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Fri, Aug. 21st, 2009 12:43 pm
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.

104CommentReplyFlag


(Anonymous)
Fri, Aug. 21st, 2009 11:21 am (UTC)

One way in which the U.S. and Japan line up in opposition to the Europeans: the death penalty.

Instead of 12 individual humans who make a decision, Japan has the judge sitting with some lay people, being guided by him.

Surely not so wildly different. British judges often instruct juries as to what they can and cannot decide.


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(Anonymous)
Fri, Aug. 21st, 2009 11:29 am (UTC)

And don't forget magistrates' courts in England & Wales.


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rinusvanalebeek
rinusvanalebeek
rinusvanalebeek
Fri, Aug. 21st, 2009 11:39 am (UTC)
don't

is the mystery behind AM's book,

too bad it didn't link to ..ehr..


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(Anonymous)
Fri, Aug. 21st, 2009 12:23 pm (UTC)
confidence

When you talk about the frilly, feely sociological aspects of Japan, no one can really fault you. It's an opinion game.

But here, you're out of you league -- and potentially, your head.

There certainly are facets of the Japanese legal system that seem to work, but they work because of the decreased burden on the system by the reduced crime rates and general community initiative.

The system generally fails to defend and protect victims of crime. The police leak every piece of information worth a red cent on the market (see the current Noriko Sakai story and it's guaranteed instant leaks). The Yakuza kill people and bring people to Japan as "white slaves" and the cops take bribes and look the other way (when they aren't disempowered by law or fear). Murderers stay on the lam easily for their entire lives. For every story of a frivolous lawsuit banished, there's the story of a child killed by corporate negligence and it's complete failure to come to court due to underdeveloped tort law. Wrongful death settlements typically cover the funeral costs and not much more.

And on and on.

I love this country, and I'm glad that I haven't had to deal with the legal system. Low crime is not a sign of a good legal system anymore than good sales are a sign of good music.


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imomus
imomus
imomus
Fri, Aug. 21st, 2009 01:00 pm (UTC)
Re: confidence

But here, you're out of you league -- and potentially, your head.

Is the "you" here addressed to me, or to Alan Macfarlane, Emeritus Professor of Anthropological Science and a Life Fellow of King's College, Cambridge? Presumably it's Professor Macfarlane, since today's entry consists entirely of notes from his lecture. Your rebuttal is -- you admit -- based on your lack of personal experience of the Japanese legal system, plus a reading, it seems, of the more sensational crime stories in the papers. There is a difference between journalism and anthropology.


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(Anonymous)
Fri, Aug. 21st, 2009 01:06 pm (UTC)
Difference

I like the idea that out there there is a different way of thinking and doing things. Unfortunately sometimes it involves aspects that are somewhat discouraging, if not scary.

There is for instance what happened to this acquaintance of mine in Japan. Some guy touched her under the skirt in the metro and so she naturally yelled at him all the negative adjectives she could think of. The man completely ignored her but then when she was about to get off he came to her and slapped her, telling her she won't embarrass him again in front of other people.

For sure these cases might not be the majority, but again, this is really not the kind of difference I would like to deal with.


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(Anonymous)
Fri, Aug. 21st, 2009 01:15 pm (UTC)
Re: Difference

This is simply a question of cultural misunderstanding. In Japan, it's simply not done to yell and abuse someone just because he's felt you up in the metro. That's considered the height of rudeness. You're supposed to just act like nothing's happened and then get off at the next stop.


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(Anonymous)
Fri, Aug. 21st, 2009 01:19 pm (UTC)
Danish law

The Japanese layman system is inspired by the Danish system among others. There has been loads of judges here to study the Danish system in recent years. From what I understand the Japanese system is not that different from ours. The judge also guides the laymen here.


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count_vronsky
count_vronsky
Fri, Aug. 21st, 2009 01:31 pm (UTC)


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(Anonymous)
Fri, Aug. 21st, 2009 01:32 pm (UTC)

I was thinking about this yesterday. Crime and social disharmony are caused by an underdeveloped sense of empathy. If you can step back and put yourself in someone else's shoes, then you aren't going to rob them, you aren't going to murder them, you aren't going to tailgate them if they drive slower on the highway.

