John O. Haley

Is Japan really changing its ways? : regulatory reform and the Japanese economy

Deregulation has been at the top of Japans economic policy agenda for many years. Now, in the midst of a financial crisis that engulfs all of Asia, pressures on the Japanese government for substantial reform - coming from both inside and outside forces - are stronger than ever. But is Japan actually making the changes necessary to reduce market controls, encourage competition, and create new opportunities for imports? To most outside observers, regulatory reform in Japan is an incomprehensible blur of grandiose proposals and byzantine political maneuvering, which masks developments that could be of tremendous significance to the world at large. In this book, experts from the United States and Japan cut through the fog that surrounds Japanese regulatory reform. They review the characteristics of Japanese regulation and analyze the content of regulatory reforms proposed to date as well as the political dynamics that shaped them. The book also examines the nuts-and-bolts issues of reforms in major economic sectors and the implications of deregulation for access to Japanese markets for foreign imports. By focusing on both the larger political, economic, and strategic contexts and on the way in which the micro and macro aspects of regulatory reform are interconnected, this volume makes comprehensible the tidal wave of proposals and posturing coming out of Japan. In addition to the editors, the contributors are Miyajima Hideaki, Elizabeth Norville, Kosuke Oyama, and Yul Sohn. Lonny E. Carlile is an assistant professor of Japanese Studies in the Center for Japanese Studies/Department of Asian Studies at the University of Hawaii at Manoa. Mark C. Tilton is an associate professor in the Department of Political Science at Purdue University.

Apology and Pardon Learning From Japan

The author seeks to investigate particular elements of Japanese culture that may have contributed to the countrys success in reducing crime rates since World War II. In particular, he argues that the fundamental importance of apology and pardon helps to explain this phenomenon. But despite the apparently unique role of apology and repentance in Japanese culture, the author argues that these concepts, although perhaps more readily evident in Japan, are also present to a degree in American communities. He believes that through a consideration of Japan, the United States can learn to incorporate these ideas into American criminal justice. Finally, the author points out the preliminary success of experimental programs in the United States that seek to incorporate the ideas of apology and pardon.

The Politics of Informal Justice: The Japanese Experience, 1922–1942

Publisher Summary This chapter focuses on the politics of informal justice in Japan. At the end of World War I, Japan had concluded nearly three decades of experience with its Western-derived legal system. The institutional framework had been completed with the promulgation of the Meiji Constitution in 1889 and the enactment of the Court Organization Law and Administrative Court Law in 1890. By 1898 the long process of drafting and legislating a comprehensive set of substantive and procedural codes had all ended with the adoption of the last two books of the Civil Code on relatives and succession. Japan had a well-trained career judiciary and procuracy, and a rapidly growing practicing bar. Law faculties, especially that of the Tokyo Imperial University, had become Japans most prestigious educational establishments. Therefore, Japans leaders could justifiably boast of success in adopting a new Western-based legal system. The chapter further discusses conclusion in regard to Japans prewar experience. Japans prewar experience points to one conclusion that most litigants or practicing lawyers recognize as a matter of common sense. Litigation is primarily a means to enforce legal rights, not to resolve conflicts. People usually sue to compel others to meet legal obligations that they have refused to acknowledge or fulfill. In this respect, the critical characteristic of the legal order is the effectiveness of its sanctions and other means of coercion.

Rivers and Rice: What Lawyers and Legal Historians Should Know about Medieval Japan

A story of rivers in Europe and rice in Japan, the combination of the need of warrior rulers for political legitimacy (authority) coupled with a diffusion of their capacity to coerce (power) is argued here to explain the use of adjudication as a primary means for enforcing legal rules and maintaining order in both early medieval Europe and Japan. Explained in the process is the tendency in western Europe for the regulation of otherwise private relationships and behavior particularly within local communities to be absorbed into formal legal regulation in contrast to the Japanese experience of extralegal internal community controls that arguably produced a pervasive duality of legal and extralegal ordering.

Measuring Judicial Independence: The Political Economy of Judging in Japan (review)

1. J. Mark Ramseyer and Frances McCall Rosenbluth, Japan’s Political Marketplace (Cambridge, Mass.: Harvard University Press, 1993), pp. 2, 3. Lockheed) scandal (p. 231), hardly ones to inspire confidence in his grasp of details. In the end, the book remains enigmatic. I am still uncertain about the nature of and empirical evidence for a “total employment strategy.” Nor do I understand his mantra, why the “release of market forces” undermined the “expansion of trade and production” rather than enhancing incomes and employment. For economists, the real release of market forces stemmed not from the complete legal liberalization of capital flows in 1980, which had in any case been freed in practice by the late 1970s. Instead, the turning point was April 1949, when Joseph Dodge was sent to Tokyo to dismantle the worst excesses of the dirigiste economic policies of the Supreme Command of the Allied Powers (SCAP). The ensuing reforms, both domestic and (less important) international, led not to stagnation but to the incredible expansion of trade and production of the 1950s and 1960s. The release of market forces brought “full” employment and rising incomes, not crisis and stagnation. Such growth faces diminishing returns and inevitably slows. Losers then have more reason to fight than to move on, leading to the strangling of forces so visible in Japan today. That is also ultimately Gao’s conclusion. While independent of the book’s arguments, his last chapter is full of common sense. The last three paragraphs in particular note that ongoing (and in his opinion piecemeal) reforms add to uncertainty, hampering both consumption and investment and hence growth. This is reinforced by Prime Minister Koizumi Jun’ichirō’s concern to limit government expenditures. Gao thus sees further stagnation, which is also my expectation.

