REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1964.tb02253.x |
| Date | 01 November 1964 |
| Published date | 01 November 1964 |
REVIEWS
LAW
IN
JAPAN:
THE LEGAL
ORDER
IN
A
CHANGING
SOCIETY.
Edited
by
ARTHUR TAYLOR
VON
MEHREN.
[Cambridge, Mass.:
Harvard
University
Press
;
London
:
Oxford University Press.
1968.
xxxviii
and
706
pp.
26
net.]
THERE
has been, in recent years,
a
gradual change in the world’s centre of
power. While Europe is still important, the significance of Asia
is
increasing
daily. Western scholars-as well as statesmen-are, however, too frequently
unable to understand the eastern approach, primarily because of their
unwillingness to
see
Asia’s problems through Asian eyes. This myopia
operates on nearly every cultural level, and is made more complete by the
western scholar’s unwillingness to learn Oriental languages. Anything,
therefore, which facilitates an understanding of the Asian approach
is
to be
warmly welcomed.
In September
1961
a conference took place at the Harvard Law School
under the auspices of the Japanese American Program for Cooperation in
Legal Studies. At this a number of papers on
Laze,
in
Japan
were presented
by Japanese scholars and discussed by a group of Japanese and American
legal thinkers. Professor von Mehren has edited and commented upon these
labours with
a
view to the better understanding of “The Legal Order in
a
Changing Society.”
The choice of Japan as the society in question is very apt. While military
occupants elsewhere may have sought to encourage the growth of an indigenous
democracy, MacArthur’s impact on Japan and every facet of Japanese life
has been fundamental.
“
Japanese judges and scholars were now called on to
employ and to teach legal doctrines derived from a legal system with which
few of them had any proper acquaintance.” The whole purpose of the
Program was, therefore, “to enable Japanese jurists and legal scholars to
attain
a
greater understanding of the elements of American law that had been
introduced into the Japanese legal system,” especially as, according to one
commentator, “today one cannot be a ‘serious’ scholar of law in Japan
without dealing with the American law of one’s field.”
The papers in this symposium have been grouped under three rubrics:
the legal system and the law’s processes, dealing with such matters as
litigation and the profession; the individual, the state and the law, of which
a large part is devoted to constitutional law and another to criminology; and
finally the law and the economy. In
a
review
it
is, unfortunately, only
possible to draw attention to some of the salient points of one
or
two of the
seventeen papers.
In
so
far as the Constitution is concerned, perhaps one may question
whether the methods employed in
1946
to provide
“
a standard constitution
befitting
a
twentieth-century liberal, democratic state
”
were really
so
different
from those connected with the Meiji Constitution of
1889,
which had been
“drawn up with the utmost secrecy and promulgated as a gift of the
Emperor to his subjects.” The great departure, however, is claimed to be
the “transition from rule by law to the rule of law (American in its
institutional aspect).”
The Constitution is not the only part of public law that has been influenced
by alien forces, nor is American law the only system that has served
as
an
example
or
an intiltrator. In fact, until the cataclysm of
1945
the main
foreign influences were continental. Thus, the
1880
Penal Code was French
in origin, and by the time of the
1907
amendments German law had replaced
743
744
THE
MODERN
LAW
REVIEW
VOL.
27
the French as the motivating influence. The American occupation’s chief
contribution has apparently been to reduce crimes against the imperial family
from constituting a special category and, in accordance with principles of
sexual equality, has removed adultery from the criminal law-previously
a
wife and her paramour were alone punishable. In the field of criminal
procedure and evidence the change has been more far-reaching, with accusatory
procedure virtually replacing the inquisitorial.
English law too has had an influence. Statutes dealing with mortgage
debentures and trusts date from
1906
and
1922,
and legal aid societies began
work by the end of the First World War. On the other hand, the West may
also learn from Japan,
at
least in
so
far as suits for damages are concerned.
The Japanese are apparently non-litigious, and judges have been known to
delay decision in order to encourage the search for compromise, but when they
do go to court an appeal is almost inevitable.
one of the positive results of the American influence, of the activities of
American law firms in Japan, and
of
the visits by Japanese lawyers to
America has been to increase the prestige and activity of Japanese lawyers.
The majority of judges now come from the Bar, the lawyer himself plays
a
more active role in legal proceedings, and “the lawyer, upon whom the
litigant’s burden rests, has acquired a new status not only in the courtroom
but also potentially as
a
lawyer-citizen in the social order.
. .
.
Nevertheless,
one cannot be very sanguine about prospects for the profession.” Recruitment
is slow, and the general view remains that the profession is for
a
small Bite
with legal services used only as a last resort, for “vindication of the injured
party’s rights under the written law is of less functional significance in Japan
than it is in western societies, particularly the United States. The persistence
of traditional values means that no psychic cost attaches to the failure to
vindicate; indeed, vindication would presumably entail such costs.” The
increasing use of motor vehicles and the concomitant growth of insurance may
modify this view in one field of tort at least.
When discussing the rule of law one of the Japanese contributors suggests
“that the Japanese Constitution purports to realise the rule of law through
legal means, whereas the modern English constitution secures the supremacy
of law through political measures.” The reason for this is
that
the draftsmen
sought to bring the relation between government and law under the rule of law
and did
so
by inserting clauses guaranteeing fundamental human rights and
providing for the judicial review of legislation, both concepts reflecting the
American inspiration of the Constitution.
It
is not, however, in accordance
with American concepts of the rule of law to hold that the supreme executive
is above the law and can abrogate.
It
was nevertheless perfectly consistent
with reality for the Supreme Court to hold in
1961
that MacArthur “had
absolute power in governing Japan and that, therefore, Japanese law,
including constitutional law, lost its effect
to
the extent
that
it was contrary
to his order.”
It
would also be interesting to know how far American
academics share the view that the constitutional guarantee of academic freedom
“
means freedom of the outward activities of learning-for example, freedom
for the professor to lecture and for the scholar to publish the results of his
research.”
In view
of
the new attitude to obscenity and literature in the United
Kingdom, it may be
of
interest to draw attention to the views of the Japanese
Supreme Court
in
holding the translation and publication of
Lady Chatterley‘s
Lover
to be obscene
:
“. . .
it is not true that we cannot discover an artistic
quality quite different from pornographic literature in the depiction
of
the
twelve sexual scenes
.
.
.,
but even these are quite bold, detailed, and realistic.
They contravene the principle of privacy in sexual conduct.
. . .
The artistic
character of the book must be recognised not only in regard to the work as
a
whole but also for the twelve parts portraying sex. But artistry and
obscenity are concepts belonging to separate and different dimensions that are
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