-against-covid-19/

[18] https://www.economist.com/asia/2020/03/30/south-korea-keeps-covid-19-at-bay-without-a-total-lockdown

[19] https://asiatimes.com/2020/04/why-japan-gets-no-covid-19-respect/

[20] https://www.eastasiaforum.org/2019/07/25/abe-and-the-ldp-remain-dominant-after-japans-upper-house-elections/

[21] https://www.eastasiaforum.org/2020/04/28/japans-timid-covid-19-response/

[22] https://www.theguardian.com/world/2020/may/04/japan-to-extend-state-of-emergency-covid-19-amid-fears-second-wave-could-cripple-tokyo-hospitals

[23] https://www.japantimes.co.jp/news/2020/05/03/national/japan-partially-relax-interpersonal-contact/#.Xq9dzpolGUY

[24] https://time.com/5813619/japan-coronavirus-lockdown/

[25] https://www.japantimes.co.jp/opinion/2020/04/14/commentary/japan-commentary/coronavirus-japans-constitution/#.Xq9e_ZolGUY

[26] See generally Gustafsson et al (2019) https://www-tandfonline-com.ezproxy1.library.usyd.edu.au/doi/full/10.1080/09557571.2019.1623174

[27] https://www.theguardian.com/world/commentisfree/2020/apr/21/sweden-covid-19-policy-trust-citizens-state

[28] Abe and Nottage (2006 1st ed) http://www.austlii.edu.au/au/journals/ELECD/2006/184.html

[29] Wolff, Leon and Nottage, Luke R. and Anderson, Kent, Introduction: Who Rules Japan? (February 19, 2015). WHO RULES JAPAN? POPULAR PARTICIPATION IN THE JAPANESE LEGAL PROCESS, L. Wolff, L. Nottage and K. Anderson, eds, Edward Elgar, UK & USA, 2015; Sydney Law School Research Paper No. 15/10. Available at SSRN: https://ssrn.com/abstract=2567552

[30] Nottage, Luke R., Translating Tanase: Challenging Paradigms of Japanese Law and Society (May 27, 2006). Victoria University of Wellington Law Review, Vol.39, No. 4, pp. 755-778, 2009; Sydney Law School Research Paper No. 07/17. Available at SSRN: https://ssrn.com/abstract=921932

[31] Furedi 2020, op cit.

Endurance in Japanese Law

Written by Leon Wolff (QUT), with Giorgio Fabio Colombo (ANJeL-in-Europe Convenor, Nagoya U), Luke Nottage (USydney) and Heather Roberts (ANU)

The five articles collected in Issue 49 of the Journal of Japanese Law (for the northern hemisphere “Spring” of 2020) is a celebration of Europe’s enduring legal engagement with Japan. It reflects on the strength of legal links between Europe and Japan – some long-lasting; others fleeting; and yet others, emerging and evolving. It investigates the persistence of institutional practices and norms in Japanese legal system, large tracts of which have been adopted and adapted from 19th century continental European law as well as some recent legal innovations inspired by European examples. And it celebrates this work, whether by way of country reports or scholarly investigations, in this Journal – the world’s only enduring journal dedicated to Japanese law, published and edited in Europe. 

The reports and papers in this issue, and some more to come in the next issue, emanate from a Japanese law conference held on 23 September 2019 in the university town of Pavia in the Lombardy region of northern Italy.[1] Jointly organised by the Australian Network for Japanese Law (ANJeL) and Professor Giorgio Fabio Colombo, an Italian expert on the Japanese legal system based at Nagoya University, this event was intended to be an inaugural ANJeL-in-Europe event. The monastic-like University of Pavia, with a history tracing back to the 14th century, certainly made for an impressive site to inspire hopes for future research activities on Japanese law in Europe into the future. ANJeL, too, has strong connections with Europe. ANJeL co-director Luke Nottage, for example, has held research fellowships in Germany and Italy as well as having made explicit comparisons with European law in his corpus of scholarship on Japanese business and consumer law. Co-director Leon Wolff, as his surname might indicate, has German heritage. And, as a cross-institutional network established in 2002 for research, teaching and community engagement,[2] ANJeL has welcomed European experts to its advisory board, European researchers to its global conferences, and European law teachers to its signature offshore teaching program in Kyoto and Tokyo co-organised at Ritsumeikan University campuses each February. 

