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PALPABLE RUSH TO REFORM

Japan’s legal reaction to globalization

by Ross W. Browning

LAW IN JAPAN: a Turning Point, edited by Daniel H. Foote. Seattle: University of Washington Press, April 2008, 704 pp., 10 tables/8 figures, $65 (cloth)

Even as the pace of change in recent years has brought Japanese law to a “turning point,” the “confession-centric” system of criminal justice risks a breakdown over the investigations of white-collar and organized crime.

That observation comes from an American sociologist, one of 35 contributors — half of whom are Japanese legal scholars — to this volume of papers on the major developments in Japanese law from 1961 to the 2002 Seattle, Washington, conference where the papers were originally presented.

University of Tokyo law professor Daniel H. Foote has compiled, updated and, in some cases, translated a comprehensive backstage tour of the trendsetting civil and criminal litigation waged during this period as well as the public, legislative and bureaucratic reactions to it — from Minamata mercury poisoning to more recent medical errors and labor practices.

The book is divided into (1) the legal system itself, (2) the individual vs. the state (including the amazing world of discretionary prosecution), and (3) corporate and tax issues. In an introductory overview, Foote recalls three decades of “gradualism” in one legal field after another followed by the “pathbreaking change” in the 1990s that led ultimately to the Justice System Reform Council, established by the Diet in July 1999 with the backing of Prime Minister Keizo Obuchi.

The lay-judge trial system due to start in May 2009 and the steps taken to raise the number and quality of lawyers as well as streamline judicial hearings are among the reforms that grew out of the council’s 2001 recommendations.

If the rush to reform seems palpable, it’s partly due to the perception by Japanese in and out of the legal profession that establishing a “popular base” for the judicial process was needed to enhance public trust in the often drawn-out sparring over technicalities.

Whether most Japanese are now ready to experience greater intimacy with the bench is another matter. The results of a Supreme Court poll, released last week, indicate that more than half of the 10,500 adults surveyed harbor misgivings about, or want no part of, joining a “jury” panel of six lay and three professional judges to examine and issue verdicts on cases involving serious crimes. Respondents cited a reluctance to decide another person’s fate, doubts about their ability to serve and fears for their own safety.

Meanwhile, Japanese business leaders — well known for complaining about the high costs of America’s litigious society but confronted in recent years with more and more suits involving mergers, fair value for stockholders, patent claims and other globalization challenges — have concluded that having more lawyers around isn’t such a bad idea after all.

University of Hawai’i sociology professor David T. Johnson’s examination of criminal justice achievements is a good starting point to consider whether this rapid change necessarily means progress. He says police and prosecutorial activities “are premised on a faith that evidence can be organized so as to say with precision who did what to whom.” But this faith is being tested as never before in a system whose heart is “confession through interrogation.”

Johnson cites a “dualistic” legal environment in which investigators are conferred with special powers “to make cases” against ordinary street criminals more easily than in, say, Britain or the United States, yet lack the routine authority — that police have elsewhere — to plea-bargain, offer immunity or conduct undercover stings to nab politicians and white-collar offenders.

In a subchapter titled “Why Pre-Meiji Law Is Less Dead Than the Dodo,” Carl Steenstrup, former professor at Munich University, asserts that the legal traditions of Japan — at least when compared to Chinese or Islamic law — are more akin to Western traditions than one might think. “Intensive studies of Indian logic among Nara Period Buddhist intellectuals sharpened the wits of the intellectual class and made dialectics possible,” and “pragmatic use of statutory law made the reception of foreign law possible.”

By contrast, Islamic or Shariah law early on was anathema to the spirit of codification. It evolved from various sources after Muhammad’s death as a set of Islamic values that scholarly judges or guardians applied to everyday legal matters, giving considerable deference to individual rights.

As Harvard professor Noah Feldman points out in his book “The Fall and Rise of the Islamic State,” once the Ottoman Empire began codifying Shariah law in the early 19th century following military setbacks, the law itself replaced scholars as “the source of authority” and “became a tool of the ruler.”

Steenstrup explains that the Japanese are heirs to the idea, “reinforced through the late Roman belief conveyed to Japan in Meiji times through imperial Germany, that the state antedates the legal system” and that rulers decide when to use the tool called law.

This worldview was already alive and well during the Tokugawa and Warring States periods, but not in monolithic form, as the law was different “for each village and for each status class.”

Respect for codified law can hardly be expected to exceed one’s ability to understand the wording. In Japan, a dichotomy in the language exists in statutes and legal documents prepared before and after 1945. University of Tokyo professor emeritus Koya Matsuo notes that young people have great difficulty reading older statutes because of the classical wording, complicated characters and use of the katakana syllabary instead of hiragana. He believes, though, that the Penal Code of 1907 “was practically saved” from obsolescence through the 1995 act to simplify the language.

Incidental to this reform was the repeal of anachronistic articles that provided harsher punishment for murdering a parent than for other cases of intentional killings. Might such “extraordinary protection for ascendants” have dated back to the ancient Chinese philosophical schools’ concern with having names correspond with their actuality? The sages discouraged the casual writing of the kanji for matricide or patricide because of the fear that their very appearance could incite thoughts leading to the act itself.

The more provocative excerpts and comparisons aside, this amply indexed and annotated work also chronicles administrative moves toward transparency amid Japan’s “contract era.” Translators will find it a valuable source for checking their preconceptions.

This writer only wishes there was a chapter on the development of immigration-related law that defines “Japanese” nationality.

Flawlessly edited, and signed off with Foote’s personal tribute to his mentor, the late Japan law scholar Dan Fenno Henderson, “Law in Japan” is scheduled for publication this month.