Japanese Law IN GENERAL


Baum, Harald & Nottage, Luke R., Japanese Business Law in Western Languages: An Annotated Selective Bibliography

(1998, Fred B Rothman): http://www.amazon.com/Japanese-Business-Law-Western-Languages/dp/0837703662

Tom Ginsburg, Luke Nottage & Hiroo Sono (eds),

The Multiple Worlds of Japanese Law:

Disjunctions and Conjunctions

(2001, University of Victoria):


CCH Business Law in Japan, Volume 1

(2008, CCH Singapore/Tokyo, ISBN 978-4-915845-08-6): www.cch-japan.jp/product/08BLJ.htm

(containing my co-authored chapters on Product Liability and on Contract Law; adapted from my edited CCH Japan Business Law Guide two-volume looseleaf)

Tanase, Takao (trans & ed by Nottage, Luke R. / Wolff, Leon T.), Community and the Law: A Critical Reassessment of American Liberalism and Japanese Modernity

(January 2010, Edward Elgar): http://www.e-elgar.co.uk/Bookentry_Main.lasso?id=13711

“Takao Tanase seamlessly combines sociolegal and philosophical analysis as he explores the tensions between individual legal rights and communitarian values in settings ranging from post-divorce visitation rights to tort liability, lawyer-client relationships, and rising litigation rates. Contrasting Japan with the individualistic thrust of American law, Tanase stresses the importance of building legal processes that encourage stronger social and communal bonds. Students of law and society on all continents will find rich food for thought in this intellectually bold and intriguing volume.”

– Robert A. Kagan, University of California, Berkeley, US

Contents: Part I: Introduction 1. Introduction — Community and the Law: A Critical Reassessment of American Liberalism and Japanese Modernity

Part II: A Critique of American Liberalism 2. Invoking Law as Narrative: Lawyers’ Ethics and the Discourse of Law in the United States 3. The Moral Foundations of Tort Liability 4. Post-Divorce Child Visitations and Parental Rights: Insights from Comparative Legal Cultures

Part III: A Normative Theory of Community and the Law 5. Rights and Community 6. Communitarianism and Constitutional Interpretation

Part IV: A Re-Evaluation of Japanese Modernity 7. Japanese Modernity Revisited: A Critique of the Theory and Practice of Kawashima’s Sociology of Law 8. Litigation in Japan and the Modernization Thesis

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: http://ssrn.com/abstract=921932

This paper, originally presented at a conference at UC Berkeley honouring the work of leading legal sociologist Takao Tanase, shows how a recently translated selection of his influential works contributes to debates about the best paradigm to explain Japanese law, as well as about the relationship between law and society more generally.

The culturalist paradigm prevalent until the 1970s argued that the Japanese don't like law, due to engrained Confucian traditions emphasizing harmony and hierarchy. Institutional barriers theory countered that the Japanese can't like law due to impediments discouraging engagement with the legal system. The elite management paradigm argued that conservative politicians, regulators and big business interests promoted this situation, especially after World War II, to manage the pace and direction of social change in Japan. In other words, the Japanese are made not to like law. By contrast, the economic rationalist paradigm stressed that often the Japanese do like law, with at least some comparatively clear-cut legal rules casting a clear shadow over out-of-court dispute settlement and deal-making.

Over the last decade the strengths and weaknesses of these various theories have been explored, and tested particularly in the context of a raft of socio-legal transformations underway in Japan. More studies are adopting a hybrid paradigm, applying more diverse methodologies to show how sometimes the Japanese like law, but sometimes they don't. Tanase's work contributes to this new trend by re-emphasising a neo-culturalist or communitarian impulse in (post-)modern Japanese law, and legal systems more generally. His conclusions and evidence are rooted in a hermeneutical understanding of our world, challenging epistemology that sharply distinguishes facts from norms, and thereby extreme liberal models of law and society. In his studies selected for translation, this approach is applied to fields as diverse as legal ethics, family law, tort law, civil litigation, and constitutional interpretation. Tanase's work is particularly refreshing and timely given the pace and breadth of law reform underway in Japan, but it also holds broader lessons both for jurists in other complex industrialized democracies, and for those engaged in Japanese Studies more generally.

Nottage, Luke R., Asia-Pacific Regional Architecture and Consumer Product Safety Regulation for a Post-FTA Era

(November, 19 2009). Sydney Law School Research Paper No. 09/125. Available at SSRN: http://ssrn.com/abstract=1509810

Imagine a transnational regime with these institutional features:

  1. Virtually free trade in goods and services, including a "mutual recognition" system whereby compliance with regulatory requirements in one jurisdiction (such as qualifications to practice law or requirements when offering securities) basically means exemption from compliance with regulations in the other jurisdiction. And for sensitive areas, such as food safety, there is a trans-national regulator.

  2. Virtually free movement of capital, underpinned by private sector and governmental initiatives.

  3. Free movement of people, with permanent residence available to nationals from the other jurisdiction - not tied to securing employment.

  4. Treaties for regulatory cooperation, simple enforcement of judgments (a court ruling in one jurisdiction being treated virtually identically to a ruling of a local court), and to avoid double taxation (including a system for taxpayer-initiated arbitration among the member states).

