August 21st, 2009


Keep distant the hell of accusation

Alan Macfarlane is an anthropology lecturer at Cambridge University who recently published Japan Through the Looking-Glass. Now, I'm often wary of Japanologists, but Macfarlane (I stumbled across his lectures searching YouTube for material about my sociological hero Max Weber) says things which chime with my understanding of Japan's essential difference from the West -- things which I think even long-term Japan-resident foreigners often fail to understand deeply enough (I'm thinking particularly of eager litigant and Click Opera whipping boy Debito). I wanted today just to give you his undergraduate lecture Law and Justice in Japan, followed by my lecture notes.

Nick's lecture notes

There's no jury service in Japan, though the Japanese are trying to adopt the system. AM considers that attempt a complete disaster, unlikely to be achievable. What the Japanese are setting up is a modified version. Instead of 12 individual humans who make a decision, Japan has the judge sitting with some lay people who are guided by him. [This, by the way, is dealt with in the TV drama Majo Saiban, The Witch Trial notes Nick.]

Western legal concepts have been involuted, convoluted and changed in Japan. Western imports have given Japanese law a surface resemblance to the law of the West (even in courthouse design), but when you look deeper, everything is different.

Absence of Crime: When societies modernize, crime rises. But Japan is a total exception. The crimes rates are low and falling. The murder rates in the US are ten times higher than those in Japan, rape rates fifteen times higher, robbery rates two hundred times higher, theft about six or seven times higher. These are corrected for under-reporting.

Japanese cities are habitable places where one may move about freely at any time of the day or night without feeling any danger.

Guns are involved in only twenty crimes a year in Tokyo. Not bad for a city of 20 million. No hard drug problems. So why?

It's not the harshness of the punishments. Japan's punishments are extremely light. Fines and suspended sentences are preferred. Very few people are sent to prison. Less than 2% of all those convicted of a crime ever serve a prison sentence. In the US that's 45%. Half the prison sentences in Japan are for one year or less (in the US, only 4% of sentences are less than a year). Japanese prisons aren't nice if you do go, though.

Are the Japanese police or prosecutors inefficient? No; they have much better solving rates (57% of reported cases solved) than US prosecutors. The conviction rate of those going to trial is 99% -- they won't send people to trial unless they're 99% certain they can convict.

A wider explanation is ethics. People don't offend because of interpersonal responsibilities. Montesquieu talked of group responsibility in Japan; whole villages were punished for one inhabitant's crime. This has maintained itself to this day; smaller groups still feel the shame if one of their members transgresses; the whole family weeps, takes the blame. A professor is responsible for their students.

A managed society: Japan is a managed society, where everyone manages, polices and surveys everyone else. This is called kanri shakai. You are reflected in the other. This is the opposite of a Western individualistic society. It stops people deviating or committing serious crimes.

There's also a sophisticated system of tracking; koseki registration at the town hall and police provides an ID card system which makes it easy to trace people.

The yakuza: Finally, the yakuza reduces crime rates in Japan. In all advanced societies, much behaviour is in the grey area between legal and illegal; drink, soft drugs, gambling, prostitution. Attempts to police them fail; the police easily get corrupted by the money, become part of that world.

The yakuza is a guild (za), about 500 years old. It began as a guild to control gambling, then drink, then prostitution and other entertainments. The yakuza have always been semi-legal. They're not like the mafia, but a public body with recruiting offices and annual meetings in big hotels. The police provide special car parking for their stretch limos, for instance.

The police have lists of yakuza members. When a crime happens, the mafia may pass on information to the local police to help them solve it.

The yakuza aren't allowed to have guns, and they don't use hard drugs. They aren't nice people -- they can be bullies -- but they do keep crime low.

Some companies use yakuza to sit in on shareholder meetings and look troubled if a shareholder raises a difficult question. In return, the yakuza might be given large holiday homes on nice Japanese beaches. The yakuza own their own legitimate businesses too; travel agencies, hotels. Income tax inspectors go and inspect their books sometimes.

Litigation: Japan is a tribal society rather like one AM studied in the highlands of Nepal. Dishonour is a bigger disincentive than legal punishment. Japan is a very large village in that sense.

Rates of civil litigation -- people suing each other about contracts, debts and so on -- are very, very low. Between one tenth and one twentieth of the rates of litigation seen in Britain or America, and falling. There are fewer lawyers and judges now in Japan, per capita, than there were in the 1920s.

Heads of houses and ruling families strongly discouraged legal redress for centuries. "All quarrels and disputes are strictly forbidden on pain of death". "Never run out of rape seed and never go to law; keep distant the hell of accusation".

There are only a tenth of the number of lawyers and judges in Japan as in the US. Germany has two thirds of Japanese population, and six times the number of judges. Japan was told it needed lawyers, so it set up big law schools training thousands of lawyers each year. But they don't need them, so 90% are failed. They can't get jobs as lawyers, but will be employed as bureaucrats, administrators, etc even after "failing".

In the West people see suing as a binary, competitive system. Someone is wrong, someone is right, your day in court is like a game of tennis, someone loses, someone wins. The alternative view is when you see the point of law as process of reconciliation, to heal wounds and return equilibrium. Stop people breaking off, stop them saying one is right, the other wrong. Rather than a competitive game, you work to harmonize, to adjust unequal statuses. People are not taken to be "equal before the law"; everything is, instead, relative to your status. What is right for an uncle to do is not what's right for a nephew to do, what's right for a man to do is not right for a woman, and so on. This view of law is tribal, non-modern, context-dependent, and Japan falls very much to this side.

The Japanese don't think of people having individual rights; the group is more important. Mediation "is the god of the towns", almost all disputes are settled out of court. The tradition is of didactic or co-erced conciliation -- uncompromising settlements strongly in favour of one party are seen as inimical to group harmony.

Why? Because of the emphasis in Japan on harmony rather than assertiveness.

A Western academic whose son cracked his head on the concrete of a school pool tried to litigate against his own school. Everyone he knew said it was against Japanese culture, he should drop it. He persisted, and basically everyone drifted away from him and he had to leave Japan, possibly also dissolving his marriage to a Japanese woman too.

Nemawashi means root binding that allows you to move a tree somewhere else. It's a principle of corporate restructuring -- you tell people over a long period that change may happen, prepare them, prevent shocks.

Embedding: Japan has an embedded political system, an embedded legal system, an embedded religious system.

Japan has one of the most advanced economies in the world, yet with an astonishingly low level of law suits. We tend to think that law suits and other civil disputes are one of the oiling mechanisms of advanced economies.

Japan is advanced, yet also shamanic and tribal. Why there should be one advanced industrial society on earth which is totally different from every other -- even neighbouring China -- is the mystery behind AM's book, and the final thought in his lecture.