DOCSLIB.ORG

UNIVERSITY of HAWNI Llbrarv

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
UNIVERSITY of HAWNI Llbrarv ._----- UNIVERSITY OF HAWNI LlBRARV GLOBALIZATION WITHOUT CONVERGENCE: AN ANALYSIS OF THE HARMONIZATION OF INTELLECTUAL PROPERTY LAWS ACROSS THREE DIFFERENT LEGAL REGIMES A DISSERTATION SUBMITTED TO THE GRADUATE DIVISION OF THE UNIVERSITY OF HAWAI'I IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY IN INTERNATIONAL MANAGEMENT May 2008 By Benjamin A. Kudo Dissertation Committee: Olgierd N. Ordway, Chairperson Dharm Bhawuk Richard W. Brislin Kiyobiko Ito Patricia G. Steinhoff We certify that we have read this dissertation and that, in our opinion, it is satisfactory in scope and quality as a dissertation for the degree of Doctor of Philosophy in International Management. Dissertation Committee ~ .. :/~a~ Chairperson ~ ~M4JY1l ~Lu.~ 4d2G J6r: ii ACKNOWLEDGMENT There are numerous individuals that I wish to express my deepest appreciation to for their assistance and support in this research. First of all, to those individuals who assisted in facilitating and obtaining appointments with the various jurists in each respective country. These individuals are listed below by country. United States: Honorable Gerald H. Kibe Honorable Richard Talman Honorable Mario R. Ramil (retired) R. Brian Tsujimura, Esq. Japan: Gary M. Kobayashi, Esq. Donald H. Amano, Esq. Kenneth T. Okamoto, Esq. Republic of the Philippines: Perfecto R. Yasay, Jr., Esq. Glenn Nakamura Teodoro D. Regala, Esq. Cynthia V. Antonio I am also indebted to my Committee members for their support and critical recommendations and suggestions to keep me focused on my topic and produce a scholarly product. To all of them I am eternally grateful. Finally, I wish to acknowledge the support of my friends and family. In particular, Professor Glenn Miyataki, who mentored me for several years and kept me on schedule to cross the finish line. To my twin brother, Professor Franklin T. Kudo, who encouraged me to maintain the highest level of scholarship and to strive to learn and achieve. To my faithful secretary, Stephanie Tanaka, who selfishly assisted me in the iii typing of the numerous drafts of my research paper, and to my children, Katherine and Robert, to whom I dedicate my efforts. iv ABSTRACf Globalization has created pressures on nations to conform their societies, culture, political ideologies, and laws in order to engender parity and facilitate economic trade, foreign direct investment and technology transfers. Multilateral trade and global economic alliances like the World Trade OrganivUion (''WTO'') have demanded that member nations conform their business practices and laws to achieve a "level playing field." In order to accomplish this, the WTO has adopted and relied considerably on convergence theory. This theory maintains, in part, that the harmonization oflaws such as those dealing with intellectual property ("IP") will make the global marketplace more efficient and fair and benefit participating nation economies. However, merely harmonizing IP laws may be insufficient to create a "level playing field" for trade and commerce. In order for convergence theory to work, not only must IP laws be harmonized, but more importantly, the respective legal regimes of the signatory countries must also be conformed. This research analyzes the harmonization ofIP laws across three different legal regimes. In particular, I focus on the regimes of America, Japan and the Philippines, which have harmonized their IP laws in accordance with the WTO requirements. Using legal case studies I conducted personal interviews of selected judges and justices from each legal regime to identify their mental processes used in judicial decision making. The research yielded results which indicated that given similar laws and facts, jurists from each legal regime use unique mental processes not used by jurists of other regimes. This finding was corroborated by the significant variations in judicial outcome between v regimes, and the lack of uniformity of outcome across all regimes. From this finding, I conclude that legal regimes appear to serve as a moderator ofjudicial outcome. Based on my conclusion, the mere harmonizing ofIP laws without concomitant changes to the legal regimes of member nations may not yield similar judicial outcomes. Consequently, the underlying use and reliance on convergence theory by WTO may not work and should be reevaluated in light of this research. vi TABLE OF CONTENTS ACKNOWLEDGMENT ............................................................................................... ill ABSTRACT .................................................................................................................... v LIST OF TABLES .......................................................................................................... x LIST OF FIGURES ........................................................................................................ XI PREFACE ..................................................................................................................... XII CIlAP'I'ER 1 IN'TRODUCfION .................................................................................... 