There's no question that a culture that puts such a high value on individualism would have a deficit of empathy.

Race is a bit of a roadblock in America and Europe, but multiculturalism, more so. It's harder to empathize with people who not only don't share your culture, but might be antagonistic to it.


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imomus
imomus
imomus
Fri, Aug. 21st, 2009 01:54 pm (UTC)

It's harder to empathize with people who not only don't share your culture, but might be antagonistic to it.

Unless you're me, in which case you adore people who don't share your culture!


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imomus
imomus
imomus
Fri, Aug. 21st, 2009 02:50 pm (UTC)

In between Marxy's tips on pant-hunting bargains and his proud claim to have authored half the essays in a magazine given away with a pair of sneakers, the Neojaponisme Twitter feed weighs in (that really doesn't sound right when applied to a Twitter feed, does it?) against Professor Macfarlane, calling his views "naive".


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(Anonymous)
Fri, Aug. 21st, 2009 03:10 pm (UTC)

Interviews, not essays. I strategically try to interview as many Japanese artists as possible so that you have to start disliking them out of kneejerk. And you know what, yes, I admit it: I buy pants. If that makes you stop buying and wearing pants, I can compromise and start calling them "slacks."

Macfarlane is probably a nice guy or whatever, but he is far from what anyone would consider a "Japan scholar." He may be distinguished in wider fields, but nothing about his background or bibliography suggests that he has spent much time researching Japan, is widely read about Japan, or even is aware of the obvious counterpoints to his very simplistic renderings of these issues. If he really believes that the yakuza have no guns, he should have read, I don't know, a single book about the yakuza or read a newspaper about Japan. In the actual field of Japan Studies, the reductive "group harmony" vs. "individualism" binary has been debunked, defused, or at least highly qualified for twenty years if not longer. Glad you found the guy who has been living under a rock.

Also stop cherry-picking Japanese social organization. You gush about "harmony" but we never get to hear how great vertical hierarchy is. You love vertical hierarchy, right? Seems very Momus to be in love with obedience to higher authority out of a sense of duty.

Marxy


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(Anonymous)
Fri, Aug. 21st, 2009 03:42 pm (UTC)

Is it telling that one thing Macfarlane and Momus have in common is that neither is able to speak or read Japanese? Would it be acceptable for an academic to set himself up as an expert on, say, France, without speaking a word of French?


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imomus
imomus
imomus
Fri, Aug. 21st, 2009 04:09 pm (UTC)

I don't know about Prof Macfarlane, but I would be dishonest if I told you I spoke no Japanese. Full disclosure requires that I tell you that I speak some, and that I'm actually having a conversation in Japanese with Kyoka as I type this. However, I find that avoiding arrogance about my Japanese skill leads me to ask questions of people who not only speak Japanese, but were born and brought up in Japan. They put me right, and help me to bring things like the Majo Saiban TV series and Koki Mitani's plays to your attention.

(Bows deeply, returns to collectivity.)


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(Anonymous)
Fri, Aug. 21st, 2009 05:39 pm (UTC)

I'm shocked that such an inaccurate portrayal of the yakuza was given to the students of one of Britain's top universities. Professor Macfarlane's understanding of Japanese crime and punishment also has a number of terrible misconceptions which have no place in higher education.

I think it is fair to say that Japan has a low incidence of crime. That is certainly true when compared with America but, as is often the case, the United States is the global outlier so better comparisons would be with other developed nations. Even so, Japan has a better record and it is one that is worth explaining. I have no time for those who would seek to say that Japan is somehow really just the same as the west because it evidently isn't. That makes it all the worse that the professor has ended up describing a system and society that simply doesn't exist.



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imomus
imomus
imomus
Fri, Aug. 21st, 2009 05:52 pm (UTC)

So you're not too convinced by the "keep distant the hell of accusation" theme? That the Japanese litigate far, far less than other advanced societies (the Prof's main theme here)? Is this "a system and society that simply doesn't exist"?


