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
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
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,
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
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
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
lawyer-citizen in the social order.
one cannot be very sanguine about prospects for the profession.” Recruitment
is slow, and the general view remains that the profession is for
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
sought to bring the relation between government and law under the rule of law
by inserting clauses guaranteeing fundamental human rights and
providing for the judicial review of legislation, both concepts reflecting the
American inspiration of the Constitution.
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.
was nevertheless perfectly consistent
with reality for the Supreme Court to hold in
that MacArthur “had
absolute power in governing Japan and that, therefore, Japanese law,
including constitutional law, lost its effect
it was contrary
to his order.”
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
the new attitude to obscenity and literature in the United
Kingdom, it may be
interest to draw attention to the views of the Japanese
holding the translation and publication of
to be obscene
“. . .
it is not true that we cannot discover an artistic
quality quite different from pornographic literature in the depiction
twelve sexual scenes
but even these are quite bold, detailed, and realistic.
They contravene the principle of privacy in sexual conduct.
. . .
character of the book must be recognised not only in regard to the work as
whole but also for the twelve parts portraying sex. But artistry and
obscenity are concepts belonging to separate and different dimensions that are