Hayes on Antitrust Reform in Postwar Japan

Gregory Hayes, a 2025 graduate of Northwestern Law, has published The Failings of Post-War Japanese Antitrust Reforms, in the Northwestern Journal of International Law and Business:

This paper discusses the antitrust reform measures taken during the occupation of Japan following the end of World War I. These antitrust reforms included the dissolution of the zaibatsu business groups and the adoption of the Antimonopoly Act. However, the trust-busting and antitrust measures taken by Japan failed to prevent the eventual rise of keiretsu business groups and lower the concentration of corporate ownership in Japan. The primary reasons behind this failure were the inability of the reformers to fully dismantle the zaibatsu business groups and the changing priorities of the reformers due to the growing threat of the spread of communism in Asia. Despite the shortcomings of the Japanese antitrust reforms, the existence of the keiretsu business groups within Japan did not prevent Japan from successfully democratizing, experiencing significant economic growth, or reducing income inequality.

--Dan Ernst 

Ramseyer on the Ainu as Case Study of Economic Performance and the Colonized

J. Mark Ramseyer, Harvard Law School, has posted When Economic Performance Turns on the Colonized Rather than the Colonist:

Acemoglu, Johnson & Robinson posit that colonizing countries promoted growth in places where their citizens planned to live by introducing rational economic and legal institutions. By contrast, where they faced high mortality rates, they introduced only "extractive" institutions. They took what they could and left. The former places thrived; the latter failed. Disproportionately, Acemoglu, et al.'s countries with high settler mortality rates were places that had only recently made the transition from hunter-gatherer economies to settled agriculture, if they had made it at all. Unlike agriculturalists, hunter-gatherers generally lack any sense of private ownership over the most obvious capital asset-land. Not owning that capital asset, they have little reason to defer gratification and invest in it. And for the most part, they relentlessly fight each other over resources and women. With no tradition of capital ownership or long-term investments but with chronic and lethal violence, most hunter-gatherers would not have been able effectively to exploit rational legal institutions anyway. I illustrate (only illustrate; I do not claim to prove) this intuition with the example of the Japanese Ainu. As of the mid-19th century, most Japanese lived either in settled agricultural communities or in booming commercial cities. The hunter-gatherer Ainu, however, lived in the northern-most island of Hokkaido. When the Japanese government introduced western legal institutions at the turn of the century, it applied the new rules both to the agricultural and commercial regions outside of Hokkaido and to the hunter-gatherer communities within Hokkaido. Over most of Japan, men and women quickly learned to exploit the opportunities presented by the new legal system. In Hokkaido, the Ainu failed to do any of that. In time, they simply intermarried with the other Japanese and disappeared. The innovation and investment that would eventually transform Hokkaido came instead with immigrants from the rest of Japan. 

--Dan Ernst

Buddhism and Comparative Constitutional Law

Just published, open-access: Buddhism and Comparative Constitutional Law (Cambridge University Press), edited by Tom Ginsburg, University of Chicago, and Benjamin Schonthal, University of Otago:

Buddhism and Comparative Constitutional Law offers the first comprehensive account of the entanglements of Buddhism and constitutional law in Sri Lanka, Myanmar, Thailand, Cambodia, Vietnam, Tibet, Bhutan, China, Mongolia, Korea, and Japan. Bringing together an interdisciplinary team of experts, the volume offers a complex portrait of “the Buddhist-constitutional complex,” demonstrating the intricate and powerful ways in which Buddhist and constitutional ideas merged, interacted and co-evolved. The authors also highlight the important ways in which Buddhist actors have (re)conceived Western liberal ideals such as constitutionalism, rule of law, and secularism. Available Open Access on Cambridge Core, this trans-disciplinary volume is written to be accessible to a non-specialist audience.

Among the contributions: "Buddhism and Constitutionalism: A Comparison with the Canon Law" by Richard H. Helmholz.  TOC after the jump.

--Dan Ernst

Xiao on Modernizing Chinese and Japanese Family Law

Weilin Xiao, a  J.S.D. Candidate at Yale Law School, has posted Expansion and Restriction: Two Paths Towards Modernizing Family Laws in Japan and China, 1868-1930:

Before their encounters with the Western powers in the 19th century, Chinese and Japanese societies were both deeply rooted in traditional family systems that constituted their basic social formations. However, as legal modernization dawned, these two countries took nearly antithetical approaches to reforming their customary family laws. For the most part, the Japanese legal elites of the Meiji regime expanded the power of the family and emphasized its political function. In sharp contrast, the Chinese legal elites of the late Qing and Republican eras restricted the power of the family and downplayed its significance. Although many scholars have studied the modernization of family laws in Japan and China, respectively, the differences between the two countries and the underlying reasons for these differences have not been adequately explored. This study seeks to fill the gap.

By comparing the legislative history of two nations, I argue that this divergence originated from the different historical roles that family systems played and the different political contexts legal elites found themselves in during legal modernization. In Japan, the family system was historically “politically connected” with the state, and the Meiji regime had fully established its authority over this system during the process of modern codification. Hence, Meiji political elites thought it best to integrate people into the new absolutist Emperor regime by leveraging the political obedience of the family. In contrast, the Chinese family system had become “politically disconnected” from the state by late imperial times. Following the Republican Revolution, the Guomindang regime faced competing political forces, which seriously threatened its power. Therefore, political elites hoped to abolish customary family laws, thereby weakening the traditional family system that may have jeopardized governmental centralization and social integration. They also believed that this would help them portray themselves as liberal and modern, which in turn would help them win broader political support from society.

A draft of this article won the 2021 Colin B. Picker Graduate Prize by the Young Comparativist Committee of the American Society of Comparative Law.