Less than six months after the Pavia event, ANJeL’s plans to base future collaborative research events on Japanese law in Europe have been put on ice. This is due to the sudden and shocking intervention the COVID-19 global pandemic. Since the initial reports of a novel coronavirus emerging from the live animal wet markets in Wuhan, China, COVID-19 has spread relentlessly across the world. According to the World Health Organisation, it had infiltrated 23 countries, infecting about 2 million people and causing 123,000 deaths.[3] Northern Italy, where the ANJel-in-Europe conference was held, became one the worst hit epicentres for the disease. The per-capita death rate remained the highest at the time of writing. This public health crisis has not only cost lives; it has shuttered swathes of the global economy, halted travel and reconfigured human interaction. Uncertainty is the new norm. It is unclear when the pandemic will be brought under a control; when a vaccine will become available; what restrictions will be imposed or relaxed; or how the world will change after the worst is over.

One thing, however, is certain. The pandemic will not endure. Although it will carry long-lasting effects, it will come to an end.

This observation stands in contrast to the overarching theme of this collection of papers: endurance. Specifically, the contributors have posed two linked research questions that engage this theme. The first is about the nature of the legal relationship between Japan and different parts of Europe. Why is there longstanding legal exchange between Japan and some parts of Europe, and only fleeting or emerging links in others? What historical and contemporary trends explain the unevenness in the Europe-Japan legal relationship? The second question concerns the functioning of key Japanese legal institutions, specifically, the judiciary, the legal profession and the criminal justice system. To what extent do the traditional functions of these legal institutions endure or persist despite the overlay of reform, the forces of (post-)modernisation and the pressure of interest groups? And how do we explain Japan’s tendency for institutional evolution rather than transformative change?

A report on “The State of Japanese Legal Studies in Europe” is the first comprehensive attempt to map Japanese legal studies across Europe. Reflecting on the trajectory of Japanese legal studies across the continent, the relative influence of Japanese Studies or Comparative Law on this trajectory, and the key research or teaching initiatives, the team of contributors covers Italy (Giorgio F. Colombo), France (Béatrice Jaluzot), Israel (Wered Ben-Sade), Scandinavia (Roger Greatrex), Spain (Francisco Barberán), Belgium and The Netherlands (Dimitri Vanoverbeke), Germany (Harald Baum and Moritz Bälz) and the United Kingdom (Luca Siliquini-Cinelli). Although the Japanese legal system is accessible to many European legal researchers because the Japanese system of codified laws draws heavily on a patchwork of European transplants, the motivations among Europeans to engage seriously with Japanese law vary widely. It might be inspired by the strong tradition of Japanese law scholars to research aspects of  European law and forge scholarly links (such as France); the growth of the Japanese economy since the 1970s and its significance to European economies (such as Germany and the Low Countries); the lure of Japanese society and culture (such as Italy and Spain); or the personal passions and scholarly initiatives of individual researchers (all countries, but consider especially Israel and Scandinavia). Japanese law scholarship – whether long-lasting (France), rich and voluminous (Germany), emerging (Italy), patchy (Scandinavia) or nascent (Israel) – finds diverse expression across Europe.

The next three articles explore different legal institutions in Japan: the legal profession (Masako Kamiya), the judiciary (Souichiro Kozuka) and the criminal justice system (David Johnson and Dimitri Vanoverbeke). In “The Style and Role of Judgments by Japanese Courts: How They are Written and Read”, Kozuka argues that case reporting decisions in Japan reflect a deliberate judicial policy of social conservatism. Specifically, which decisions get published in official reporter series, and how they should be written, reflects an institutional imperative to maintain public confidence in the court system through the cautious development of social policy through law; this contrasts with the broader goals of the common law system to ensure  incremental and coherent development of legal doctrine itself. Kozuka, however, rejects the view that the courts, especially the Supreme Court, are archly conservative. Rather, through an analysis of recent legal decisions on controversial issues, the Court and the Japanese judiciary as a whole ensure that the development of social policy through the law is carefully aligned with legislative history, accepted canons of statutory interpretation and criterion-referenced balancing tests.

