Sources of law and legal traditions

There are a number of sources of law in Japan, some of which have informal or contested status. With Japan's strong influence from the civil law tradition, leg­islation in the form of codes - which include the Constitution - is given primary significance in practice^[294] and in legal education.^[295] Other clear sources of law include delegated legislation, customary law, and international treaties.

3.1 Codified law­

Japan has six major codes (roppou), which establish a legal framework in the major areas of public and private law. The most important of these is the Con­stitution and the other five are the Criminal Code, the Code of Criminal Proce­dure, the Civil Code, the Commercial Code and the Code of Civil Procedure. These codes have remained largely unchanged since their enactment at the turn of the 19th century, with a few notable exceptions. Exceptions include the Constitution (considered below), and related family law amendments to the Civil Code. Other amendments have included a rewriting of the Code of Civil Procedure, and spo­radic amendments to the Commercial Code. Of course, the six codes do not cover everything. There are also many individual laws that cover specific areas such as child welfare,^[297] and even more specific matters, such as product �take back' recycling legislation^[298] or the characteristically Japanese Hot SpringsAct.^[299]

The Constitution

Japan's supreme source of law is the Constitution.

Another conspicuous feature of the postwar Constitution is the extensive list (or â€?bill') of individual rights, espoused by the Occupation forces in the hope that enshrining such rights in the Constitution would enhance Japan's democracy and prevent the excesses of wartime Japan.⁴⁶ These rights include the freedom of expression, assembly and association,⁴⁷ and religion;⁴⁸ equality under the law in political, economic and social spheres with regard to race, religion, sex, social status and family origin;⁴⁹ and the right to due process of law.⁵⁰ The Supreme Court has interpreted this last right to place limitations on restrictions to funda­mental rights, such as property rights and personal rights to life and liberty.⁵¹ Examples of this include procedural requirements of notice and hearing, and in some cases substantive reasonableness or rationality.⁵²

There are six articles in the Constitution dedicated specifically to the rights of criminal suspects and defendants.

40 Article 9 states: �(1) Aspiring sincerely to an international peace based onjustice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. (2) To accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.'

41 Constitution, art 66.

42 Constitution, art 68.

43 JW Dower, loc. cit.

44 Constitution, art 1.

45 Constitution, art 7.

46 H Oda, op. cit., p. 103.

47 Constitution, art 21.

48 Constitution, art 20.

49 Constitution, art 14.

50 Constitution, art 31.

51 H Oda, op. cit., pp. 106-10.

52 ibid.

53 Constitution, art 33.

54 Constitution, art 34.

55 Constitution, art 34.

56 Constitution, art 35.

57 Constitution, art 36.

Constitution also guarantees the following rights for defendants: a fair and speedy public trial,^[302] an open court,^[303] the right to legal representation (including at the state's expense if needed),^[304] the right to cross-examine witnesses^[305] and the right not to make incriminating statements.^[306] Furthermore, a confession may not lead to a conviction if it is unsupported by other evidence,^[307] nor is it admissible as evidence if made under compulsion, torture, or threat.^[308]

The Constitution also guarantees certain economic rights, reflecting the influ­ence of the �NewDeal' administration of the United States at the time theJapanese Constitution was drafted.^[309] In addition to rights typical of other jurisdictions, such as the right to just compensation for state-acquired property,^[310] the Con­stitution guarantees the right to a minimum standard of living.^[311] Of course, the significance of this right depends on the Supreme Court's interpretation, and con­siderable deference has been given to policy-makers with regard to this right.^[312] There are few - if any - absolute rights.

Yet another example is evident in the widespread criticism of the actual pro­tection of suspects' rights in Japan, for example, with regard to the length of detention on arrest, and access to legal counsel.^[318] Despite the constitutional provisions on confessions described above, confessions play a central role in Japanese justice and contribute to the 99.8 per cent conviction rate. Johnson argues that this must be seen in the wider context of prosecutors’ attempts to divert suspects away from the courts and encourage remorse and rehabilitation on the part of offenders.⁷⁵ He also concedes that over-reliance on confessions to secure convictions contains potential pitfalls.⁷⁶ The relatively long (and allegedly uncomfortable) period permitted to detain a suspect before charging (23 days) undoubtedly assists prosecutors in their quest to secure a confession,⁷⁷ and recent scandals surrounding false convictions have sparked calls for reform in the methods and recording of interrogations.⁷⁸

Despite the qualified and contextual approach evident in these cases, the very authority of the Supreme Court (and lower courts) to rule legislation unconsti­tutional was a very significant aspect of the new Constitution.