1 1.1 Statement of Purpose ...................................................................................... 1 1.2 Research Questions and Limitations of Research ........................................... 4 1.3 Definitions ...................................................................................................... 5 1.4 Limitations of Research .................................................................................. 8 1.5 Dissertation Outline ...................................................................................... 10 CllAP'I'ER 2 GLOBALIZATION: CONVERGENCE AND DIVERGENCE •••••••• 12 2.1 The Globalization Process ............................................................................ 12 2.2 Divergence: Global Inequality and Resistance ............................................. 15 2.3 Leveling the Global "playing Field": Intellectual Property Laws ............... 17 2.4 Global Convergence: Harmonizing Intellectual Property Laws ................... 23 i. Typology of Harmonization. .................................................................. 28 2.5 Harmonization: Transplanting Law to Other Legal Regimes ...................... 29 2.6 Legal Harmonization: A Cultmal Perspective ............................................. 33 2.7 Interpretation of Law: A Socio-Cultmal Perspective .................................. 41 i. Common Law Interpretation Process .................................................... 41 ii. Civil Law Interpretation Process ........................................................... 43 2.8 The Multiple Meanings of Law .................................................................... 44 i. Natmal Law ........................................................................................... 45 ii. Legal Positivism .................................................................................... 47 iii. Socio-Legal Theory of Law ................................................................... 48 2.9 Philosophy of Law: "Rule of Law" and "Rule by Men" ............................. 49 i. The Role of Jmists in Defining Jmisprudence....................................... 52 CIlAP'I'ER 3 LEGAL REGIMES AND THE GLOBALIZATION OF INTELLEcruAL PROPERTY LAW •..............................................•.••...................... 5S 3.1 Three Separate Legal Regimes ..................................................................... 55 3.2 Common Law Regime of the United States ................................................. 56 i. An Intellectual Property Regime: U.S. Law .......................................... 61 ii. The Judiciary of the United States ......................................................... 67 3.3 Civil Law Regime of Japan .......................................................................... 69 i. An Intellectual Property Regime: Japan Law ........................................ 75 ii. The Judiciary of Japan ........................................................................... 81 vii 3.4 Hybrid (Civil Law/Common LawlMuslim Law) Regime of the Philippines .......................................................................................... 84 i. An Intellectual Property Regime: Philippine Law ................................. 91 ii. The Judiciary of the Republic of the Philippines ................................... 94 3.5 Comparison of Legal Regimes ..................................................................... 95 3.6 Adjudication: The Role of Jurists ................................................................. 98 3.7 Judicial Authority and Independence ......................................................... 102 i. Litigation and Judicial Outcome .......................................................... 104 CHAP'fER 4 RESEARCH METHODOLOGY ...............•........................................ 109 4.1 Characteristics of Hermeneutic Qualitative Research ................................ 109 4.2 Research Design ......................................................................................... 112 i. Selection of Legal Regimes and Jurists ............................................... 112 ii. Case Studies: Development of Interview Materials ........................... 115 iii. Pre-testing of Interview Materials ....................................................... 119 iv. Translation and Transcription of Interviews .......................................