In “Disciplinary Procedure: What it Tells Us about Practicing Attorneys in Japan”, Kamiya explores the disciplinary and dispute resolution procedures available to clients dissatisfied with the conduct of their case by their lawyers. Kamiya argues that, to be sure, lawyers take ethical and misconduct complaints seriously, and the Japanese Bar’s oversight powers can be successful in punishing and weeding out serious offenders of legal ethics. However, Kamiya makes the case that bar associations’ complaints-handling and dispute resolution procedures do little to enhance the autonomy and dignity of the legal profession. This is because ethical oversight is premised on the narrower, neo-liberal view of the legal profession as a market-based service-provider rather than a broader, public-oriented philosophy of lawyers defending the rule of law and constitutional freedoms.

In “The Limits of Change in Japanese Criminal Procedure”, Johnson and Vanoverbeke express reservations about the substantive impact citizen participation has had on the Japanese criminal justice system. Although Japanese citizens judge can make findings of fact and law in serious criminal cases as lay judges, can participate in criminal trials as victims of crime, and can review non-charge decisions by prosecutors, these reforms have not had the desired democratic impact that reformers envisaged. The authors argue that this is because the reforms are too narrowly targeted and, as a result, have largely cemented the status quo rather than transformed criminal justice.

In “Gender and Law Scholarship in the Law in Japan Field: A Comprehensive Bibliographic Study”, Levin and Hiraoka provide a valuable resource for researchers by indentifying around 150 works published between 1962 and 2019, divided into multiple sub-topics. Indeed, their listing suggests that gender is not only an “enduring” topic in the English-language literature on Japanese law, but also perhaps an “escalating” topic. The second edition of Japanese Business Law in Western Languages[4] had already identified around 40 publications in English (plus several in German and French) directly related to women or gender, including one as early as 1979,[5] in its Part III (Individual Works: Selective Bibliography 1970-2012). This is despite that Bibliography volume being focused on Japanese law related to business, and deliberately not attempting to be comprehensive. Most of those 40-odd publications were listed under Labor Law, which also included many publications on part-time work generally. Some such publications are also listed, noting their indirect impact on women, in this helpful more recent and wide-ranging bibliography by Levin and Hiraoka.

These articles make important contributions to our understanding of the endurance of institutional design and function in the Japanese legal system. In particular, they show that conservatism — whether it is in the cautious management of reported case law, the neo-liberal philosophy that defines legal ethics, or the narrowly-focused scope of criminal justice reforms — ensure gradual transformation[6] rather than radical change in important areas of the Japanese legal system.


[1] For the conference program, key participants and abstracts of presentations, see https://japaneselaw.sydney.edu.au/2019/04/japanese-law-compared-past-present-and-future/.

[2] For more information, including about (gratis) membership, see http://www.anjel.com.au/.

[3] See https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (as of 15 April 2020).

[4]Harald Baum, Luke Nottage, Joel Rheuben and Markus Thier,Japanese Business Law in Western Languages: An Annotated Selective Bibliography (Hein, New York, second edition, 2013).

[5] Catherine Brown, “Japanese Approaches to Equal Rights for Women: The Legal Framework”, in: Law in Japan 12 (1979) 29-56. These publications were identified by searching under “equal opportunity” or “equal opportunity law” (8 separate publications), “equality” (11), “gender” (7), “women” (11) and “sexual harassment” (3) without double-counting those with several of these terms in the titles.

[6] Compare also Luke Nottage, Leon Wolff and Kent Anderson (eds) Corporate Governance in the 21st Century: Japan’s Gradual Transformation (Elgar, 2008), especially chapter 2 (with a version also at https://ssrn.com/abstract=885367).


