Thursday, July 01, 2010

Neo-Confucian Legal Principles in Japan?

Colin P.A. Jones, "No need to know the law, but you must obey it," The Japan Times Online (June 29, 2010):

[T]he ... question "Is x a crime?" reflects a fairly Western view of the law as a well-defined set of rules, the parameters of which people can know in advance in order to conduct themselves accordingly. However, there is a Confucian saying that is sometimes interpreted as "The people do not need to know the law, but they should be made to obey it." This adage was a watchword of the Tokugawa Shogunate, whose philosophy of government was based in part on neo-Confucian principles.

It is also a saying that could provide some insights into why it sometimes seems difficult to get a clear answer about what exactly the law is in modern Japan. I am not suggesting that Japanese police and prosecutors have Confucian platitudes hanging framed over their desks, but knowing the law is a source of power. Being able to say what the law means is an even greater one, particularly if you can do so without being challenged. In a way, clearly defined criminal laws bind authority as much as they bind the people, by limiting the situations in which authorities can act. Since law enforcement in Japan often seems directed primarily at "keeping the peace," laws that are flexible are more likely to serve this goal.

For example, on the subject of abduction of a minor, Article 224 of Japan's Penal Code says simply that: "A person who kidnaps a minor by force or enticement shall be punished by imprisonment with work for not less than 3 months but not more than 7 years." Article 226, a human trafficking statute that has been used to convict foreigners for abducting their own children, just says: "A person who kidnaps another by force or enticement for the purpose of transporting another from one country to another country shall be punished by imprisonment with work for a definite term of not less than 2 years."

Since neither of these is very specific, an American lawyer would probably try to learn how the terms "kidnap," "force" and "enticement" had been interpreted in prior cases. However, in Japan there is a significant hurdle to doing so: Except for those cases published in official court reporter volumes or otherwise circulated, the judgments and other records of criminal cases are by law a type of state secret, maintained by the prosecutors (not the courts!) and unavailable to the public. "Protection of privacy" is the given reason, but it also has the effect of making it very difficult for scholars or other legal system outsiders to understand the criminal law with greater specificity.

[snip, snip]

Japan, like other countries, has any number of laws that are unknown, unenforced or otherwise subverted. ...

The authorities and the people alike can probably live with this state of affairs if it preserves some sort of order. Yet it creates an environment in which people may habitually engage in behavior they think is perfectly normal (because everyone else is doing it) but which is actually a crime, for which they can be arrested and prosecuted if the authorities need a reason to do so.

Ever had a beer then hopped on your bicycle? You are drunk driving — a criminal offense. ... What is a fair interpretation of the law is irrelevant once the issue becomes one of you vs. authority, because authority must win.

Foreign visitors to Japan often comment on how polite the Japanese people are, but little do they know that it is actually against the law to be rude. Under Article 231 of the Penal Code it is a crime to "insult another person in public." It would be tempting to dismiss this as a quaint remnant of the Code's Meiji roots (it was enacted in 1907 and written in classical Japanese until 1995). However, several years ago a man was arrested for calling a woman "fat" in a bar. He was also detained for 29 days for this infraction. ...

Examples of seemingly strained applications of criminal statutes abound. There is the man who was prosecuted for "dangerous driving resulting in death" when two high school cyclists plowed into his illegally parked, unoccupied car; .... Another man was arrested for trademark infringement for creating a T-shirt design featuring a man holding a gun to a silhouette of the National Police Agency mascot. ...

A common theme in most of the above cases is that police or prosecutors may have had an institutional reason for wanting to make an arrest. The man prosecuted for dangerously driving a car he was not even in had parked in an area where the police had been making a show of enforcing parking regulations. The man arrested for calling someone "fat" was a local politician, so who knows what issues he might have had with the local constabulary. ...

[snip, snip]

That law enforcement officials use the law to their own advantage — interpreted creatively if necessary — is hardly unique to Japan. Where Japan may differ from other countries, however, is that the legal system seems to lack institutions that act as a significant check on such usage. In the United States, for example, federal prosecutors have to convince a grand jury before they can indict anybody. The trial jury system in the United States and other common-law countries provides another opportunity for the citizenry to reject an unreasonable application of the law, or even an unreasonable law itself. In contrast, Japan's prosecutorial review commissions only work in one direction — they cannot stop a prosecution. As for the country's new lay judge system, almost none of the cases discussed above would be serious enough to be eligible for trial by lay judges.

As for the courts themselves, Japan's famously high conviction rate — above 99 percent — is derived in part from judges ratifying virtually all prosecutorial decisions. Almost all of the cases discussed above resulted in guilty verdicts, at least at the initial trial. The insult conviction was ratified by the Supreme Court in 2006. ...

[snip, snip]

While it easy to be critical, other countries arguably have something to learn from Japan's approach to law enforcement and its famously low rate of reported crime. One factor in this equation may be the respect the people have for the authorities that wield the law, as opposed to the black letter of the law itself. At the same time, however, according to Montesquieu, "liberty is the right to do what the law permits." What does it mean, then, when what the law permits — whether it is taking your own children somewhere, rudeness or anything else — is unclear?


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Sunday, June 27, 2010

Professor David Sklansky on the Confrontation Clause

In an interesting but excessively long article, "Hearsay's Last Hurrah," 2009 Supreme Court Review 1, Professor David Sklansky makes the important point that the decoupling of hearsay law and the Confrontation Right by Crawford v. Washington, 541 U.S. 36 (2004), has impeded or threatens to impede the development of an interpretation of the Confrontation Clause as a guarantee of the right of a criminal defendant to challenge adverse evidence. I agree.

But I am not so sure that the hearsay rule deserves all the scorn that Professor Sklansky heaps upon it. I keep thinking of prisoners in Guantanamo who may be held there on the strength of an absent U.S. soldier's statement that some village elder in Afghanistan told the soldier, through an absent interpreter, that some member of the village had brought the detainee, a goatherd, to the elder after the village member heard, he said, the goatherd say, "I have killed Americans in this holy war." Confrontation aside, is there reason to think that such evidence is likely to be so unreliable that not even a military commission should consider it?

But to give Sklansky his due, he does seem to think that a hearsay rule that works largely as a rule of preference makes some sense. But suppose the village elder, the translator, the member of the village, and the goatherd are now all dead -- as a result of the war in Afghanistan.
But perhaps Sklansky would approach the goatherd problem by analyzing whether the Guantanamo detainee has an adequate opportunity to challenge the evidence against him. I'm not sure how Sklansky would attack the goatherd problem. Perhaps I will re-read the article in an attempt to find out. (I only skimmed his article and perhaps he addresses my question.)


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.