Community and the Law
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Community and the Law

A Critical Reassessment of American Liberalism and Japanese Modernity

Takao Tanase

Edited by Luke Nottage and Leon Wolff

This important book translates seven landmark essays by one of Japan’s most respected and influential legal thinkers. While Takao Tanase concedes that law might not matter as much in Japan as it does in the United States, in a provocative challenge to socio-legal researchers and comparative lawyers, he asks: why should it? The issue, he contends, is not whether law matters to society; it is how society matters to law.
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Chapter 2: Invoking Law as Narrative: Lawyers’ Ethics and the Discourse of Law in the United States

Takao Tanase

Extract

2. Invoking law as narrative: lawyers’ ethics and the discourse of law in the United States 1. 1.1 THE MORALITY OF PARTISAN LAWYERING A Critique of Amoral Lawyering American lawyers have come under recent fire for lacking a moral compass. Luban (1988, p. xviii), for example, charges that American lawyers ‘are professionally concerned with the interests of their clients, not the interests of justice’. Certainly, the Code of Ethics of the American Bar Association (ABA, 2003, Art. 1.1) proclaims that ‘a lawyer shall provide competent representation to a client’. Unlike article 1 of Japan’s Lawyers Law (No. 205 of 1949) that provides that ‘the mission of lawyers is to defend fundamental human rights and realise social justice’, the ABA Code emphasises loyalty to the client. Of course, the ABA Code includes express prohibitions on impeding fair trials, such as forging documents and bringing frivolous and vexatious suits (Arts 3.1–3.3). Similarly, the Japanese statute provides for client protection, such as prohibitions on self-interested dealings and duties to maintain client confidentiality. But the simple reality is that lawyers uphold their clients’ rights under the law in return for a professional fee. Unsurprisingly, then, lawyers’ loyalty to their clients cannot be easily prised away from their loyalty to the law. The criticism in the US – that amoral lawyering is undermining lawyers’ obligations to the law – is, in effect, an allegation that these two commitments are no longer in equilibrium and that lawyers are overly focused on client service for private gain. Lawyers...

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