Language | BILINGUAL

Any attempt to scale Japan's mountain of rules is doomed

by Colin P.A. Jones

Special To The Japan Times

In England of the distant past, the word “doom” was a legal term, referring to a judgment imposing a punishment. Some etymological sources suggest it has common roots with the Sanskrit “dharma,” a deeply complex word that can refer to customary social duties or divine law, depending upon the religious context.

When Buddhism was brought from India to Japan via China around 1,500 years ago, “dharma” was translated using the character 法 (hō), a word that now means “law,” but which served as a religious term for much longer. Around the same time Buddhism was being introduced from the Asian mainland, so were Confucian models of law and governance set forth in ritsuryō (律令, the ancient Chinese code). The ritsu (律) were the rules of crime and punishment. Ryō (令, a character that is now usually pronounced “rei“) were the rules of government, such as how courtiers had to dress while in mourning for a dead emperor.

The ritsuryō are long gone and today is the generic term for law, though it is typically used in combination with “ritsu to form hōritsu (法律, statutes), which is a generic term meaning “law,” but one that also has a more specific meaning. It refers to the statutes passed by the kokkai (国会, the National Diet), which, under the Constitution, is the sole law-making organ of the state. In reality, however, a lot of laws are drafted not by Diet members but by bureaucrats who tend to delegate to themselves and their ministries the authority to fill in the details with regulations that don’t go through the Diet.

The term hōrei (法令) is both more technical but also broader than hōritsu, encompassing statutes passed by the Diet as well as the vast pantheon of secondary legislations. A related term is hōki (法規), which can be used in a broader sense than hōrei (including the rules of local government bodies, for example), but in the field of public law it refers to rules affecting the rights and duties of the people, which, in a democracy, should only be passed by the legislature.

According to the Ministry of Internal Affairs and Communications, as of Jan. 1, 2015, Japan’s national government had a total of 8,079 hōrei. These can be listed in a hierarchy with the nation’s single kenpō (憲法, constitution) at the top, followed by 1,933 hōritsu.

One of these statues is special, in that it is not called a hōritsu; this is the kōshitsu tenpan (皇室典範, Imperial House Law), which sets forth the special rules governing the Imperial family and the now-sensitive subject of succession to the throne.

The kōshitsu tenpan was once co-equal to the Constitution and could not be amended by the Diet, hence its different appellation. Article 2 of the current Constitution clearly subverts the Imperial House Law to the Diet’s legislative power, though the difference in terminology is only apparent in the Japanese version.

Below hōritsu there are some 2,079 seirei (政令, Cabinet orders). Under the constitution the naikaku (内閣, Cabinet) acting as a whole may issue such orders to implement the Constitution or statutes, but may only provide for criminal penalties if authorized by statute. Although the Emperor no longer has the power to issue them, a small number (75) of chokurei (勅令, old Imperial decrees) still remain in force, including one from 1895 declaring “central standard time” to be the nation’s official time, (though this is no longer really the case since nations now keep time based on atomic clocks).

Next come 3,648 furei (府令) and shōrei (省令), regulations taking the form of orders issued by the heads of individual shō (省, ministries) represented in the Cabinet, or by the prime minister representing the naikakufu (内閣府, Cabinet office). There are also a small number of kakurei (閣令, orders issued by the prime minister under the prewar constitutional system), including one issued on July 30, 1912 — the day Emperor Meiji died — directing how flags should be flown during periods of national mourning.

Finally there are 335 sets of kisoku (規則), which are rules that are issued by a national government institution that is not headed by a minister. These may include the regulations of parts of the government not represented in the Cabinet, such as the jinjiin (人事院, National Personnel Agency), or detailed regulations created by specific bureaus or agencies of a particular ministry. Some kisoku are special because they are specifically anticipated in the constitution: the rules issued by the Supreme Court governing the details of court procedure and administration, and the rules passed by each of the Diet’s two chambers to govern their own affairs (though some of these administrative details are actually set forth in a statute, the Diet Act).

The above tally does not include the jōyaku (条約, treaties) ratified by the Diet, as well as countless kunrei (訓令, directives) and yōkō (要項, guidelines) used by government agencies mostly for internal purposes. Nor does it include the voluminous tsūtatsu (通達, notifications), one of the basic tools of administrative guidance that is used by regulators to communicate with their constituents regarding the interpretation and implementation of all of the above laws, regulations and rules. Finally there are the jōrei (条例, ordinances) passed by prefectural and municipal assemblies and covering a huge variety of subjects. Some are serious (e.g., punishing people who molest women on trains) and some silly, such as one in Kyoto encouraging people to toast using sake rather than beer.

If this seems like a lot of rules, it is.

There are also municipal kisoku, which may be compiled into a collection of reiki (例規), a term that refers not only to ordinances and rules, but may also include kanrei (慣例, conventions) and senrei (先例, precedents) that so easily become quasi-official norms. And if you were a real glutton for punishment you could turn to the galaxy of naiki (内規, internal regulations or bylaws) that organizations establish to govern themselves.

As with many other countries, Japan is seemingly burdened with far too many rules. Although any attempt to master them in their entirety would certainly be doomed, at least they all have names.