Load more

Recommended publications
  • American Legal Culture and Traditional Scholarly Order Christian Atias
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Louisiana State University: DigitalCommons @ LSU Law Center Louisiana Law Review Volume 46 | Number 6 July 1986 American Legal Culture and Traditional Scholarly Order Christian Atias Alain A. Levasseur Louisiana State University Law Center Repository Citation Christian Atias and Alain A. Levasseur, American Legal Culture and Traditional Scholarly Order, 46 La. L. Rev. (1986) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol46/iss6/1 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. ARTICLE AMERICAN LEGAL CULTURE AND TRADITIONAL SCHOLARLY ORDER Christian A tias* edited by Alain A. Levasseur** I. INTRODUCTION Two Major Assets of American Legal Thinking The expression "American legal culture" is common today. His- torians and legal philosophers refer to it often; theoreticians in private law or in constitutional law also know it. In studies of this so-called "American legal culture," numerous authors have shown its specificity, related great periods in its formation, and described its main trends. Nevertheless, the notion itself-the implicit presuppositions or para- digms-seems not to have been especially examined. It is as if this concept forcibly entered the minds of the American jurists, as if it were obvious and without any question as to its nature or its significance. This thesis is all the more plausible since American law-Louisiana law in particular-is distinguished by the complexity of its sources., An American precedent, an English precedent, the French Civil Code, Span- ish and Roman law, and the more renowned commentators can all be referred to in interpreting Louisiana acts.
    [Show full text]
  • Embracing Diversity Through a Multicultural Approach to Legal Education, 1 Charlotte L
    UIC School of Law UIC Law Open Access Repository UIC Law Open Access Faculty Scholarship 1-1-2009 Embracing Diversity through a Multicultural Approach to Legal Education, 1 Charlotte L. Rev. 223 (2009) Julie M. Spanbauer John Marshall Law School, [email protected] Katerina P. Lewinbuk Follow this and additional works at: https://repository.law.uic.edu/facpubs Part of the Law and Race Commons, Legal Education Commons, Legal Profession Commons, and the Legal Writing and Research Commons Recommended Citation Julie M. Spanbauer & Katerina P. Lewinbuk, Embracing Diversity through a Multicultural Approach to Legal Education, 1 Charlotte L. Rev. 223 (2009). https://repository.law.uic.edu/facpubs/56 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Open Access Faculty Scholarship by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. EMBRACING DIVERSITY THROUGH A MULTICULTURAL APPROACH TO LEGAL EDUCATION Julie M. Spanbauer* and Katerina P. Lewinbuk** If we are to achieve a richer culture, rich in contrasting values, we must recognize the whole gamut of human potentialities, and so we weave a less arbitrarysocial fabric, one in which each diverse human gift will find a fitting place.*** INTRODUCTION As a result of globalization,1 the English language is fast becom- ing "a global lingua franca,"' 2 and is in increased demand by foreign lawyers for U.S. LL.M or J.D. degrees.3 On a superficial level, U.S. * Professor of Law, The John Marshall Law School, Chicago.
    [Show full text]
  • Download the Publication
    A TIME FOR CHANGE? JAPAN’S “PEACE” CONSTITUTION AT 65 Edited by Bryce Wakefield Available from : Asia Program Woodrow Wilson International Center for Scholars One Woodrow Wilson Plaza 1300 Pennsylvania Avenue NW Washington, DC 20004-3027 www.wilsoncenter.org Photo: A supporter of Article 9 protests outside the National Diet of Japan. The sign reads: “Don’t change Article 9!” © 2006 Bryce Wakefield ISBN: 978-1-938027-98-7 ©2012 Woodrow Wilson International Center for Scholars, Washington, D.C. www.wilsoncenter.org The Woodrow Wilson International Center for Scholars is the national, living memorial honoring President Woodrow Wilson. In provid- ing an essential link between the worlds of ideas and public policy, the Center addresses current and emerging challenges confronting the United States and the world. The Center promotes policy-relevant research and dialogue to in- crease understanding and enhance the capabilities and knowledge of leaders, citizens, and institutions worldwide. Created by an Act of Congress in 1968, the Center is a nonpartisan institution headquartered in Washington, D.C., and sup- ported by both public and private funds. Jane Harman, President, CEO and Director Board of Trustees: Joseph B. Gildenhorn, Chair; Sander R. Gerber, Vice Chair Public Members: Hon. James H. Billington, Librarian of Congress; Hillary R. Clinton, Secretary, U.S. Department of State; G. Wayne Clough, Secretary, Smithsonian Institution; Arne Duncan, Secretary, U.S. Department of Education; David Ferriero, Archivist of the United States; James Leach, Chairman, National Endowment for the Humanities; Kathleen Sebelius, Secretary, U.S. Department of Health and Human Services Private Citizen Members:Timothy Broas, John Casteen, Charles Cobb, Jr., Thelma Duggin, Carlos M.
