Having kindly published my intermittent ramblings on Japanese law and the occasional other subject over the years, The Japan Times has seen fit to give me a monthly column.
It seemed appropriate to welcome readers to the inaugural with a couple of headline slogans that the Japanese government has used to encourage tourism. I try to write for “tourists” — the general reader who may be sort of interested in law and the way it affects society but doesn’t do law for a living. Most of my readers are also probably non-Japanese, whose understanding of law is based primarily on what they have learned and experienced in their home country, a background that may make the Japanese system seem very quirky and different.
Law is a fascinating subject if approached as a type of infrastructure rather than as a bunch of boring texts and semantic arguments. Just as the design of bridges, subways and buildings reflects a variety of engineering decisions involving requirements, resources and physics, how a government functions, how economic activity is regulated and who gets to tell whom what to do in a society are all manifestations of the legal framework on which it is established.
Thinking of law in this way also helps avoid the trap of attributing the workings of the Japanese legal system to abstract notions of culture and mystical, undefinable concepts such as “face,” “harmony” and “honor.” While Japan may seem more interesting when portrayed as exotic or inscrutable, the boring reality is that modern laws and legal institutions are designed by sensible, intelligent people seeking to achieve concrete, rational goals. This is particularly true of the Japanese legal system, which is actually much younger than its Western counterparts, many of which still retain elements predating the Age of Reason. For example, the fact that the significance of a statement made in an American courtroom is enhanced if it is preceded by a magic spell — an oath — is anachronistic to say the least.
Virtually every aspect of the Japanese legal system postdates the Meiji Restoration of 1868, which saw political power formally “restored” to the Emperor after centuries of rule in his name by warlords. From a legal perspective, it was nothing short of revolutionary: The years that followed saw a centuries-old feudal order dismantled; a new government structure formed; the introduction of a new system of land tenure; the establishment of modern, Western-style criminal and civil statutes, as well as courts to administer them; the adoption of Shinto as a state religion; and the imposition of mass conscription in a society where having a weapon had been the exclusive privilege of the samurai caste.
Even the household registry system that Japan retains today played an interesting role in this revolution. The neo-Confucian caste system that had prevailed for centuries and drew rigid distinctions between samurai, farmers, artisans and merchants was eliminated in part through the simple expedient of not including a “caste” data field in the registration system.
Many of these changes were implemented with great urgency. There was a grave threat from abroad, from the Americans and other Western powers who had forced Japan out of its isolation. This was not just a military threat to a country still using medieval technology, but a legal one as well. The treaties imposed upon Japan included humiliating infringements on Japanese sovereignty of the type that had been precursors to colonization in other parts of the world. Under these “unequal treaties” foreigners enjoyed extraterritorial status, were exempt from Japanese criminal law, and civil disputes between Japanese and foreign parties were resolved in consular courts controlled by foreigners. Establishing a “Western-style” system of laws and courts that foreigners could feel comfortable with thus became an important factor in renegotiating these treaties and preserving Japanese independence. What the Japanese people needed out of these new laws was of secondary importance.
There were internal threats as well: The Meiji Restoration was essentially a coup d’etat by competing factions united primarily by their underdog status under the old regime and the need to protect Japan from foreign threats. The restoration caused great social strife and involved two civil wars and numerous other violent disturbances. Imposing order with limited resources and a weak government in a way that did not result in one faction obtaining control over all the levers of power (as had happened with the shoguns of the past) was a delicate task indeed.
The resulting system was one in which compromise and co-opting often played a more important role than coercion. For example, lords who lost their fiefdoms were placated with governorships of the new prefectures that their domains became. Only after enough had accepted their new status were more forceful methods applied to the holdouts.
This first great wave of legal reform that took place after the Meiji Restoration was one of the factors behind Japan’s miraculous transformation into an economic and military power. Unfortunately, constitutional defects resulted in the military exercising increasing control over foreign and domestic affairs, leading ultimately to the nation’s disastrous defeat in World War II.
This led to a second great wave of legal system reform, during the U.S. Occupation. The Occupation gave birth to not just the current Constitution but also introduced new systems of economic regulation based on American models, and reformed family law, criminal procedure and the court system itself. After the Occupation, the Japanese government busied itself with undoing many American reforms or at least “Japanizing” them, though often leaving the words and overall structure unchanged.
This historical context helps explain what I consider to be some of the noteworthy (though not necessarily unique) characteristics of the modern Japanese legal system. The first is the odd influence of Western models. Many features of the legal system still have roots in codes copied from abroad primarily to show to foreigners — the statutory equivalent of Potemkin villages. Just as in the Meiji Era (1867-1912), Japan continues to look abroad for legislative models — sometimes seemingly at the expense of serious thought about what makes sense for Japan. As a result, it is often possible to describe Japanese laws and institutions in terms that are familiar to Westerners, though they might still be puzzled when they see how they actually function.