Legislation

Under the current Constitution only the Diet can pass legislation.⁸³ Neverthe­less, like other jurisdictions, a Bill passes through many stages before reaching the Diet. Typically, a Bill originates in a ministry, though members’ Bills have increased in recent years (for example, the recent Non-Profit Organisation Act).⁸⁴ A ministry will often consult with an advisory committee (shingikai), which is composed of experts and stakeholders drawn from academia, the media, labour, industry, local government, and so on.⁸⁵ The function of these committees is highly disputed. Some regard them as window dressing, which merely pro­vides legitimacy for a ministry-led process.⁸⁶ Others view them more positively,

75 D Johnson, TheJapanese WayofJustice, Oxford University Press, Oxford, 2002, p. 56.

76 ibid. p. 274.

77 DHFoote(1991),loc.cit.

78 M Ito, �New Magazine Takes Aim at Wrongful Convictions’, The Japan Times (Tokyo), 1 February2008.

79 Supreme Court of Japan, 4 April 1973, Keishuu 27-3-265.

80 Supreme Court of Japan, 30 April 1975, Minshuu 29-4-572.

81 Supreme Court of Japan, 17 July 1985, Minshuu 39-5-1100.

82 H Oda, op. cit., p. 42.

83 Constitution, art 41. Under the Meiji Constitution, the emperor also had this power.

84 JKingston,op.cit.,p.73.

85 See generallyFJ Schwartz, Adviceand Consent: ThePoliticsofConsultation in Japan, Cambridge University Press, Cambridge, 2001.

86 ibid. emphasising the contribution such committees make to the transparency of government.^[319] A particularly important advisory council is the Legislative Advi­sory Council, which is consulted on proposed changes to major laws and the justice system. As to be expected, this body has a large contingent of legal spe­cialists, including from the judiciary, the procuracy and the Bar. However, recent reforms have demonstrated that the legal profession and the Ministry of Justice, though very influential, do not necessarily control the Legislative Advisory Coun­cil and its various subcommittees, and are limited in the degree to which they can impose their vision of law and legal institutions on the reform process.^[320]

Other important stages in a Bill's life include review by legal advisers to Cabi­net from government and the judiciary, and review by the ruling party, which is pervasive at all stages in varying forms.^[321] At the pre-tabling stage, the ruling party typically negotiates with opposition parties to ensure smooth passage in the Diet once the Bill is formally tabled.^[322] Once tabled, the passage of a Bill resembles other jurisdictions. ABill must pass both Houses, though if the House of Council­lors rejects a Bill, the House of Representatives may nevertheless �force' a Bill into law the second time around with a two-thirds majority.^[323] Each House also has standing committees that specialise in reviewing legislation in a particular area. Law-makers in these committees have traditionally developed ties with related industry lobby groups, which has created accountability problems alongside the benefits of accumulating individual expertise in a given area of law-making.^[324] The default rule is for an Act to come into force 28 days after promulgation.^[325] As one of his symbolic duties, the Emperor promulgates the act in the official Gazette (kanpou).

3.2 Case law

The second source of law in Japan is case law. There is no formal rule in Japan of stare decisis - the doctrine that like cases should be held alike and lower courts should defer to the precedents of higher courts. However, it would be a serious mistake to underestimate the precedential value of case law in Japan.

First, the courts have undeniably developed law, often as a result of the open- ended nature of the major codes.^[326] A conspicuous example is the law of tort, summed up in the Civil Code as follows: �A person who has intentionally or negligently infringed any right of others... shall be liable to compensate any damages resulting in consequence.'^[327] It has been the role of the courts to flesh out this and other provisions with doctrine, such as what constitutes negligence and causation.

The courts have also been instrumental in giving a local flavour to Japan's received European legislative models.^[328] For example, through the use of doc­trine such as �abuse of rights', �good faith' and �public policy', the courts have �pierced the veil' of contractual relationships in employment and tenancy to pro­mote equitable results (though not in the English law sense of �equity').^[329]7 In the background to these efforts has been Japan's unwritten covenant in post­war industrial relations that, while certain other discretions were permitted to employers, employment security is paramount and will be protected by the courts even when this deviates from the express terms of the (statute) law.^[330] Another example is environmental protection and product liability where, after much hesitation, Japanese courts eventually responded by creating major circumven­tions to traditional tort law contrary to corporate interests in favour of consumer victims.^[331] Similarly, postwar urban development has provided the context for decisions in tenancy disputes and administrative litigation that temper the strict terms of the law with notions such as community expectations.^[332] While some see in this a uniquely communal approach within Japanese law, perhaps driven by cultural attributes,^[333] the reality is more complex. The courts have been duly �formalistic' as a default rule, for example, where the relationship of the parties is not a significant issue.