--Dan Ernst

Property, Religion and State Formation in the Meiji Constitution

[We have the following announcement from the Asian Legal History Seminar Series.  DRE]

Property, Religion, and State Formation: The Meiji Constitution in the Context of East Asian History

Speaker: Professor Kentaro Matsubara (University of Tokyo)
Respondent: Professor Kevin YL Tan (National University of Singapore)

This presentation discusses some wider significances of the Japanese Constitution of 1889, by looking into its implications in the social changes of the time, both domestically and internationally. It begins by  focusing on the relationships between the protection of property and the formation of the state in Tokugawa Japan and Qing China, highlighting the differences in the roles of what we might call religious beliefs. The protection of the private property is seen as a basic function of the modern sovereign state.  However, before Japan was reformulated into modern a sovereign state through such processes as the promulgation of the Meiji Constitution, the relationships between state bureaucracy and property regimes functioning at the level of local communities was far more complex than envisaged in such a modern  state. Moreover, it greatly differed from the state of affairs in traditional Chinese society. This paper looks into these differences, the different relationships between state bureaucracy and local communities, and the different formations of local communities, in turn tightly connected to roles of religious beliefs and religious power. In conclusion, it will be discussed how the differences in traditional social formation  would influence the ways in which China and Japan would integrate themselves into the Westphalian system of sovereign states in the 19th century.

Date: Friday 14th January 2022.  Time: 3:00 – 4:30pm (HK TIME) Via Zoom.  All are welcome, but registration is required, via this link.] 

Conveners
Dr. Michael Ng (HKU Faculty of Law)
Dr. Alastair McClure (HKU Department of Histor

Kostal, "Laying Down the Law The American Legal Revolutions in Occupied Germany and Japan"

New from Harvard University Press: Laying Down the Law: The American Legal Revolutions in Occupied Germany and Japan, by R. W. Kostal (Western University, Ontario). A description from the Press:

A legal historian opens a window on the monumental postwar effort to remake fascist Germany and Japan into liberal rule-of-law nations, shedding new light on the limits of America’s ability to impose democracy on defeated countries.

Following victory in World War II, American leaders devised an extraordinarily bold policy for the occupations of Nazi Germany and imperial Japan: to achieve their permanent demilitarization by compelled democratization. A quintessentially American feature of this policy was the replacement of fascist legal orders with liberal rule-of-law regimes.

In his comparative investigation of these epic reform projects, noted legal historian R. W. Kostal shows that Americans found it easier to initiate the reconstruction of foreign legal orders than to complete the process. While American agencies made significant inroads in the elimination of fascist public law in Germany and Japan, they were markedly less successful in generating allegiance to liberal legal ideas and institutions.
Drawing on rich archival sources, Kostal probes how legal-reconstructive successes were impeded by German and Japanese resistance on one side, and by the glaring deficiencies of American theory, planning, and administration on the other. Kostal argues that the manifest failings of America’s own rule-of-law democracy weakened U.S. credibility and resolve in bringing liberal democracy to occupied Germany and Japan.

In Laying Down the Law, Kostal tells a dramatic story of the United States as an ambiguous force for moral authority in the Cold War international system, making a major contribution to American and global history of the rule of law.

Advance praise:

“In 1945, Americans boldly set out to remake the legal systems of occupied Japan, where they knew nothing about Japanese law, and Germany, where they often ignored German experts. Kostal’s book is a wonderfully novel, clear, and caustic history of the successes and failures of these endeavors.”—Robert W. Gordon

“This much-needed and compelling book examines American legal reform in occupied Germany and Japan, emphasizing the centrality of individual rights and the rule of law to American conceptualizations of democratic transformation. Kostal’s close attention to the successes, hypocrisies, and shortcomings of these American efforts offers vital insights while highlighting the intellectual, institutional, and moral limits of American visions of postwar democratization.”—Jennifer M. Miller

More information is available here.

-- Karen Tani

The Limits of Law: Cases

We asked the 2018-19 Davis Fellows the following question: how has your time at the Davis Center led to new insights about the reach and limits of law and legalities? Here is one set of answers that relate to each scholar's area of study (our other posts in this series are here and here):

Xia on justice and nationalism in wartime China

Back in 2017, Yun Xia (Valparaiso University) published Down with Traitors: Justice and Nationalism in Wartime China with the University of Washington Press. From the publisher:

Throughout the War of Resistance against Japan (1931-1945), the Chinese Nationalist government punished collaborators with harsh measures, labeling the enemies from within hanjian (literally, "traitors to the Han Chinese"). Trials of hanjian gained momentum during the postwar years, escalating the power struggle between Nationalists and Communists. Yun Xia examines the leaders of collaborationist regimes, who were perceived as threats to national security and public order, and other subgroups of hanjian-including economic, cultural, female, and Taiwanese hanjian. Built on previously unexamined code, edicts, and government correspondence, as well as accusation letters, petitions, newspapers, and popular literature, Down with Traitors reveals how the hanjian were punished in both legal and extralegal ways and how the anti-hanjian campaigns captured the national crisis, political struggle, roaring nationalism, and social tension of China's eventful decades from the 1930s through the 1950s.

Praise for the book:

 "Yun Xia's perceptive study traces the legal definition and the political usages of the profoundly emotive word hanjian (traitor). She looks at the years of the Resistance War and shows the ways in which the designation was used as China's political world was increasingly polarized." -Diana Lary

"Deeply researched and intriguing. Yun Xia details the scope of the traitor trials, which dwarfed the war crime trials of the Japanese." -Barak Kushner

"Wartime collaboration breeds treason trials-but trials in turn create collaborators by defining and punishing them. This book, the first in English, reconstructs the tangled political and legal processes in China that singled out those charged with aiding the Japan during the war, and that went on to influence mass campaigns after 1949." -Timothy Brook

Further information is available here.