Download Authority without Power: Law and the Japanese Paradox by John Owen Haley PDF

By John Owen Haley

This booklet deals a finished interpretive research of the function of legislation in modern Japan. Haley argues that the weak point of criminal controls all through eastern historical past has guaranteed the improvement and power of casual group controls according to customized and consensus to keep up order--an order characterised via outstanding balance, with an both major measure of autonomy for people, groups, and companies. Haley concludes through exhibiting how Japan's vulnerable felony procedure has strengthened preexisting styles of extralegal social keep an eye on, hence explaining the various basic paradoxes of political and social existence in modern Japan.

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Again preexisting patterns prevailed. 47 As the system evolved the crown prince would become emperor at an early age and also retire while still young. Japanese legal historians also point out other significant adaptations. One was apparently a relaxation of the stringent Chinese penalties and rules for prosecution of criminal cases. 50 Nevertheless, it appears that the Japanese were not as bound to a system of meting out exact punishments commensurate with specific offenses. 52 Whatever the explanation, Japanese legal historians generally agree that the ritsuryo, like the T'ang Code, did include separate proceedings for dealing with homicide, robbery, larceny, and other serious crimes as opposed to less serious property offenses.

In environments otherwise widely separated by space and culture, feudalism in both Europe and Japan was a response to the insecurity and disorder that followed the disintegration of central rule. No community suffers disorder long. Neither complete anarchy nor absolute stability are possible social conditions. The social demand for stability and security and the forces of change are both too strong. Consequently in both Europe and Japan individuals and communities threatened by disorder quickly traded autonomy for protection.

3 Imperial appointment of Yoritomo as shogun seven years later may thus be viewed as confirmation of power already ceded, but with it came the legitimacy of delegated powers and the capacity to rule by law. Yet, again in contrast to the European experience, such recognition reinforced the value of the authority otherwise so successfully challenged. Not, it appears, until the neo-Confucianist redefinition of ruler as lawmaker, as opposed to law as ruler-made, gained a foothold in the seventeenth century, as explained below, was this sustaining need for imperial authority conceptually threatened.

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