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Reviewed by:
  • Gender and Law in the Japanese Imperium eds. by Susan L. Burns and Barbara J. Brooks
  • Marie Seong-Hak Kim
Gender and Law in the Japanese Imperium. Edited by Susan L. Burns and Barbara J. Brooks. University of Hawai‘i Press, 2014. 312 pages. Hardcover $45.00.

Susan Burns and the late Barbara Brooks have brought together a solid collection of nine papers on gender and law in the Japanese empire. A historical inquiry covering the 1870s to the 1950s, the volume focuses on the cultural and social contexts of laws and legal practices rather than institutional or juridical debates. The first six chapters deal with criminal law in Japan on matters ranging from prostitution to abortion, infanticide, adultery, divorce, and female criminality and penology. The remaining three chapters concern colonial civil law in Taiwan and Korea, taking up the topics of marriage, adoption, and other local customary practices. In the introductory essay, Burns stresses that the volume overall takes an “explicitly revisionist perspective.” Given the book’s breadth, it is not surprising that the nature and scope of this revisionism vary significantly among the individual chapters. Many, though not all, of the essays are informed by the dominant thesis in feminist scholarship that law [End Page 200] has historically been a representation of power and patriarchal privilege. The book highlights “the agency of the various actors who shaped the legal process” rather than focusing on law as “a technology of state control” (p. 7). Yet the reordering of gender relations intrinsically takes place through the state monopoly of law and its interpretation; in this sense, law as a body of rules imposed by the state actor is not less significant than law as a process informed by social forces.

The first two chapters discuss prostitution between 1872 and 1956. Scholars have often mused over the Japanese government’s earnest acceptance, in the famous Maria Luz incident, of the contention that indentured prostitution in Japan was not very different from the coolie trade. Douglas Howland explains in his chapter that a large part of Japan’s humanitarian gesture in that incident was grounded on its desire to obtain the abrogation of the unequal treaties that had been imposed on it by the United States and others during the 1850s. Justice for coolies and prostitutes was secondary to the national goal of achieving autonomy and state building through a commitment to international law, argues Howland. The characterization of prostitution as a labor contract in the 1872 law meant that the trade was now subject to state approval and sanctions. The chapter by Sally A. Hastings examines the passing of the 1956 Prostitution Prevention Act. According to Hastings, the law was a result of political compromise, a symbolic victory at best for the female reformers who fought the treatment of women as property. The government criminalized solicitation, procurement, and contracts for prostitution but did not make the act of prostitution illegal.

The next four chapters deal with various aspects of specific criminal laws, their interpretations, and the judicial and penal systems that implemented them. Burns’s chapter discusses the reproductive crimes of abortion and infanticide. From her survey of court cases decided between 1877 and 1882 by the Daishin’in, Japan’s highest court, Burns convincingly refutes the conventional view that the prewar judicial system monolithically suppressed women’s reproductive and sexual choices. She argues that the statutes then in force imposed stiff penalties for these crimes but that judges frequently relied on mitigating factors to reduce punishments. Here some comparison between Japan and Europe is illuminating. While a typical defendant in infanticide cases in early modern Europe was an unmarried woman, often a domestic servant, hiding her pregnancy and subsequently committing the killing alone, Japanese cases tended to involve the members of an entire household, not just the mother of the baby but also the husband if there was one, the parents, and the grandparents. Scholars have linked the pervasiveness of infanticide in premodern Japan to the teaching of Confucian filial duty, on the basis of which couples were enjoined, for the sake of their elders, to seek economic security by limiting the number of children they had as...

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