Politics and the Judicial Function in the US and Japan: Their Relevance to Chinese Legal Evolution

Politics and the Judicial Function in the US and Japan and their Relevance to Chinese Legal Evolution

Thursday, January 25, 3:00PM,
Location TBA,
Politics and the Judicial Function in the US and Japan and their Relevance to Chinese Legal Evolution
Frank Upham, NYU Law School


The talk presents three models of the judicial role in modern societies: the protection of rights through the resolution of individual disputes; the creation and diffusion of social norms; and direct involvement in political and governmental functions. I argue that the rights protection model in its formalist and technical version is what most observers and rule of law advocates believe is law's fundamental social function and that it is this model that the current Chinese government is attempting to create with its current "rule of law" movement. I speculate that the Chinese government hopes to build a legal system that will be technically competent in controlling and diffusing social conflict while remaining politically neutral. I then turn to Japan and the US respectively to illustrate the norm creation and administrative roles of courts, both of which are deeply political.
In the course of these descriptions, I argue that contrary to popular perception, Japanese courts are in important ways more activist and socially intrusive than American ones, but my fundamental point is that any effective legal system must play all three of these roles and that any attempt to create a technically proficient but politically neutral legal system is likely to fail, whether in China or elsewhere.