Making it Their Own

Introduction

Since the late 1990s, Japan’s criminal justice system has been undergoing a period of reform as intensive as there has been since the US Occupation ended in the 1950s. For some, this has been a ‘turning point’, with Daniel Foote in particular arguing (Foote, 2007) that the changes taking place at the turn of the century in Japanese law in general are as sweeping and fundamental as those which the illustrious Harvard professor Arthur Taylor von Mehren documented in his classic 1963 edited volume Law in Japan: The Legal Order in a Changing Society (Mehren, 1963), and David Johnson adding that “social changes like the ones that transformed the US crime control arrangements are now shaping the administration of Japanese criminal justice—in ways that are both difficult to discern and, in direction if not intensity, surprisingly familiar” (Johnson, 2007: 368). Amongst the most obvious alterations to have been made during this period is the 2009 introduction of a lay judge system, reminiscent of that used in Germany (and of which both Foote and Johnson note), and also the move to increase transparency of interrogations, introduce plea bargaining, and extend the use of wire-tapping, all of which are common in US criminal justice.

With the borrowing of such fundamental aspects of other criminal justice cultures, one might naturally be led to ask to what extent will there be an impact on Japan’s famed uniqueness in this area. Indeed, the remarkable outcomes Japan’s criminal justice system produces, including its notably high crime clearance and conviction rates, have long provided scholars and practitioners with food for thought. Is it the case that the continued import of ideas from elsewhere will mean a watering down of the system and an end to this debate?

In this article, I argue that the lessons of history suggest not. Indeed, it is well-known how in criminal justice, like so many aspects of Japanese society, the systems of Western Europe were drawn heavily upon during the Meiji era. Moreover, the US had a major influence during their post-war stay. Nonetheless, when one examines how these events unfolded more closely, one can see quite how skillfully the Japanese authorities negotiated these periods of dramatic change, taking what they saw as beneficial to their particular ends, but combining this with elements of their own. The postwar system that was thus developed was far from being simply a mish-mash of second-hand ideas; rather these familiar aspects merely served to underline the unique way in which it had been moulded. So, even though the modern day reforms might bring about an evolution, or perhaps more radical changes, and give the criminal justice system of Japan yet more ingredients from overseas, it would be misguided to expect it to lose its distinctly Japanese flavour.

The article proceeds first to introduce the pressures on the Meiji oligarchs to break with the past in terms of criminal justice practices and framework. It then reviews the attempts to modernise the system while resurrecting an older, Japanese legal order, followed by a process of selective borrowing and adaptation from a number of European statutes, with the goal gradually becoming, as historian Daniel Botsman has argued (Botsman, 2005), to fashion out a cutting-edge penal and criminal justice framework so that Japan can play its own politics of civilisation in Asia. The article’s overview then extends to the period of the Allied Occupation, when the Japanese jurists collaborating with General Douglas MacArthur’s advisers on the issue of revising the country’s criminal justice succeeded in resisting the imposition of Anglo-American practices without recourse to the indigenous experiences and traditions. From the analysis of these historical developments, the article draws its principal conclusion, namely that the legal innovations implemented in Japan during this prolonged period of foreign borrowing were always managed by the Japanese decision-makers. Moreover, to bring the discussion back to its starting point, the article finishes with some brief speculation about how this observation provides context for the current day criminal justice reforms, and their eventual destination.

The Impetus for Change

After defeating Shogun Yoshinobu Tokugawa in 1868, the newly empowered Satsuma and Chōshu oligarchy was not slow to recognise the need to build an institutional infrastructure that would serve not only the purpose of sustaining their fledgling centralised government, but also place Japan on an equal footing with the Western powers, so that it would be able to throw off the yoke inherited from their predecessors in the form of humiliating extraterritorial treaties and unfavourable tariff arrangements.

Before the Meiji Restoration, there existed no uniform set of policies for dealing with crime and criminals available to the people. Although an administrative manual akin to a modern-day set of bureaucratic rules was formulated in 1742 by the Shogunate,1 it did not represent a set of rules in the sense of a promulgated law or code, as its publication was prohibited and issues were available for consultation only to the top magistrates of the three most important courts. Penal policies generally depended on local custom, with different daimyōhaving the freedom to administer justice within their autonomous domains as they saw fit. In the name of strengthening the nation, the young regime demanded that the daimyōrelinquish the control over their domains to the central government, and started to make moves to create standardised regulations for the whole of Japan. Amongst the various codification projects that were undertaken, the one regarding criminal law and procedure was considered particularly pressing, for, in order to achieve their coveted re-negotiation of the unfavourable treaties, the establishment had to demonstrate that foreigners who have committed crimes in Japan would be tried and punished according to a no less civilised standard to that of Western nations. Consequently, the reform of the criminal and penal systems became an urgent and all-important undertaking on which the Meiji rulers would spare no effort.