Two further reasons that militate against underestimating the value of prece­dent in Japan lie in the de facto and de jure weight of Supreme Court decisions. Japan's hierarchy of courts and �career judges' (who have not spent time as pri­vate lawyers) tends to promote consistency among judgments and deference to the Supreme Court and its administrative arm, the General Secretariat.^[334] Furthermore, some specific provisions grant rights of appeal on the basis that a lower court deviated from a Supreme Court decision.^[335]

Despite the above, case law is not regarded precisely as it is in common law jurisdictions. Arguably, because of the lack of a formalised tradition of stare deci­sis, the distinction between ratio decidendi (the reasons for a decision) and obiter dicta (non-essential commentary) is less meaningful in Japanese law.¹⁰⁴ More­over, there are conspicuous examples of lower courts flouting the precedents of higher courts, where arguably a common law court would have made an attempt to distinguish the case at hand.¹⁰⁵ Ultimately, the lack of an established tradition of stare decisis means that the significance of precedents is more highly contested that perhaps it is in a common law jurisdiction. This includes contestation within the Supreme Court itself, particularly in cases concerning the interpretation of constitutional rights.¹⁰⁶

3.3 Regulation

The third source of law is â€?regulation’, a term that encompasses cabinet orders (seirei), ministerial ordinances (shourei), local government ordinances (jourei), administrative rules (gyousei kisoku), and less formal instruments and practices, such as â€?administrative guidance’ (gyousei shidou). There is no precise constitu­tional provision authorising these executive rule-making and quasi-rule-making behaviours, but as elsewhere, the exigencies of a complex, post-industrial soci­ety mean that governance by primary legislation alone is unfeasible.¹⁰⁷ The Supreme Court has attempted to impose limits on such delegations in the name of Diet supremacy through requirements of specificity and concreteness, yet the Court has also granted considerable discretion to the executive in its various manifestations.¹⁰⁸

As in most other jurisdictions, primary legislation typically provides a frame­work to be filled in later by regulations, often devised by regulatory agencies such as the Fair Trade Commission, or a body more closely related to gov­ernment, such as the Government Personnel Authority, or, more commonly, a ministry. Another form of regulation is directives or â€?circulars’ (tsuutatsu) within government hierarchies, which potentially impact the rights and duties of citizens.¹⁰⁹ The pervasiveness of vertical ministry regulation directed internally and towards the public and industry is often cited as evidence of a highly cen­tralised and powerful bureaucracy in Japan.¹¹⁰ However, some point to the nego­tiated character of regulation to question this conclusion,¹¹¹ and, as noted above

104 HOda,op.cit.,p.53.

105 ibid., p. 52.

106 ibid., p. 53.

107 C Parker et al (eds), Regulating Law, Oxford University Press, Oxford, 2004, p. 267; S Argument, �Delegated Legislation’, inMGrovesand H P Lee (eds), AustralianAdministrativeLawBndamentals, Principles andDoctrines, Cambridge UniversityPress, Cambridge, 2007, p. 135.

108 For example, Supreme Court of Japan, 6 November 1974, Keishuu 28-9-393, which ruled constitutional the designation byan executive agencyof�political activities’ proscribed bytheLawon GovernmentEmployees.

109 HOda,op.cit.,p.54.

110 C Johnson, originally published in MITI and theJapaneseMiracle (1982), reprinted inCJ Milhaupt, J M Ramseyerand MKYoung, op. cit., p. 515.

111 JO Haley, �The Paradox of Weak Power and Strong Authority and The Japanese State’, in R Boyd and TWNgo (eds), Asian StatesByondtheDevelopmentalPerspective, Routledge, NewYork, 2005, p. 68. and explained below, there was a backlash during the recent decade of law reform (1996-2005) against the proliferation of regulations, particularly of an informal character.

Similarly, there has been a movement to devolve regulatory authority to local government. This process has roots in the immediate postwar era under the rubric of democratisation and decentralisation, but was partially derailed by Japanese administrators emboldened by the reverse course of the later years of the Occupation.^[336] Accordingly, recent reforms have attempted to enhance the authority of local governments to set local rules, and ideally raise local funds.^[337] These recent reforms appear to alter the context for a series of decisions exploring the relationship between central and local rules. Early on, the Supreme Court ruled that the Local Government Act met the required degree of specificity and concreteness to allow a delegation of the power to impose criminal penalties.^[338] Nevertheless, a doctrine has emerged that national laws that are clearly intended to be uniformly applied trump local regulations.^[339] Conversely, local regulations can �top up' national minimum standards.^[340] As the devolution movement con­tinues to displace national with local authority, presumably the courts will be more inclined to look favourably on local regulations.

