In the fall of 1945, Assistant Secretary of War John McCloy scribbled a note to a colleague reflecting on the challenge that lay before them. Having recently returned to Germany from Japan—“the other of the United States’ two monumental projects of transformational occupation”—McCloy summed up the situation facing the American military in blunt fashion. “There is so much to be done,” he surmised, “and so little talent to do it with” (113). In penning his note, McCloy probably would not have imagined that he would also be providing the thesis for Rande Kostal's magisterial book, Laying Down the Law: The American Legal Revolutions in Occupied Germany and Japan. Laying down the law in the occupied postwar territories of Germany and Japan required an immense amount of human capital and legal expertise, neither of which was especially present, particularly in the case of Japan. The result was an incredibly ambitious, some would say foolhardy, American project of foreign lawmaking that unfolded in moments of compromise, resistance, and improvisation. Kostal's talent for going deep across a diverse array of geographies and disparate historical moments is on full display in his ambitious, detailed, and compelling account of a remarkable moment in American legal history. Establishing legal liberalism by military dictatorship is a tricky business it would seem.

Kostal's book details the personalities and processes at the heart of the audacious project to impose American-style legal liberalism on two entirely different legal and political cultures. In six substantive chapters, Kostal takes on the points of convergence and divergence between the American military occupation of Germany and Japan dealing with postwar planning (Chapter 1); confronting the wickedness of the occupied legal systems (Chapter 2); and the challenge of remaking Japan's and Germany's constitutional law (Chapter 3), judiciaries (Chapter 4), criminal codes (Chapter 5), and approach to civil liberties (Chapter 6). In placing both countries together in his chapters, Kostal effectively captures the constitutional ideals and the on-the-ground limits that animate the histories of both occupations: across continents and oceans an American expansionist legal liberalism foreign policy was being born.

The scope of the enterprise of legal reconstruction in German and Japan, Kostal argues, was in many senses absurd, perhaps especially so given the absence of expertise brought to the task by most of those in charge. Kostal frames the occupation's lawmaking project as the product of the “grandiose ambition of American power,” but perhaps underplays something more specific: a moment in America's legal history when lawyers schooled in New Deal experience and expectations paired an innate belief in the power of American constitutionalism with brazen confidence in the capacity of elite lawyers to build models of liberal governance whatever the context (7). The achievement, of course, was a mixed one, and Kostal is rightly as interested in the setbacks, false starts, dead ends, half measures, and contradictions, as in the triumphs: the “failures of organization, intellect, and will,” as he puts it (8). There were many.

American planning for the postwar future of Germany began before the war ended, although more in “perfunctory” idealism about democracy and freedom than in well-formulated strategy (24). Given the widespread belief that the principal lesson from World War I had been a failure to impose “root and branch” transformation on Germany, the Allies pledged themselves to an occupation that would pivot a murderous fascist regime into one committed to peace and the rule of law. Moving from aspiration to reality would prove difficult, especially as the methods and end goals of postwar German government began to fragment among the Allies themselves, most notably the United States and the Soviet Union.

The difficulties of the American zone were trenchantly catalogued from the inside by Professor Karl Loewenstein, a legal expert brought on board to assist the American occupation, himself a refugee from Nazi atrocities, and notable among Americans for his facility in the German language and his expertise in legal and political fascism. Kostal relies heavily on Loewenstein's memoranda and diary entries describing American efforts to remake German constitutional law and its legal profession. Kostal takes up Loewenstein's principal objection that American policy fell into complacent error by leaving too many former Nazis in positions of power within the legal system. Given the ubiquity of Nazi ideology, party membership, and, at a minimum, tacit support for the regime among German lawyers and judges by the end of the War, “the reconstruction of German law,” Loewenstein insisted, “should under no circumstances be left to the discretion of the German authorities” (38). But starting a legal system on a blank page is easier said than done, as American authorities would discover. In the end, American efforts at German legal and constitutional reconstruction came to embody the “administrative pragmatism” of General Lucius Clay, America's chief proconsul in occupied Germany, rather than Loewenstein's principled exhortations of de-nazification (138). The result was the lingering influence of Nazi legal professionals after the War, a dejected Loewenstein, and Kostal's historical appraisal that an opportunity had been lost.

The problems, both principled and pragmatic, of generating a new legal system for a defeated fascist regime were legion. Americans began the enterprise knowing that the first task would be the elimination of Nazi law. But, in a dilemma all too familiar to every law student in a jurisprudence seminar, the simplicity of the task became bedevilled by the question of what constituted law. Were Nazi laws, with their abhorrent content, true laws? Was every public and private law, judicial decision, and legal institution created during the Nazi regime, tainted by illegitimacy, or only those laws that bore the explicit imprint of Nazi ideology? Wary of creating a legal vacuum to add to the problems of a devastated country following the collapse of the Third Reich, Americans decided on a selective approach, nullifying only the most noxious laws that supported the Nazi dictatorship or imposed discrimination based on race, religion, or creed. But even that selective task proved enormously challenging, because law, like a glass that breaks on the kitchen floor, had the habit of spreading itself far and wide, and the very definition of Nazi law remained elusive.