Going Forward by Looking Backwards

Whilst there was pressure that the new laws of Japan be modern, the Meiji leaders wanted them to be representative of indigenous Japanese traits as well. Having to revise Japanese law to accord with Western demands was regarded as an affront to Japan’s national dignity and independence. Furthermore, the Meiji leadership was deeply influenced by the idea of restoring the ancient system of imperial rule in Japan, and was therefore inclined to resurrect older legal practices—namely the so-called ritsuryōsystem of the Nara period (694-710), which had been fashioned on the T’ang Dynasty model and which emphasised popular morality and the cultivation of ideal “Confucian citizens.” Together with the accompanying kyakushikiamendments, which were continuously edited as social conditions changed, this code was meant to regulate all the important state affairs.

As far as criminal offenses and punishments are concerned, the intent of the Meiji codifiers to find the admissible balance between modernity and tradition is clearly discernable from the four efforts at codification made prior to the 1880 Penal Code (Keiho): the 1868 Provisional Criminal Code (Kari Keiritsu), the 1871 Essence of the New Code (Shinritsu Kōryō), the 1873 Statutes and Sub-statutes as Amended(Kaitei Ritsurei), and the 1874 Drafts of Statutes and Sub-statutes as Revised (Kōsei Ritsurei Kō). As Ch’en has argued, although more qualifications and additions traceable to the contemporary Western penal codes coloured each successive code, they all retained a significant local foundation (Ch’en, 1981). In fact, the second of this series of penal codes—the Shinritsu Kōryō—has even been characterised as the apogee of Japan’s efforts to imitate the ancient legal system (ibid.), demonstrating the reluctance of the early Meiji regime to break with tradition.

Similarly, with regard to criminal procedure, the Meiji elite experimented with revival-style modernisation, hoping each time that their latest steps would be modern enough to secure the desired unequal-treaty renegotiation whilst building upon Japan’s heritage. In response to concerns from Westerners that in the Tokugawa procedural system, which they had essentially retained in their first piecemeal attempt at codification in 1870, no separation existed of the judiciary from the prosecution and the investigation,2 the idea of a court of justice was introduced, with the term saibanshoused to designate a special office responsible for the execution of justice (ref. the 1872 Criminal Court Regulations). Along with this, the authorities created a new civilian police and also sought to revive the Imperial Prosecuting and Investigating Office (danjōdai) of the Heian period (795-1185) by establishing the role of a procurator (yoshin hanji). These steps too were soon revealed to be insufficient, with criticisms arising that the procurator’s job description included supervising the judicial police to ensure that their investigations were properly done and checking/overseeing on the fairness of the courts. Despite the procurator’s position being slightly weakened by the 1874 Revised Regulations for the Organisation of the Justice Ministry by the elimination of the procurator’s duty to oversee the judge’s decision, procurators were still entitled to re-appeal when unhappy with the court’s decision.

This lack of sweeping changes in Japan’s criminal justice system was too conspicuous for the Western governments who did not even care to look at the early Meiji governments’ efforts at criminal legislation, and it was not long until it became clear to the Japanese elite that in order to facilitate a treaty revision they needed to embark upon a more radical restructuring of their codes. Moreover, students who had been dispatched to Europe and America to study the legal systems there in accordance with the Meiji Charter of Oaths were beginning to return to Japan, bringing with them Western legal ideas, and amongst these scholars there were those urging revisions along Western lines.3 In accordance with these views, as opposed to the piecemeal adoption of Western legal features within more traditional native laws, the government now started to take more seriously the drafting of a Western-based penal code in particular, and after the re-organisation of government at the 1875 Osaka Conference, whereby the Sain(Chamber of the Left)—one of the structural organs of the ritsuryōsystem which the oligarchy had tried to resurrect—was abolished, the work of compiling truly modern codes began in earnest, with the newly-created Gyōbushō(the antecedent of today’s Ministry of Justice, MOJ) taking responsibility for the drafting process and the Genrōin(Chamber of Elders) being tasked with reviewing the resulting drafts.