New Frontiers in International Arbitration for the Asia-Pacific Region (8): Confidentiality vs Transparency in ICArb and ISDS

Confidentiality is still widely seen as significant advantage of international commercial arbitration (ICA) over cross-border litigation, especially perhaps in Asia. This can be seen in rules of most arbitral institutions. Automatic (opt-out) confidentiality is also now found in many national laws, including statutory add-ons to the UNCITRAL Model Law and/or through case law for example in New Zealand, then Hong Kong, Singapore, Malaysia, and eventually Australia.

Yet there remain variations in the timing of these developments as well as the scope and procedures associated with exceptions to confidentiality. There is also no confidentiality provided in Japan’s later adoption of the Model Law, although parties mostly choose the JCAA so opt-in to its Rules, which have somewhat expanded confidentiality obligations since 2014.

Another recent complication is growing public concern over arbitration procedures through (especially treaty-based) investor-state dispute settlement (ISDS), especially in Australia since an ultimately unsuccessful treaty claim by Philip Morris over tobacco plain packaging legislation (2011-15). Statutory amendments in 2018 reverse automatic confidentiality for Australia-seated ISDS arbitrations where the 2014 UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration. Concerns over ISDS may impede Australia enacting provisions for confidentiality of arbitration-related court proceedings, which could not be revised recently in New Zealand against the backdrop of its new government’s anti-ISDS stance.

Growing transparency around ISDS arbitration is welcome given greater public interests involved in such cases, but transparency should not be simply transposed into commercial dispute resolution through ICA as the fields are overlapping but distinct. Confidentiality in ICA has the disadvantage of exacerbating information asymmetry, making it harder for clients and advisors to assess whether particular arbitrators and lawyers provide value for money. But confidentiality allows arbitrators in particular to be more robust in proceedings and drafting rulings, thus countering the rise in ICA delays and especially costs. More transparency around ISDS, as well as initiatives like “Arbitrator Intelligence” and experiments in reforming Arbitration Rules (eg recently by the ICC), can help reduce information asymmetry for users anyway, while retaining various advantages of confidentiality particularly in ICA.

My draft paper, presented recently in Rome and for the USydney conference on Friday 15 November, elaborates these tensions between confidentiality and transparency in ICA and ISDS, focusing on Australia and Japan in regional context. Both countries still get few ICA cases but are trying to attract more [see the ABA inquiry report by Roger Gyles QC now available via https://austbar.asn.au/singapore-2019/papers]. They are taking somewhat different approaches to confidentiality in that field, while negotiating investment treaties that increasingly provide transparency around ISDS arbitration.

Nottage, Luke R., Confidentiality versus Transparency in International Arbitration: Asia-Pacific Tensions and Expectations (August 29, 2019). Sydney Law School Research Paper No. #19/52, August 2019. Available at SSRN: https://ssrn.com/abstract=3444692

Japanese Law Compared: Past, Present and Future

The Inaugural ANJeL-in-Europe symposium, organised by the new ANJeL-in-Europe convenor A/Prof Giorgio Colombo from Nagoya University, will be hosted by the University of Pavia on 23 September 2019. This workshop-style symposium will share current (or planned) research comparing Japanese law. Presenters will explain not only their (expected) findings but also whether and how their choice of topic or research method may be influenced by their home jurisdiction’s legal tradition or approach towards comparative law. The symposium will then consider scope for productive research collaboration, as well as potential joint teaching and community outreach initiatives, across national borders within and beyond Europe. ANJeL co-directors and other key members will share their experiences of such cross-institutional cooperation since 2002. A broader aim of this symposium is to explore establishing a similar network of scholars and legal professionals across Europe, interested in engaging with Japanese law.

Continue reading “Japanese Law Compared: Past, Present and Future”

New Frontiers in International Arbitration for the Asia-Pacific Region (2): Japan, China, Hong Kong, Australia and Singapore

Here are some papers to be presented and discussed at a symposium on Monday 15 July at Hong Kong University, as part of a joint research project over 2019 with the University of Sydney Law School.

