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As in the world at large, so in the Netherlands Indies, labor law as such is a relatively modern development. Within the last score of years the legislative arm of the Indies government has attempted to satisfy the labor demands of an ever-expanding agricultural, commercial and industrial economy, protecting at the same time the conflicting interests of the diverse elements of the population. The result has been a growth from simple contract law to a complexity of provisions respecting labor relations that were only beginning to be fashioned into a unified whole at the time of the Japanese invasion. The future labor law will undoubtedly be built upon this foundation. Hence an exposition of the recent past should prove the best approach to postwar needs in the field of labor.
There is a considerable body of literature on the relationship between common law and various systems of personal laws especially in the Asian context. My only excuse for adding yet another account is this: A technical legal description of this relationship, focusing on such topics as marriage, divorce, inheritance, and so on, adds a real and important dimension to the study of culture contact. Except in Hong Kong, common law is no longer the dominant political system; it has become, with local variations, “government law” in the territories under consideration. Since law is the instrument most often used in the implementation of new government policies affecting family matters, for example, it seems important that some attempt be made to describe the techniques of interaction and to set out the present law as accurately as possible. Hopefully this essay will serve as skeleton reference material on the relation between these two systems of law. To accomplish this aim I will: (a) describe the ways in which the common law has been adapted so as to take account of Chinese law, (b) state the “principles of Chinese law” which the courts have formulated in the course of this adaptation, and (c) note the points at which the respective courts in the three territories have differed in their interpretation regarding the content of Chinese law.
Although Manchukuo is easily dismissed as a puppet of Japan, at the time of its founding, it was one of many examples of a partially sovereign state. Specific compromises of Manchukuo's sovereignty shaped the formation of its domestic institutions, such as the legal sphere, in tangible ways. Manchukuo handed over to Japan the power to staff and ideologically mold its judiciary, while the tutelary attitude that Japan took toward the state was concretely manifested in aspects of Manchukuo penal and civil law, and a surprisingly contentious path to the abrogation of Japanese extraterritoriality. With the outbreak of war, Manchukuo effectively surrendered its national sovereignty to the needs of the Japanese empire, sacrificing its jurisdictional integrity as well. While not denying the deliberate attempt made by Japan to misrepresent the independence of Manchukuo, this article also seeks to understand more precisely how Manchukuo's architects assumed certain limits to state sovereignty, and how this understanding systematically crippled the new state's legal institutions.
Postcolonial states responded differently to the group-specific personal laws that were recognized in many colonial societies. While some retained most colonial personal laws (e.g., Lebanon) and others introduced major changes (e.g., Tunisia), most introduced modest yet significant changes (e.g., Egypt, India, Indonesia). Indian policy makers retained personal laws specific to religious groups, and did not change the minority laws, although minority recognition did not rule out culturally grounded reform. They changed Hindu law alone based on their values, as they saw Hindu social reform as the key to making nation and citizen. Reform proposals drew from the modern Western valuation of the nuclear family, and from Hindu traditions that were reformed to meet standards of modernity. As Hindu nationalists and other conservatives defended lineage authority, legislators retained much of the lineage control over ancestral property. But they provided limited divorce rights, reduced restrictions on mate choice, and banned bigamy. The visions driving the initial proposals influenced many later changes in India's family laws.
A unique feature of traditional Chinese law was the provision by statute that an offender who voluntarily surrendered and confessed before discovery and who made full restitution was entitled to remsision of punishment. Offenders who physically harmed their victims or offended against die state itself by commiting treason or escaping across borders were not entitled to remission, but could receive a reduction of punishment. Under the Republic this provision, known as tzu-shou, was continued in name but materially changed in substance under the influence of Western law as introduced through Japan. In general, the rewards for voluntary surrender and confession were reduced to mere reduction of punishment, but the scope was broadened to include crimes such as homicide, for which restitution was impossible. When the Chinese Communists first began developing a legal system in the 1930's, they too adopted tzu-shou. However, under them it became primarily an instrument of political control and social and ideological reform. It has remained an important aspect of Communist law even to the present though its application has ceased to have any strict legal significance.
A number of Korean legal historians have argued that Chosŏn Korea had a tradition of customary law and that it was suppressed and distorted by the Japanese during the colonial period. But a comparison of Korean “custom” with that in late medieval France, where the legal concept of customary law developed, reveals that custom as a judicial norm was absent in premodern Korea. The Korean “customary law” that has been postulated as a true source of private law in Korean historiography was the invention of the Japanese colonial jurists. The Japanese collected Korea's popular usages that were supposed to serve as an antecedent for a modern civil law, and colonial judges employed the legal instrument of custom in reordering Korean practices into a modern civil legal framework. In colonial Korea, custom played the role of an intermediary regime between tradition and the demands of modern civil law.