    [Show full text]
  • The Constitution of Japan (1947)
    Primary Source Document with Questions (DBQs) THE CONSTITUTION OF JAPAN (1947) Introduction The American Occupation of Japan was premised on the notion that the thorough demilitarization and democratization of the defeated nation would make the world forever safe from the renewed threat of Japanese aggression. The drafting of a new, democratic constitution was considered essential to Japan’s recasting as a peaceful member of the community of nations. After a Japanese commission failed to produce a new national constitution sufficiently progressive for the Occupation’s liking, a document was drafted (over the span of only a week’s time) in-house by American staff and presented to the Japanese government for translation and enactment. The Japanese had no choice but to follow orders and the new constitution, somewhat awkwardly worded as the result of its English-language origins, was promulgated in November 1946 and came into effect on May 3, 1947. Many scholars have noted the irony of the Occupation installing democratic political institutions in Japan through transparently authoritarian means: the Japanese, it has been said, were “forced to be free” by their American occupiers. Nonetheless, the 1947 Constitution was readily embraced by the Japanese people and has endured (with not a single amendment over the past six decades) as a sound basis for Japan’s postwar democracy. The most celebrated section of the 1947 Constitution is Article 9, often called the “no war” clause. Debate swirled immediately around Article 9, which was very popular among the Japanese people but which proved troubling to the United States. Although American Occupation officials drafted the “no war” clause, American military planners soon sought a remilitarized Japan as an ally in the Cold War and found Article 9 a serious impediment.
    [Show full text]
  • The Rise of Nationalism in Millennial Japan
    W&M ScholarWorks Undergraduate Honors Theses Theses, Dissertations, & Master Projects 5-2010 Politics Shifts Right: The Rise of Nationalism in Millennial Japan Jordan Dickson College of William and Mary Follow this and additional works at: https://scholarworks.wm.edu/honorstheses Part of the Asian Studies Commons Recommended Citation Dickson, Jordan, "Politics Shifts Right: The Rise of Nationalism in Millennial Japan" (2010). Undergraduate Honors Theses. Paper 752. https://scholarworks.wm.edu/honorstheses/752 This Honors Thesis is brought to you for free and open access by the Theses, Dissertations, & Master Projects at W&M ScholarWorks. It has been accepted for inclusion in Undergraduate Honors Theses by an authorized administrator of W&M ScholarWorks. For more information, please contact [email protected]. Politics Shifts Right: The Rise of Nationalism in Millennial Japan A thesis submitted in partial fulfillment of the requirement for the degree of Bachelors of Arts in Global Studies from The College of William and Mary by Jordan Dickson Accepted for High Honors Professor Rachel DiNitto, Director Professor Hiroshi Kitamura Professor Eric Han 1 Introduction In the 1990s, Japan experienced a series of devastating internal political, economic and social problems that changed the landscape irrevocably. A sense of national panic and crisis was ignited in 1995 when Japan experienced the Great Hanshin earthquake and the Aum Shinrikyō attack, the notorious sarin gas attack in the Tokyo subway. These disasters came on the heels of economic collapse, and the nation seemed to be falling into a downward spiral. The Japanese lamented the decline of traditional values, social hegemony, political awareness and engagement.