WAGING WAR: JAPAN’S CONSTITUTIONAL CONSTRAINTS

Article 9 of Japan’s postwar constitution subjects the nation to stringently worded constraints on its legal capacity to wage war. Although not the only constitution to include a renunciation of war, 1 Japan’s postwar constitution is unique in its prohibition of military forces that make war possible. 2

The Triumph (?) of Western Law: A Contemporary Perspective

For nearly a millennium, private law was primary in the West. By the mid-twentieth century, Western private law had become virtually universal—an apparent triumph of Western influence. By then, however, regulatory and criminal law, core features of law in the world’s largest and oldest nation-state—China—had replaced private law at least in the volume of rules and cases. Has Western law triumphed after all? Or has, instead, the world of law in the twenty-first century more appropriately viewed as the ultimate “triumph” of the world’s oldest and most enduring legal tradition? If so, perhaps, the West has something to learn from the East, particularly the success of the contemporary Japanese criminal justice system in its avoidance incarceration and other retributive sanctions by distinguishing condemnation of the crime with correction and reintegration of the criminal.

The Tokyo International Military Tribunal: A Reappraisal, and: The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (review)

History has not been kind to the Tokyo War Crimes Trial—the criminal prosecution of Japanese wartime leaders by the International Military Tribunal for the Far East from April 29, 1946, through November 12, 1948. Mimicking the Nuremberg indictments, the Tokyo Tribunal charged the 25 defendants with having committed crimes against peace, conventional war crimes, and crimes against humanity. All were convicted, all but one of at least one count of criminally waging war. The one, General Matsui Iwane, commander in chief of military forces in central China, 1937–38, was found guilty solely of failing to secure observance and prevention of violations of the law of war. Seven, including Matsui, were sentenced to death and were hung on the day before Christmas Eve, 1948. Overshadowed before and after by the proceedings at Nuremberg, the Tokyo Trial has been largely ignored outside Japan. A complete mimeographed transcript of the proceedings was distributed to a half dozen libraries, but neither the proceedings nor even the judgments were offi cially published. Not until three decades later did a full documentary account with all of the opinions become available in print—published in Am-

Economic Organizations and Corporate Governance in Japan: The Impact of Formal and Informal Rules (review)

Economic Organizations and Corporate Governance in Japan comprises seven case studies by two leading American scholars of Japanese law. The topics include shareholder derivative suits, venture capital, the “jūsen problem,” sokaiya, organized crime, and an analysis of elite law career preferences as lawyers or as bureaucrats. Each is based on articles authored by one or the other or both during the last decade. Each chapter individually and the book as a whole offer informative and insightful perspectives on Japanese economic organizations and governance. The authors unquestionably achieve their principal aim in describing tensions, pressures for change, and failures of formal and informal institutional arrangements. Although their definition of “informal rules” to include norms, practices, and shared beliefs may bother readers who prefer analytical clarity, the resulting breadth of their inquiry enables them to connect each chapter more effectively and thereby produce a more coherent composite. Underlying each chapter is a remarkably orthodox view of Japanese governance. On the one hand, the authors add fresh support for what were once considered “revisionist” claims. In the first chapter they explore the dramatic increase in shareholder derivative suits following the 1993 reduction of filing fees and the structure of institutional incentives and disincentives for such actions, echoing arguments made here in 1978.1 Similar echoes are heard in chapters five and six on sokaiya and organized crime as they explain the prevalence and role of organized crime in Japan in terms of weak law enforcement, especially with respect to disclosure rules and the enforcement of property rights.2 They also offer new support for prior arguments about the interrelationships between law and social practices and broader issues of governance. They conclude that the increase in shareholder derivative suits added little if any shareholder value, confirming the classic 1953 critique by Thomas Blakemore and Makoto Yazawa of the occupation-era commercial code revisions.3 With respect to the continued role Review Section 235

The revival of german scholarship on japanese law

Until World War II German scholars led the West in scholarship on Japanese law. With the exception of Joseph E. de Becker, the English-born lawyer whose prodigious contributions have seldom been replicated even among Japanese jurists, only a handful of lawyers in the English-speaking world displayed interest in the Japanese legal system. (Wigmore, Gubbins, Sebald, Blakemore, Sherman and Carkeek nearly exhaust the list of Americans.) The flow of literature in the United States on Japanese law began, for instance, with the Allied occupation and did not reach its present volume until the mid 1960s (surpassing perhaps that on any country other than the United Kingdom). Unfortunately this expansion of Japanese legal studies in the United States paralleled a long hiatus in German research. A few in Germany-notably Wilhelm Rohl-kept the spark alive, but rare was the publication of any significant work in German except those authored by Japanese scholars (or an occasional Korean or Chinese) studying in Germany or writing from Japan. Even so, the quality of what scholarship was published remained high. Rohls introductory studies of the reception of Western law in Japan, Fremde Einflisse im modernen japanischen Recht (Metzner, Frankfurt a.M., 1959) and of the postwar Constitution, Die japanische Verfassung (Metzner, Frankfurt a.M., 1963), are still valuable references. Equally important are the contributions on Japanese family law by Friedrich Tappe, a Jesuit scholar at Sophia University in Tokyo-for example, his Soziologie der japanischen Familie: Grundauschauungen, Ethik und Recht des japanischen Familiensystems (Mtnster, 1955). More reflective of the dearth of German research during the postwar period is the fact that between 1940 and 1970 almost no German doctoral dissertations were written on Japanese law and few, if any, of the exceptions were by German students. See, for example, Shen-Chang Hwangs, Das japanische Antimonopolgesetz im Lichte des deutschen Kartellrechts (Heidelberg, 1968) and Sung Bae Kims, Die Behandlung asozialen und strafftlligen Jugendlichen im japanischen Jugendrecht (Cologne, 1967). Since 1970, however, there has been a remarkable revival of Ger-