Some Aspects of Tokugawa Law

The fall of China to communist forces has brought many otherwise complacent people to the realization that the enemies of democracy are outnumbering its friends in Asia. This is not a new phenomenon. Facts and frankness require us to recognize that neither in the past nor present has Western democracy demonstrated the capacity to take root and grow in Asia. But the fact that the present trend is not only undemocratic but actively directed against our nation has kindled a new desire to understand the reasons for the difficulties of democracy in the Far East

Introduction to U.S.-Japanese Investment

The legal environment for foreign investment in Japan has undergone sweeping changes in the past year, both in the Japanese domestic legislation and in the international law spheres. New international law commitments started with findings of the International Monetary Fund (IMF) about a year and a half ago that Japanese economic conditions warranted a relaxation of foreign exchange controls, and after the necessary adjustments, on March 12, 1964, Japan arranged to shift her IMF status from an Article XIV country to an Article VIII country, meaning essentially that thereafter her foreign exchange budget was abolished and her current accounts (i.e., import-export payments, interest, royalties, dividends, etc.) became freely convertible into foreign exchange. But quota allocations were instituted to serve as new import control mechanisms for all non-liberalized import items (8-10%) in place of the prior foreign exchange controls. In parallel negotiations Japan arranged to become a member of the Organization for Economic Cooperation and Development (OECD) effective April 27, 1964. Japan thus became the twenty-fifth Article VIII nation out of 105 IMF members, and the twenty-first member of OECD

Japanese Judicial Review of Legislation: The First Twenty Years

The shift in 1947 from a political to a legal (or justiciable) constitution of Anglo-American design meant also a shift from professors to the courts as the authoritative expounders of the Constitution, though of course the leading critics and synthesizers are still the scholars. Soon followed, for the first time, a body of Supreme Court decisions which became the detailed sources of constitutional law, presaging adoption throughout the legal profession of a new juristic method in the public law field using scholarly theories where appropriate but rooted in case analysis. These changes in professional roles, sources and methods have caused a new emphasis on American constitutional studies and perhaps some dilution of the prior preferences for continental European theories. But these transitions have not taken place without some groping for direction, and it is the purpose of this introduction to outline briefly some of the postwar developments. Emphasis is placed on the functioning of Japanese judicial review, not its substantive results

Introduction: Perspectives on the Japanese Constitution after Twenty Years

The articles in this symposium are concerned with several major problems encountered en route from the promulgation to present social realization of the new style of Japanese constitutionalism. We have taken this opportunity to reflect after twenty years upon the problems of structure, political milieu, and continuity with the past. To some, continuity with the Meiji Constitution (1889-1947) might seem farfetched until we remember that it had several characteristics in common with the new Constitution: both followed foreign models (German and Anglo-American); both were far in advance of the social realities which they sought to transform; both were thus a product of an elitist ideal and granted from the top down (by Meiji oligarchs and SCAP/ Japanese drafters); neither was produced by a social upheaval, or granted in response to popular clamorings for power. Paradoxically, then, in the sweep of a century, the growth of the living constitution has been rather continuous, though there has been a rapid rate of achievement. Emphasis on continuity in this sense is important in focusing on the underlying contribution of the Japanese people to living constitutionalism. For it would be easy to see only elitist paternalism and popular passivity in the major historical events and overlook the almost unique social capacity of the Japanese for collective effort, even to insure individual rights to all in the routines of social and political life. This quality has been called creative followership, but in the more recent political process, it has become a creative participation, maximizing popular support of the Constitution, as befits a country whose major resource has always been its remarkable people. Both Japanese constitutions were, in this perspective, exciting experiments in a gamble for popular self-fulfillment based on the hope that there would develop enough right consciousness as leverage so that the people could pull themselves up by their own constitutional boot straps. To an encouraging degree they have

Comparative Law in Perspective

The use and study of comparative law has grown in scope and in importance—and no more so than in the area of commercial exchange between the United States and Japan. Comparative law is being applied more practically in the Courts; it is an agent of change and of harmonization between different peoples and economies. However, the respective concepts of law and its role in society, as well as the role of language in understanding the law, continue to make the use and study of comparative law a challenge. A real sensitivity to the cultural, structural and conceptual differences in the civil and common law systems requires an understanding of these problems

The Roles of Lawyers in U.S.-Japanese Business Transactions

This article deals with the organization, qualifications and roles of lawyers in U.S.-Japanese transactions, with emphasis on the liaison lawyer. It is not easy for the liaison lawyer to define his specialty because it is determined by the transactions, and they sprawl across the borders of two or more countries and cut across multiple fields of substantive law. Some awkward professional problems and postures can result. First, there are unusual threshold problems of language and multiple bar membership, different professional ethics and scopes of practice, and conflicting governing laws. Then once in the practice, the liaison lawyer\u27s inventory of useful doctrine, even when it is limited bilaterally to the U.S. and Japan, covers most of the law of both countries, plus relevant international and third country law. If he attempts to marshall such a body of law systematically, he risks superficiality or submersion in contingent detail. As a result he is reduced to the legal problems of specific transactions between specific countries for something manageable to discuss.This is especially true standpoint of the U.S. businessman, realizing of course that there is usually a corresponding transaction from the Japanese side. The fact that post-war capital-flow has been toward Japan means, however, when the discussion gets to the subject of the organization and roles of the several lawyers required to handle the more complex transactions

Introduction—U.S./Japanese Trade: Its Scope and Legal Framework

For the past several years, the United States has had more trade with Japan than with any other country in the world, except Canada. Furthermore, the state of Washington has had the highest per capita exports to Japan of any of the states, due largely to wheat, logs, and jet aircraft. Besides its obvious benefits, growing trade interdependence has caused its own frictions which have, in turn, required intervention by the American and Japanese governments. This has produced treaties as well as national legal regulation in both Japan and the United States to supplement the private law of sales. Something of the scope and trends of U.S./Japanese trade, as well as the Japanese regulatory devices and the international legal framework, is presented below

Contract Problems in U.S.-Japanese Joint Ventures

U.S.-Japanese joint ventures are by far the most important form of direct foreign investment in Japan. For unlike most advanced governments elsewhere in the world, Japanese officialdom has, with precious few exceptions, denied validation under the Law Concerning Foreign Investment to all enterprises wholly-owned or even majority-owned by foreigners. Furthermore, it was basic Japanese policy not to validate even a minority equity in a Japanese enterprise unless the foreigner possessed essential technology which he would not make available to Japanese industry by straight patent or know-how licensing arrangements. Since before July 1963 validation only meant the right to repatriate capital and earnings in foreign currency, many foreign firms had chosen to forego validation and operate a wholly-owned or majority-owned Japanese corporation for yen only, but even this opportunity for an unapproved and underprivileged majority holding was foreclosed on July 1, 1963, when the Japanese Government declared that the so-called yen operation could no longer be established without official validation