Continue reading “New Frontiers in International Arbitration for the Asia-Pacific Region (2): Japan, China, Hong Kong, Australia and Singapore”

Corporate behaviour, dispute resolution and Japanese law: JSAA conference session (3 July 2019)

This is the title of a panel for the next Japanese Studies Association of Australia (JSAA) conference, to be held 1-4 July at Monash University in Melbourne. The panel will be facilitated by ANJeL and chaired by its ANU-based co-director, A/Prof Heather Roberts. The panel session (5:5) has been set for Weds 3 July 9-10.30am.
Proposed presenters are:
• Prof James Claxton, Kobe University, Prof Luke Nottage, University of Sydney (contact person), & Dr Nobumichi Teramura, UNSW
• A/Prof Leon Wolff, Queensland University of Technology
• Prof Veronica Taylor, Australian National University
• A/Prof Stacey Steele, Melbourne Law School
The four-paper panel will examine how leadership in Japanese firms is evolving (or not), in the context of recent regulatory developments in insolvency law, labour law and corporate governance. It will also consider how this may correlate with attempts to encourage firms in Japan as well as from abroad to make more use of new international arbitration and mediation facilities being developed or proposed recently for Japan.

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Japanese (legal) history, culture and “hidden” Christianity

[This is a research note for a documentary series being developed from Sydney analysing the world-wide spread of Christianity, which now attracts more believers in Asia and Africa than in the West. Christianity has not recovered from severe persecution in Japan during the 16th century, including martyrdoms in Nagasaki and Kyoto, but it has left surprising legacies – as noted even by the Gekkeikan sake company from southern Kyoto. The story reveals interesting points of intersection with Japan’s history, culture and law.]
Japan is a fascinating case study of a country in Asia that had an early and positive encounter with Christianity from the mid-16th century, but then severe persecution by Shoguns (generalissimos) seeking to maintain political control (Part 1 below). Western powers forced the country to reopen to the world from the mid-19th century and to allow Christianity to be promoted again. But the new government leaders pursued a strong secularist agenda to modernize the nation and rid itself of “unequal” trade treaties. This paradoxically fed into support of nationalist and militarist State Shinto, resulting in pressure on the Church as well as the Pacific War (Part 2). Christianity never took off in a big way in Japan, even after WW2 (Part 3), partly because it was too associated with America as a potential (& eventually actual) occupier, in contrast with Korea where Christianity and the West were seen by nationalists as potential allies against the Japanese as colonisers. Yet Christianity arguably has had a “hidden” influence through many centuries in Japan (Part 4). It can be seen as an example of how a small but dedicated following can have a disproportionate influence across many spheres – big and small (Part 5).

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Review – Rieko Kage “Who Judges? Designing Jury Systems in Japan, East Asia and Europe”

[Draft presentation / review for an authors-meet-readers session at the Asian Law & Society Association conference, 29 Nov – 1 Dec, Bond University. Remarks / asides in [[square brackets] and/or hyperlinked references, plus some edits, were adjusted afterwards for a final version being published in (2019) Asian Journal of Law and Society]
(Cambridge University Press 2017) xiii + 264 pages, ISDN 978-1-107-19469-4 Hardback
Reviewed by: Luke Nottage
University of Sydney Law School & Australian Network for Japanese Law (ANJeL)
This is a fascinating, compellingly argued, carefully researched and beautifully written empirical analysis of how the relative strength of “new left” against traditional right and old left political parties impacts differently on the introduction and design of “jury” or “lay judge” systems since the 1990s in East Asia and beyond. Kage’s mixed-method study convincingly shows how such political dynamics result in different degrees to which power is transferred away from professional judges and towards lay people being involved in adjudicating criminal matters. This transfer of power, which reduces judicial independence vis-à-vis the public (by involving them in adjudication) during an era where independence has often been growing vis-à-vis politicians, is most extensive in Spain (with a lay judge system was introduced in 1995), quite extensive in Japan (with the saiban’in system introduced in 2004, although not implemented until 2009), less extensive in South Korea (2007), and least extensive in Taiwan (comparing a “lay observer” Bill submitted in 2012). Key benchmarks for such a comparative assessment (summarized in Table 1.2 at p17) are whether professional judges retain powers to determine which cases end up being heard by lay judges, and voting rules allow lay judges to dominate binding decisions (p15).

Continue reading “Review – Rieko Kage “Who Judges? Designing Jury Systems in Japan, East Asia and Europe””