Administrative guidance (gyousei shidou) is a practice whereby government seeks to influence the behaviour of private industry and individuals through informal mechanisms - for example, advice - and is therefore on the periph­ery of law and regulation, if not a formal source of law. Because of its informal nature, it can take various forms, ranging from written directions to oral commu­nications. The Japanese Government has used this form of regulation to guide development in Japan and balance competing interests, such as communities and developers.^[341] Another famous, if somewhat dated, example of administra­tive guidance is the Government’s informal encouragement of automakers to limit exports �voluntarily’.^[342] Some argue that administrative guidance is a key tool for competing factions of the bureaucracy to extend their presence in society and carve out jurisdictional niches.^[343] Others argue that the practice has been integral to mediating received European codes in Japanese society as a tool of interpretation.^[344] Of course, just as encouragement maybe informal, sanctions may equally be subtle and beyond formal law. This has created challenges for the courts in supervising executive conduct and decision-making. A series of cases has extended judicial review over administrative guidance in light of its effect in practice on the rights of citizens.^[345] In recent years this has been fol­lowed up through codification creating strict limits on the use of administrative guidance.^[346]

3.4 Internationallaw

The fourth source of law in Japan is international law, that is, bilateral and multilateral treaties and international customary law. While the Cabinet has the authority under the Constitution to enter into international treaties, these gener­ally must be ratified by the Diet to take effect in Japan.^[347] The Government takes the view that treaties that concern matters of Diet jurisdiction, agreements that require financing, and diplomatic treaties of high political significance require ratification.^[348] However, if ratification occurs, it must be total - the Diet may not impose any qualifications on an international agreement.^[349]

The Constitution states: �The treaties concluded by Japan and established laws of nations shall be faithfully observed.'^[350] Accordingly, a ratified treaty has legal effect regardless of whether it has been translated into domestic law, though legislating the content of the international agreement may be integral to imple­menting the agreement.^[351] The relationship between the Constitution, domestic legislation, and international law is complicated and remains contested. The prevailing view is that the Constitution trumps international law in the domes­tic sphere, but to avoid legal effect under international law with regard to an �unconstitutional' treaty obligation, the proper steps for withdrawing from those obligations must be taken.^[352] Moreover, because treaties are typically ratified, the issue of conflict between such obligations and national law does not have great significance.^[353] Finally, the �established laws of nations' referred to in art 98(2), provides a constitutional basis for the validity of international custom­ary law.

3.5 Customarylaw

Domestic customary law is the fifth source of law in Japan. There are a number of legislative provisions that allow for this, including a general provision in the Civil Code, which links the application of customary law to the intent of the parties for customary law to apply.^[354] Other provisions in the Law on the

Application of Laws^[355] and in the Commercial Code^[356] allow for customary law to fill a legal vacuum. In some cases, the courts have relied on custom to mediate the reception of European legal codes in Japanese society. An example of this is the use of custom to justify a departure from the strict terms of employment agreements.^[357]

3.6 Academic commentary

The sixth source of law in Japan is academic commentary. Like case law, there is no formal legal basis for commentary to be a source of law. However, there are a number of avenues by which legal commentary affects the decisions of courts and the development of law. The influence is arguably particularly strong in Japan given the dependence of the courts on foreign law specialists to shed light on the nature of Japan's received codes and doctrine.^[358]

3.7 Summary

In summary, Japan's sources of law are various and have varying levels of formal­ity and bindingness. Viewed as a whole, a number of conclusions are possible. First, the centrality of codes might suggest that Japan belongs to the �civil law family'. Nevertheless, the pervasive (though not total) influence of American public law requires a rethinking of this characterisation. Second, the interaction and balance among the sources of law might suggest that Japan has eschewed a formalistic approach to law, and has instead embraced a pragmatic separation of powers. This is manifested by the volume and significance of regulation as opposed to legislation, which itself typically originates from drafters from the executive. It also emerges in a Supreme Court that is typically deferential to the executive and legislature, especially in highly �political' areas, such as defence. Moreover, this pragmatism is demonstrated from the important role of custom­ary law, commentary and regulation as a buffer between the particular social context of postwar Japan and Japan's received codes.

Nevertheless, each of these examples of a contextual rather than a formal approach to law has conspicuous counterexamples. Therefore, perhaps the main lesson is that caution is warranted before making sweeping generalisations about Japanese law. Indeed, this is also true of other jurisdictions, including Japan's Anglo-European models. These also contain a balance between contextual and formal, which is similarly reflected in the interaction among various sources of law.^[359]

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