Discursive Justice: Interpreting World War II Litigation in Japan

By Timothy Webster

Since the 1980s, human rights litigation has spread around the world. I propose an analytical framework by which to interpret the multiple motivations and results of human rights litigation. By examining a recent spate of lawsuits brought by victims of World War II against Japan and Japanese corporations, this Article illuminates the contributions — and limits — of human rights litigation. Even when plaintiffs “lose,” as they usually do, the judicial opinion itself often serves several non-pecuniary purposes. First, the lawsuits serve a truth function, helping to establish facts about the war that are still contested at the present moment. Second, the lawsuits hold out the possibility of advancing the rule of law. Given the serious violations of human rights that took place during the war, judicial opinions reassert the primacy of law by clearly stating why certain conduct is illegal. Third, human rights litigation can also establish violations of international law, and thus contribute to the development of international legal norms. This framework, which I call a discursive justice model, has implications for understanding human rights litigation in the United States and other parts of the world.

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