For example, it is possible to describe the law and procedure involved when a Japanese court recognizes a foreign divorce or custody decree in terms that will seem very familiar to an American lawyer. Yet this description would be misleading if it omits the fact that because of the family registration system, court decrees are simply never used in day-to-day life as proof of a family relationship the way they are in the U.S. or other countries.
Second, the way the legal system operates often indicates a preference for keeping the peace over objectively defined rights or duties, or even interpretive consistency. After all, in Japan the mantra of police and politicians alike is “maintaining order” (chian iji), not “law and order.” Japanese culture supposedly places a high value on wa (harmony) but that may be more a reflection of the fact that since the Meiji Restoration the nation has experienced wars, coups, foreign occupation, starvation, mass strikes and even terrorist attacks by a WMD-wielding doomsday cult. The focus on order means that when the police or prosecutors arrest someone, it may be about conduct that is disruptive in some way as much as it is about the elements of a crime defined in a penal statute.
On the civil side of things, Westerners may consider applying the law to settle disputes to be a basic judicial function. However, it is also possible to just settle disputes without getting deeply into the law, an approach that may have the merit of maintaining order without rendering the courts overly subservient to the demands of consistency.
Third, keeping the peace is facilitated by laws that are both vague and authoritarian. Westerners tend to conflate authoritarianism with totalitarianism, but in Japan authority is widely dispersed. Vaguely drafted rules give the authorities who administer them broad interpretive discretion, if not the power to make additional rules. Since it is almost axiomatic that rules are made for other people to follow, the result is that laws and regulations made in this way tend not to be conclusively binding on authorities themselves. A preference for legal vagueness may seem like an exotic cultural norm, but it is convenient for officialdom as well. Vagueness means never having to do something in any particular situation.
Fourth, the formal legal system has long been concerned primarily with managing relationships between social units that have their own internal rules — families, communities and so forth — rather than the rights and duties of individuals within those units (although there are some exceptions, such as employment relationships, which are heavily regulated). There have even been constitutional cases in which the Supreme Court has drawn a distinction between disputes affecting the “legal order of civil society at large” and those only affecting individuals within a relationship, with the court declining to become involved in the latter. In terms of governance, this is an approach that may have certain efficiencies, even if they result in weaker members of social units going without adequate protection.
In the field of economic regulation, a similar dynamic results in a focus on fostering and protecting vested interests. Next time someone starts telling you how Japan is a highly homogenous society, ask them why eastern and western Japan don’t even have the same electricity. In the Meiji Era, one utility bought its generating equipment from Germany, the other from America, and ever since, the government has been unable to unify the resulting differences in frequency.
Having few outright coercive powers, most regulators focus on policies that co-opt existing interests into regulatory regimes that limit competition in exchange for acknowledging the authority of the regulator — a cozy arrangement that usually comes at the cost of higher prices and/or poorer service to everyone else. The bizarre set of restrictions on international flights from Haneda airport (daytime flights only to locations that are no further than the longest domestic route, flights to more distant locations only at times when Narita is closed) is a more recent example — an ongoing set of compromises that accords balancing the economic interests involved in Tokyo’s two international airports a higher priority than the convenience of millions of travelers. This aspect of Japanese law is, I think, one of the profoundly deep structural issues that make it so hard to do new, disruptive things in Japan: The system is inherently designed to keep the order by protecting the old.
Fifth, and finally, Japanese law is very top-down. In fact, to many Japanese people the law is probably something that falls from above, like a nourishing rain or a destructive hail. It is so common to see Japanese people described as “law-abiding” that it is almost a cliche. However, I think it is more likely that the average Japanese person is respectful of the authority behind the law, which day-to-day experience may demonstrate is an ass, as a Dickens character so aptly put it. In any case, at least the appearance of obedience to the law seems to have always be more important than understanding it: Not until 2004 were amendments to the Civil Code — which contains many of the basic civil rules of society — finally rendered entirely in standard modern Japanese rather than the prewar classical language in which some laws are still expressed.
In fact, if they think about it at all, many Japanese people may actually harbor a kind of quiet contempt for the law. Why would they not? Historically there have been few instances when they were actively engaged in making it. The democratic law-making apparatus set forth in the current Constitution was effectively imposed from above and, in any case, Japanese politicians don’t win elections by making promises about law; they win on party affiliation and pork.
Seeing the many rules clearly designed for the benefit of special interests, why would the average Japanese feel anything more than a grudging deference for the letter of the laws they have never been invited to invest with a spirit?
These are some of the themes I will build on in the months to come. I invite readers to get involved in the discussions. Yōkoso again!
Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send comments and ideas to firstname.lastname@example.org.
IN FIVE EASY PIECES WITH TAKE 5