  5. Government commitment to harmonising business law more widely, for example for consumer and competition law.

No, this is not necessarily the European Union (EU). These aspects characterise the Trans-Tasman framework built up between Australia and New Zealand, particularly over the last two decades. Sometimes this has been achieved through treaties (binding in international law), sometimes in softer ways (such as parallel legislation in each country), and sometimes even through unilateral abrogation of national sovereignty. Both countries are also now actively pursuing bilateral and now some regional Free Trade Agreements (FTAs), especially in the Asia-Pacific. So can these Trans-Tasman initiatives, and perhaps even some EU developments, provide a template for true “Asia Pacific Community” (beyond what Australian Prime Minister Kevin Rudd apparently has in mind) or an “East Asian Community” (as suggested by the new Japanese PM, Yukio Hatoyama)?

More generally, the Global Financial Crisis (GFC) is generating a reorientation of burgeoning Asia-Pacific production chains towards exports within the region, in conjunction with a reassessment of market liberalisation policies themselves. In light also of the limited economic benefits of bilateral and even regional Free Trade Agreements, compared to multilateral initiatives, we should be looking for ways to promote additional “free but fair” movement of capital, people, services and goods throughout our region. Collaboration in regulating consumer product safety, financial markets, environmental protection, labour standards and investment regimes are only some of many possibilities explored in this paper. A more holistic, systematic and balanced approach to negotiating true Economic Partnership Agreements (EPAs) would assist not only Australia and New Zealand, but also partner countries that are already erecting new socio-economic regional architecture.

Nottage, Luke R., Law, Public Policy and Economics in Japan and Australia: Reviewing Bilateral Relations and Commercial Regulation in 2009

(August 9, 2009). Ritsumeikan University Law Review, Vol. 27, pp. 1-57, 2010; Sydney Law School Research Paper No. 09/71. Available at SSRN: http://ssrn.com/abstract=1446523

The paper is based on my contributions to the East Asia Forum blog (and my partially overlapping "Japanese Law and the Asia Pacific" blog) drawing mainly on developments from the end of 2008 through to mid-2009. Many topics are important not only within Australia and Japan, but also potentially for bilateral relations (for example, as novel dimensions to the FTA or 'Economic Partnership Agreement' already under negotiation between these two countries). Several topics (for example, the state of economics as a discipline after the GFC, neo-communitarian perspectives on comparative law and society, the legacy of the post-War Occupation of Japan) also address more broadly how we should (re)conceptualise law, economics and public policy particularly in the Asia-Pacific context.

As in my survey of developments over 2008, readers can read through these topics sequentially, as I tried to link them to previous postings and therefore create a 'chain novel' narrative effect. But readers may prefer to jump around the topics in their own order of interest, especially as some postings were uploaded initially in response to particular developments (such as announcements for major consumer law and then arbitration law reforms in Australia).

Nottage, Luke R., Economics, Politics, Public Policy and Law in Japan, Australasia and the Pacific: Corporate Governance, Financial Crisis, and Consumer Product Safety in 2008

(November 3, 2008). Sydney Law School Research Paper No. 08/134; Sydney Law School Research Paper No. 08/134. Available at SSRN: http://ssrn.com/abstract=1295064

This is an updated collection of my own postings on the new East Asia Forum blog. Created primarily by political economists from the Australian National University in mid-2008, the blog is attracting a wide readership and regular contributions from experts interested in or based throughout the rapidly evolving Asia-Pacific region. My starting point involves taking seriously Australian Prime Minister Kevin Rudd's call, just before his visit to Japan around the same time, for a new East Asian Community.

Thematically, my postings focus mainly on FDI and corporate governance, financial markets and consumer credit regulation, product safety regulation, and different countries' media coverage of these and other issues in the region. Geographically, postings mainly examine developments affecting Japan. But this is done often expressly in connection with Australia, as well as other countries in the Asia-Pacific region (including China, India, New Zealand, and the United States), with links also to developments in the European Union (EU).

Chronologically, postings were originally from July-October 2008, a particularly tumultuous period, but the events often connect to longer-term developments. They can be read one after the other, and the original order has been preserved. I tried to sequence each posting to link back especially to the previous one, as well as other postings by myself or other contributors to the blog, while addressing hot topics of the times. The hope, very loosely inspired by how Ronald Dworkin views judge-made law emerging like a 'chain novel', is that readers can begin to see my own (and perhaps others') underlying empirical and normative views on some important 'gradual transformations' in Japan and beyond.

Nottage, Luke R., Build Postgraduate Law Schools in Kyoto, and Will They Come - Sooner and Later?

Australian Journal of Asian Law; Sydney Law School Research Paper No. 07/29. Available at SSRN: http://ssrn.com/abstract=986529

This paper critically assesses many issues that have arisen or become more visible since new postgraduate 'law schools' got underway in April 2004 in Japan, focusing on those in Kyoto - a major centre of learning. It re-emphasises serious design flaws in the original reform proposal but notes some more promising tendencies subsequently. It argues that the new system remains unstable and inherently problematic for teachers, students, and the broader community. The paper concludes by proposing more thoroughgoing reforms, driven more by educators and a broader array of stakeholders. An Epilogue reinforces these observations with a preliminary analysis of the results of the first new National Bar Examination open to students from Law Schools throughout Japan, announced in late 2006.