    [Show full text]
  • Constitutional Reform in Japan
    Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2019 Constitutional Reform in Japan Nobuhisa Ishizuka Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons, and the Law and Politics Commons Recommended Citation Nobuhisa Ishizuka, Constitutional Reform in Japan, 33 COLUM. J. ASIAN L. 5 (2019). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2714 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. 2019] CONSTITUTIONAL REFORM IN JAPAN 5 CONSTITUTIONAL REFORM IN JAPAN Nobuhisa Ishizukm INTRODUCTION Over seventy years ago it would have seemed inconceivable in the aftermath of a calamitous war that a complete reorientation of Japan into a pacifist society, modeled on Western principles of individual rights and democracy, would succeed in upending a deeply entrenched political order with roots dating back centuries.2 The post-war Japanese constitution lies at the heart of this transformation. Drafted, negotiated and promulgated a mere fourteen months after Japan's formal surrender, 3 it has remained a model of stability amidst transformational changes in the domestic and international political landscape. 4 In the seventy-plus years since its adoption, it has not been amended once.s 1 Executive Director, Center for Japanese Legal Studies, and Lecturer in Law, Columbia Law School. The author would like to acknowledge the research assistance of Nicole Frey, Columbia Law School LL.M.
    [Show full text]
  • Handbook on the Research Report on the Constitution of Japan
    Handbook on the Research Report on the Constitution of Japan Research Commission on the Constitution House of Councillors JAPAN 2005 Office of the Research Commission on the Constitution House of Councillors House of Councillors East Annex 1-11-16 Nagata-cho, Chiyoda-ku Tokyo 100-0014, Japan Tel 81-3-5521-7684 Fax 81-3-5512-3925 Printed in Japan Foreword The Research Commission on the Constitution of the House of Councillors conducted a broad and comprehensive study on the Constitution of Japan since the Commission’s establishment on January 20th, 2000. The Commission compiled five years and three months’ worth of research results in the Research Report on the Constitution of Japan and submitted it to the President of the House of Councillors on April 20th, 2005. This handbook has been made to help you learn the essence of the Report. Research Commission on the Constitution House of Councillors National Diet of Japan CONTENTS Ⅰ Regarding the Research Commission on the Constitution 1 Ⅱ The Five Years After the Establishment of the Research Commission on the Constitution (from January 2000 to April 2005) 3 Ⅲ Major Issues Discussed in the Research Commission on the Constitution 7 1. Issues upon Which Common Understandings, Completely or Generally, Have Been Reached 8 [General Theory] (1) Three Major Principles (Popular Sovereignty, Respect for Fundamental Human Rights, and Pacifism) 8 “The importance of these three principles will never be changed.” (2) Roles That the Current Constitution Has Played 8 “The current Constitution has played significant roles in our lives.” [Popular Sovereignty] (3) Firm Maintenance and Further Development of Popular Sovereignty 9 “It is the people who have the final say over the issues concerning the state.
    [Show full text]
  • Building Cross-Cultural Competence in Lawyers
    City University of New York (CUNY) CUNY Academic Works Publications and Research CUNY School of Law 2001 The Five Habits: Building Cross-Cultural Competence in Lawyers Susan Bryant CUNY School of Law How does access to this work benefit ou?y Let us know! More information about this work at: https://academicworks.cuny.edu/cl_pubs/258 Discover additional works at: https://academicworks.cuny.edu This work is made publicly available by the City University of New York (CUNY). Contact: [email protected] THE FIVE HABITS: BUILDING CROSS- CULTURAL COMPETENCE IN LAWYERS SUSAN BRYANT* "Yet the challenge confronts us: Build a unified society without uniformity."' This article describes a process called "the Habits" that was de- veloped by Professors Bryant and Jean Koh Peters that can be used by lawyers to increase their cross-cultural competence. By outlining * Associate Professor, City University of New York School of Law (CUNY). As de- scribed in the epilogue, this article grows out of a collaborative project with Jean Koh Peters, to whom I am deeply grateful. In our work on developing the Habits and the teaching module to teach the Habits, Jean and I were aided by many wonderful colleagues, students, and staff. I want to thank those colleagues who first worked with me on issues of diversity in AALS presentations, including Victor Goode, Isabelle Gunning, Steve Hardwell, and Jennifer Rockow. Jean and I have wonderful colleagues who have taught cross-cultural lawyering using these materials or watched us use them and given us feed- back on the Habits and these materials. They include my colleagues at CUNY: Beryl Blaustone, Rhonda Copelon, Sam Dulberg, Ellen Fried, Gail Gray, Pamela Goldberg, Sharon Hom, Ron Lindeman, Steve Loffredo, Joe Rosenberg, and Susan Taylor; and Jean's colleagues at Yale: Carroll Lucht, Michael Pinard, Jay Pottenger, and Steve Wizner.
