The Politics of Crime, Punishment, and Social Order in East Asia

Abstract

Recent scholarship on crime, law, and society in China and Japan has addressed the politics of globalization and legal reform in both countries, but political context is not self-revealing. The literature on China has focused too often on the role of the police in an authoritarian state without sufficiently taking into account the changing balance of power among judicial actors, which may be more important for understanding the shape and direction of Chinese legal reform. In contrast, the literature in Japan has recently begun to grapple with the new politicization of criminal justice but could do more to show how these concerns are intimately connected to deeper unease about the country's future. In suggesting new ways of analyzing the politics of criminal justice in China and Japan, this article also argues for increased attention to the social consequences of crime's increasing political saliency, including patterns of marginalization and constructions of deviancy.

Lost in Translation? Nonstate Actors and the Transnational Movement of Procedural Law

“…In their study of the Japanese and European law, Kelemen and Sibbitt likewise observe the spread of American law+ For them, the demand for U+S+-style law emerged primarily because of the growing utility of legal representation in an increasingly liberalized marketplace+ 114 By treating this liberalization as an exogenous factor, they overlook important mechanisms that vary in their capacity to explain the spread of different legal norms and practices+ For example, our discussion shows how the spread of American procedure came after years of failed stateled programs+ After 1945 American policymakers had limited success exporting law, despite the hegemonic position the United States enjoyed in different parts of the world+ Unilateralism did not establish a focal point+ By contrast, during the past two decades U+S+-style litigation spread even though it was often despised and belittled abroad+ Causal mechanisms such as efficiency, access to justice, and unobtrusive persuasion varied by issue and jurisdiction+ Operative mechanisms were of different types, involved scale shifts, and operated at different levels of abstrac-tion+ 115 Gambetta's analysis of the concatenations of different mechanisms is particularly relevant to our findings+ 116 Legal systems and their reforms are elastic traditions of practice and discourse, the result of political battles fought by lawyers, intellectuals, politicians, and bureaucrats+ 117 It follows that local and global legal norms and practices are not fated to converge on a single developmental trajectory modeled on the American system+ Rather, in complex processes of interaction, legal practices and discourses evolve that reflect and justify different strategies, including maintaining, adapting, or transforming domestic law+ Rationalist explanations push toward premature closure of analysis+ Our two cases, whereby the efficiency gains of class action and the high costs of pretrial discovery both penetrated civil legal systems, uncover a mix of mechanisms that place parsimonious explanations of efficiency in relation to other mechanisms such as access-to-justice norms and unobtrusive persuasion+ Concatenation gives us better leverage on the data than parsimony+ Our analysis invites one final reflection on the unresolved tension that exists in international legal and political scholarship about the difference between common and civil law systems+ Economically inclined theories of the movement of legal norms and practices point to efficiency as the force behind the dynamic expansion of American law+ Sociologically inclined theories point to differences in legal systems' receptivity to new norms and practices and the different meanings they acquire in the process of translation into a new legal ecology+ Numerous studies provide adherents of both perspectives with ample data to support their claims+ Imagine 114+ Kelemen and Sibbitt 2004, 109+ 115+ Tarrow 2005, 120-24+ 116+ See Gambetta 1998andTwining 2005, 205-6, 213-14+ 117+ Leheny andLiu 2010+ the transnational movement of law as an ocean wave, with different legal systems marked by differently colored corks floating on top+ Americanization moves the wave in one direction, while Europeanization, Islamicization, Sinicization, Indianization, or Japanization might have moved it in another+ The corks bob up and down, with some drifting closer together, others further apart+ Whether standing on solid ground on the shore or floating on a raft among the corks, after the wave passes observers will report, in good faith and based on accurate o...…”

Citizens’ Obligation to Obey the Law

“…A large number of statutes and regulations have been passed, and many legal institutions, including criminal justice agencies, have been reestablished (Leheny & Liu, 2010;Peerenboom, 2002;Rojek, 1996). Governmental efforts have been devoted to restraining the arbitrary exercise of state power.…”

“…Since China started its economic reform in 1978, the country has moved a long way from the rule of man tradition toward a law-based formal social control system International Journal of Offender Therapy and Comparative Criminology 57(4) (Jiang, Lambert, & Wang, 2007b;Rojek, 1996). A large number of statutes and regulations have been passed, and many legal institutions, including criminal justice agencies, have been reestablished (Leheny & Liu, 2010;Peerenboom, 2002;Rojek, 1996). Governmental efforts have been devoted to restraining the arbitrary exercise of state power.…”

Corrections in Asia

“…This economic growth has been accompanied by rapid social changes, including those in the criminal justice system in general and corrections in particular. Asia may become the next frontier for research on the death penalty (Johnson & Zimring, 2009), crime, law and society (Leheny & Liu, 2010), and crime control (Jiang & Lambert, 2012). Research on corrections in Asia not only reveals intriguing differences between Asia and the West but also tests Western theory generalizability to Asia.…”