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(Anonymous)
Fri, Aug. 21st, 2009 06:06 pm (UTC)
UN notes continued gender inequalities in Japan

http://news.bbc.co.uk/2/hi/asia-pacific/8213493.stm

love the one about light sentences for rape of women and how women must wait 6 months before remarrying, unlike men.


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margokennedy
margokennedy
emotional communist
Fri, Aug. 21st, 2009 07:46 pm (UTC)
Re: UN notes continued gender inequalities in Japan

in the uk the sentences are also very light and the conviction rates for rapists are also incredibly low (only 6.5%, and most won't see jail time.) i know the u.s. has similar statistics. it's inexcusable in japan or any other country, but to act like this is a problem solely of the japanese legal system is false.


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(Anonymous)
Fri, Aug. 21st, 2009 06:18 pm (UTC)

You posted this above:

"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."

Don't you realize the Japanese approach to you're paraphrasing or describing ... is also present in the common law? I won't fault you for not knowing, but you're basically describing how Americans learn law in their first year of school. "Reasonable person" doctrine, the fact that most lawsuits don't go to trial and end in negotiations meant to harmonize aggrieved parties, etc. It's more complex than that, but you'd be happy to find those "Japanese" concepts very much present in Western legal education.

Of course in the US lawyers are seen as amoral mercenaries (particularly for treating evil nasty criminals as living, breathing members of society), so law itself is rather divergent from US cultural values.


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imomus
imomus
imomus
Fri, Aug. 21st, 2009 08:01 pm (UTC)

People really need to watch the lecture itself: scroll forward to 36.36 to hear Alan Macfarlane's own description of the "two systems of justice". Both are present in other parts of the world (he calls the second one Rohanon or Tip, I couldn't quite make out the word), but Japan inclines very much towards the second. (This discussion doesn't seem to be in Macfarlane's lecture notes.) Macfarlane, as an anthropologist, thinks of Japan's legal system as a "tribal" one.


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bennycornelius
bennycornelius
Fri, Aug. 21st, 2009 07:19 pm (UTC)

I was taught by Alan a couple of years ago, as I mentioned a while back (http://imomus.livejournal.com/408877.html?page=2). I'm so pleased you've posted this up here, as he's a fascinating character whose insights are nearly always worth hearing. I love his readiness to engage with and write on almost any subject - a true polymath. I'd definitely recommend his website to anyone ... one can spend hours watching the interviews and reading the essays that are up there. It's a great resource, and one sadly all too uncommon (I've met academics half Alan's age whose only association with the internet is a barely checked university email address).


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imomus
imomus
imomus
Fri, Aug. 21st, 2009 08:03 pm (UTC)

Ah yes, I knew I'd met Mr Macfarlane somewhere before! You introduced us!


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loveishappiness
loveishappiness
O.H.
Fri, Aug. 21st, 2009 08:32 pm (UTC)
SCANDAL!


Japanese McDonald's Makes Fun of White People


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(Anonymous)
Sat, Aug. 22nd, 2009 12:11 am (UTC)
Re: SCANDAL!

But this looks like most every other Japanese man who goes to McDonald's as well---stupid comb-over haircut, glasses, bad clothes, etc. Interesting.


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(Anonymous)
Fri, Aug. 21st, 2009 10:19 pm (UTC)

I don't know enough to comment one way or another--I typically just read Mutantfrog to get this topic covered by Japan Hands, but you may wish to look into this: http://www.washington.edu/uwpress/search/books/FOOLAC.html - Law in Japan: A Turning Point, by Daniel H. Foote. I read the introduction and first chapter and remember being very impressed at how well-researched and accessible it seemed. Even though I can't remember anything else about it. ^_^


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(Anonymous)
Fri, Aug. 21st, 2009 10:46 pm (UTC)

It is a good book. Mind you, if ever Momus was able to come to terms with the fact that Professor Macfarlane was talking a lot of rot - which doesn't appear imminent - then he'd find more solace in the arguments of David Ted Johnson than those of Professor Foote. Johnson takes official statistics at face value so he paints a rosier picture than Foote and co. but, unlike Macfarlane, he has at least gone to the right sources and understands what the data he finds is supposed to show.


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