If many laws enacted by Nazis remained on the books, many judges appointed by Nazis remained on the bench to interpret them. The task of removing these judges also proved too much for understaffed American military authorities to manage, aided perhaps by the ability of German legal professionals, “well-educated, urbane, white-skinned,” to appear non-threatening to American officials. A similar mindset drove General Clay's approach to Germany's postwar “constitutional engineering” (138). “I thought,” Clay surmised, “the Germans could do it better than we could” (140). Although Clay set the overall framework of popular sovereignty, democracy, individual rights, decentralization, and the rule of law for the three regional constitutions of the American zone, many of the details were left to local German politicians. Loewenstein lambasted the Bavarian draft constitution as “authoritarian in spite of its democratic trimmings,” and Kostal notes the weak protections of individual rights among all of them (155). Kostal also argues that the overarching basic law enacted in the spring of 1949, typically considered a victory for liberalism, “far from vindicating civil liberties in West Germany, more often and decisively served as the basis of state-sanctioned repression” as German lawyers and judges continued to privilege notions of the state above the individual (299). “General Clay's fixed determination to restore German economy and self-government outstripped every other concern, including denazification,” Kostal writes (213). Loewenstein left Germany bitterly disappointed, a perspective that Kostal aims to grant greater prominence to in the historiography of the American occupation in Germany.

If Kostal's account of the German occupation was principally the story of liberal legalism in the hands of pragmatists, his story of the occupation of Japan is dominated by General Douglas MacArthur's singular ambitions of constitutional revolution. If expertise on German law was thin on the ground among American policy makers, knowledge of Japan's complex legal history, the Meiji constitutional order, and Japanese legal culture more generally simply did not exist for the American military leaders and lawyers in charge of occupied Japan. In fact, American officials deliberately courted individuals with professed ignorance of Japan to ensure that no one was beholden to Japan's existing legal traditions. It was the height of hubris, a project of liberal democratic authoritarianism directly in line with MacArthur's own immense talents, appetites, and failings, and equally bespeaking a racialized worldview of superiority unquestioned within American military and civilian government.

Kostal argues, however, that “racism” as an overarching explanatory framework of the American occupation of Japan may not be terribly helpful. Although admitting that “American paternalism in Japan was tinged by racism,” he points out how little explicitly racist terminology made its way into official government memoranda, and draws a distinction between American disdain for Japanese history, culture, and political arrangements, and discriminatory views about the Japanese race (103). Not all will find that distinction convincing, and Kostal leaves unexplored the principal reason that there was no Japanese American analogue to the German-émigré lawyers who served the American military in Germany. In the 1940s, the American incarceration of Japanese Americans along the American West Coast was only a continuation of entrenched systemic racism that kept Japanese Americans out of professions such as law, the academy, and public service. For understandable reasons of governance, the victorious American occupiers in postwar Japan may have dampened the tenor of their racist rhetoric, but racialized thinking was certainly present in MacArthur's self-described expertise in the “Asiastic Mind,” and in the ways in which the American occupation of Japan played out with much greater levels of top-down control than in Germany, and much less deference to Japanese lawyers and judges.

Nowhere was that control on greater display that in the American remaking of Japan's Constitution. Guided only in the loosest sense by the vague terminology of the Potsdam Declaration issued by the United States, Britain, and China, MacArthur “would be at liberty to improvise the content, pace, and intensity of the American program of occupation in Japan” (99). MacArthur privileged constitutional reform above all others and led a process to devise an entirely new constitution premised on popular sovereignty, individual rights and freedoms, and American-style judicial review. That a group of American non-experts “succeeded in drafting a credible document in a single week is rightly remembered as the single most impressive and consequential achievement of the American occupation of Japan” (129). As history reveals, democratic constitution-making is a messy and often fractious affair, although less so when an occupying military calls the shots. Disagreements among American drafters about phrasing and content were “settled quickly and unilaterally by the chain of command” (130). “The ‘MacArthur constitution’,” written in English and then translated into Japanese, Kostal writes, “had been the product of blatantly undemocratic procedures” (131). Moreover, rights on constitutional paper have never guaranteed rights in constitutional practice. Kostal adeptly details how the interaction of formal constitutional law with institutional actors in the Ministry of Justice and bench and bar textured and limited the liberalism of Japan's new constitutional instrument. More unsettlingly for Kostal, American leaders in Japan came to betray their own legal liberalism with increasing ease and abandon as the ideology of the Cold War supplanted any real attachment to rights of free expression, association, and thought, and the separation of powers and judicial independence that went along with them. “[L]iberal legal modernity was constructed and then undercut,” Kostal concludes, “in the classic American pattern” (318). In this sense, the American occupation of Japan foretold of foreign policy errors to come.

Kostal ends his narrative at the close of the 1940s with Germany and Japan both “liberal rule-of-law regimes in theory but not in practice” (345). It is all the more remarkable, then, that both states emerged in the decades following American occupation as being among the more successful nation states of the second half of the twentieth century. The seeds of the explanations of those success stories surely lie in the German and Japanese experiences not fully captured in the American records, which drive Kostal's remarkable history of American postwar ambition and ability, along with its limits. Laying Down the Law illuminates the important American side of a history with doubtless many stories still to tell.