A ‘crime’ is simply a legal designation of conduct considered to deserve special condemnation. We correctly attribute most if not all of these principles in Western law along with the positivist emphasis of the legality principle to the Enlightenment and 18th and early 19th century West European jurists. In this sense, these are ‘modern’ principles that have become universal with the globalization of Western law through colonization and replication. Yet they are neither new nor peculiarly Western. Many of the most important had been fundamental principles of the Imperial Chinese legal tradition, articulated by the Legalists in the 3rd and 2nd centuries BCE and adopted in successive dynastic codes during the ensuing two millennia.
This paper asks: To what extent are Imperial Chinese legal history and Contemporary Japanese criminal law relevant to better understand contemporary Western systems of criminal justice? Haley's purpose is not to belittle the Enlightenment or to elevate unduly the Chinese Legalists. His aim is rather to suggest that Western contemporary approaches and assumptions concerning criminal justices are less advanced or progressive we tend to believe. China and Japan may offer important lessons.
John Owen Haley is an internationally renowned scholar of comparative law with a special emphasis on Japan. His works have ranged from historical studies of law in Japan, Hispanic America and medieval Europe to contemporary issues of constitutional adjudication and contract law. His award-winning 1991 book, Authority without Power: Law and the Japanese Paradox, and his article, ‘The Myth of the Reluctant Litigant,’ are considered leading works in the field. Before joining Vanderbilt’s law faculty, Professor Haley taught at the University of Washington in Seattle, where he served as director of the Asian Law Program and, briefly, of the Henry M. Jackson School of International Studies. He was also the founding Garvey, Shubert & Barer Professor of Law. From 2000-10, he taught in the School of Law at Washington University in St. Louis. He retired in 2010 as the William R. Orthwein Distinguished Professor of Law, Emeritus. He has also taught in Japan, Germany, Lithuania, Australia and, most recently, China. He is the author or editor of nine books and monographs, including casebooks on courses in comparative law and transnational litigation.
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