    [Show full text]
  • Latin@ Identity Politics in Higher Education: Unveiling Representations of Whiteness in Latin@ Culture Michael Benitez Jr
    Iowa State University Capstones, Theses and Graduate Theses and Dissertations Dissertations 2015 Latin@ identity politics in higher education: unveiling representations of whiteness in Latin@ culture Michael Benitez Jr. Iowa State University Follow this and additional works at: https://lib.dr.iastate.edu/etd Part of the Chicana/o Studies Commons, Higher Education Administration Commons, Higher Education and Teaching Commons, and the Latina/o Studies Commons Recommended Citation Benitez, Michael Jr., "Latin@ identity politics in higher education: unveiling representations of whiteness in Latin@ culture" (2015). Graduate Theses and Dissertations. 14775. https://lib.dr.iastate.edu/etd/14775 This Dissertation is brought to you for free and open access by the Iowa State University Capstones, Theses and Dissertations at Iowa State University Digital Repository. It has been accepted for inclusion in Graduate Theses and Dissertations by an authorized administrator of Iowa State University Digital Repository. For more information, please contact [email protected]. Latin@ identity politics in higher education: Unveiling representations of whiteness in Latin@ culture by Michael Benitez Jr. A dissertation submitted to the graduate faculty in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Major: Education (Educational Leadership) Program of Study Committee: Natasha Croom, Chair Brian D. Behnken Connie P. Hargrave Laura I. Rendón Manali J. Sheth Iowa State University Ames, Iowa 2015 Copyright © Michael Benitez Jr., 2015. All rights reserved. ii DEDICATION I dedicate this dissertation to my family for their ongoing support and love throughout the seven years it has taken me to complete this project. They have truly been there for me every step of the way.
    [Show full text]
  • Latina Multidimensionality and Latcrit Possibilities: Culture, Gender, and Sex©
    University of Miami Law Review Volume 53 Number 4 Article 11 7-1-1999 Latina Multidimensionality and LatCrit Possibilities: Culture, Gender, and Sex© Berta Esperanza Hernández-Truyol Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Berta Esperanza Hernández-Truyol, Latina Multidimensionality and LatCrit Possibilities: Culture, Gender, and Sex©, 53 U. Miami L. Rev. 811 (1999) Available at: https://repository.law.miami.edu/umlr/vol53/iss4/11 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. Latina Multidimensionality and LatCrit Possibilities: Culture, Gender, and Sex© BERTA ESPERANZA HERNANDEZ-TRUYOL* This essay explores the multiple margins that Latinas' inhabit both within majority society and their comunidad Latina because of their * Professor of Law, St. John's University School of Law. This essay is an adaptation of a talk presented at the LatCrit III Conference in Miami Florida during the "Between/Beyond Colors: Outsiders Within Latina/o Communities." Muchtsimas gracias to the organizers of the conference, Frank Valdes and Lisa Iglesias for their indefatigable organizing. I am deeply grateful for the invitation to share some time and thoughts with an amazing group of conference participants and to practice the LatCrit challenge of building community and forging coalitions. I am eternamente agradecida especialmente a Elvia Rosales Arriola, Frank Valdes, David Cruz, and Keith Aoki for their valuable comments on an earlier draft.
