Law’s Political Foundations in East Asia: The View from Recent Scholarship on China and Japan

Abstract

In a 2016 monograph, legal scholar of East Asia John Owen Haley explores the “political foundations” of public and private law. This is an important intervention because of the questions Haley raises about the bedrock of the legal order. Haley’s scope is global and diachronic, but in this essay I will limit my scope to Japan and China, largely in the twentieth and twenty-first centuries. With Haley’s insights in the background, my goal is to understand better how politics has shaped law and legal practice in these East Asian countries over the past dozen or so decades, and thereby to discover new ways of seeing the present geopolitical and transnational-legal dispensation in the region. I survey, including Haley’s monograph, fourteen recent volumes, as well as a handful of relevant scholarly essays, to help situate the discussion of law’s political foundations in East Asia within the broader and evolving scholarship. I focus on Japan and China as a way to highlight differences even between two major countries in the East Asian sphere. My argument is that the foundations of law are not always political, and that, conversely, sometimes law and politics are not separable in the first place. The modern history of East Asia—Japan and China, but also from throughout the region—provides many examples of this more complex reading of law and politics.