    [Show full text]
  • The Birth of the Parliamentary Democracy in Japan: an Historical Approach
    The Birth of the Parliamentary Democracy in Japan: An Historical Approach Csaba Gergely Tamás * I. Introduction II. State and Sovereignty in the Meiji Era 1. The Birth of Modern Japan: The First Written Constitution of 1889 2. Sovereignty in the Meiji Era 3. Separation of Powers under the Meiji Constitution III. The Role of Teikoku Gikai under the Meiji Constitution (明治憲法 Meiji Kenp ō), 1. Composition of the Teikoku Gikai ( 帝國議会) 2. Competences of the Teikoku Gikai IV. The Temporary Democracy in the 1920s 1. The Nearly 14 Years of the Cabinet System 2. Universal Manhood Suffrage: General Election Law of 1925 V. Constitutionalism in the Occupation Period and Afterwards 1. The Constitutional Process: SCAP Draft and Its Parliamentary Approval 2. Shōch ō ( 象徴) Emperor: A Mere Symbol? 3. Popular Sovereignty and the Separation of State Powers VI. Kokkai ( 国会) as the Highest Organ of State Power VII. Conclusions: Modern vs. Democratic Japan References I. INTRODUCTION Japanese constitutional legal history does not constitute a part of the obligatory legal curriculum in Hungary. There are limited numbers of researchers and references avail- able throughout the country. However, I am convinced that neither legal history nor comparative constitutional law could be properly interpreted without Japan and its unique legal system and culture. Regarding Hungarian-Japanese legal linkages, at this stage I have not found any evidence of a particular interconnection between the Japanese and Hungarian legal system, apart from the civil law tradition and the universal constitutional principles; I have not yet encountered the Hungarian “Lorenz von Stein” or “Hermann Roesler”. * This study was generously sponsored by the Japan Foundation Short-Term Fellowship Program, July-August, 2011.
    [Show full text]
  • Entanglements in Legal History: Conceptual Approaches
    GLOBAL PERSPECTIVES ON LEGAL HISTORY 1 THOMAS DUVE (ED.) Entanglements in Legal History: Conceptual Approaches Thomas Duve European Legal History – Concepts, Methods, Challenges | 29 – 66 MAX PLANCK INSTITUTE FOR EUROPEAN LEGAL HISTORY ISBN 978-3-944773-00-1 eISBN 978-3-944773-10-0 ISSN 2196-9752 First published in 2014 Published by Max Planck Institute for European Legal History, Frankfurt am Main Printed in Germany by epubli, Prinzessinnenstraße 20, 10969 Berlin http://www.epubli.de Max Planck Institute for European Legal History Open Access Publication http://global.rg.mpg.de Published under Creative Commons CC BY-NC-ND 3.0 DE http://creativecommons.org/licenses/by-nc-nd/3.0/de The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliographie; detailed bibliographic data are available on the Internet at http://dnb.d-nb.de Copyright © Cover photo by Christiane Birr, Frankfurt am Main Cover design by Elmar Lixenfeld, Frankfurt am Main Recommended citation: Duve, Thomas (ed.) (2014), Entanglements in Legal History: Conceptual Approaches, Global Perspectives on Legal History, Max Planck Institute for European Legal History Open Access Publication, Frankfurt am Main, http://dx.doi.org/10.12946/gplh1 Thomas Duve European Legal History – Concepts, Methods, Challenges* For decades, we have learned from authors like Helmut Coing, Franz Wieacker, Harold Berman, Peter Stein, Manlio Bellomo, Paolo Prodi, – to name but a few – that one of Europe’s major cultural achievements is its law, its unique legal culture. In Italian, Paolo Grossi’s synthesis of European legal history is not incidentally called: L’Europa del diritto.Thesameconceptof a ‘legal tradition’, the belief in the ongoing character of law, its capacity for growth over generations and centuries are seen as something uniquely Western.
    [Show full text]