French-based Penal Code

To serve as a prototype for the new Japanese penal code the French Code Pénalof 1810 was chosen, arguably for practical reasons. In particular, the main alternative—British common law, which had grown organically over an extended period through court decisions—was too complicated and diffuse to be adopted when the call for abolishing the unequal treaties was so urgent. Even though there had been law developed through precedents in Tokugawa Japan, constructing a common legal system would have been difficult, given that these precedents represented not a unified system of laws, but only customary laws across different daimyōdomains (Noda, 1976). Although the Meiji oligarchs also investigated other European countries, nearly every country in Western and Central Europe had received a long-lasting influence from the Napoleonic Codes. In fact, it was not only Code Pénalthat enjoyed a high repute; the Napoleonic Codes in general were extremely influential, having been successfully transplanted into other European countries while these stood under French occupation during the Napoleonic Wars (including Holland—the sole country which had been in contact with Japan during the Tokugawa regime’s self-imposed isolation!). The fact that these countries had retained, albeit with some modifications, the Napoleonic Codes after regaining their independence had won them good reputation, and with this history of successful export in mind it is no wonder that the Japanese elite chose to borrow from France.

To expedite the work on the Japanese code, a decision was made to involve the French legal scholar Emile Gustave Boissonade de Fontarabie, who had hitherto been relied on merely as an instructor on Code Pénalin Japan. The 1876 ‘First Draft of the Penal Code of the Japanese Empire’ was compiled by about 10 Japanese jurists, but was, upon deliberation at the Genrōin, rejected for the reason that its sole section on General Rules made it “incomplete.” Although the Japanese jurists repeatedly amended individual articles of the version of the subsequent draft created by Boissonade in French on the basis of the lectures he had given, it was difficult for them to tamper with the basic framework of the learned professor’s draft without inadvertently creating any major contradictions that could jeopardise its enactment. Consequently, the penal code draft contained not only the most revolutionary provisions, as far as Japan was concerned, but also some of the latest legal innovations from the point of view of international law at the time.

The primary reason why Boissonade and the Japanese jurists’ draft code is considered epoch-making is the inclusion of two clauses embodying the principle of nullum crimen, nulla poena sine praevia lege poenali—the basic maxim in 19^thcentury Continental European legal thinking (Ishii, 1958). Conceived in an attempt to curb the power of judges in post-revolution France, who had often taken legislative rule in the past, this principle states that punishment cannot be meted out where crime, as defined by the law, does not exist. Punishment, according to this maxim, cannot be applied by ex post factolaw either; unless there exist both a legal provision declaring a certain act to be an offense and another stating the penalty to be imposed for the specific crime at the time when the supposed crime is being committed, there can be no punishment. Clarifying to the public what constitutes punishable conduct, which was regarded by the whole of Europe, with the exception of Britain, as fundamental to a civilised concept of justice, and the inclusion of these all-important clauses in the draft penal code exhibited a readiness on the part of Japan to break with the Confucian idea of government which saw the actual administration of criminal justice only as secondary to the duty of teaching the citizens how to behave morally correctly. This contractarian conception of a criminal act as a situation in which the wrongdoer, in full awareness of the fact that his breaking of the law would result in the state inflicting upon him pain equivalent to that which he had caused to his victim, meant that a significant effort was put towards enlisting the appropriate punishment for each crime so that the standard according to which punishments would be chosen was clear. The spirit of Code Pénal was further evident in the classification of criminal offenses in the threefold fashion of seriousness into crime,délitandcontravention, the establishment of equality before law4 and the introduction of the concept of personal guilt.5

The draft led by Boissonade was in several ways even more progressive than his native Code Pénal. It was, for example, more lenient in comparison to the French code, due to Boissonade’s critical view of what he considered an outdated idea that crime could be controlled by the threat of harsh punitive sanctions. The notion that punishment has a deterrence effect on crime was relied upon during the French Revolution when measures were sought to overcome the disorder characteristic of such a tumultuous period. However, as the social circumstances changed over the next half a century this idea had become increasingly criticised both in France and in elsewhere, and Boissonade was one of those who shared the skepticism that people could be kept away from crime by the threat of punishment (Ikeda, 1997). Perhaps the most significant manifestation in the penal code draft of this conviction of Boissonade’s is the fashioning of executions on the contemporary Italian model, whereby they would be conducted non-publicly.6 Other than this, the learned professor also insisted on the Japanese code making another departure from Code Pénalin drawing a distinction between ‘attempted’ and ‘committed’ crime, and reducing the punishments for the former cases like the Portuguese, Belgian and German penal codes did. No doubt, the incorporation of these latest European legal innovations in the Japanese draft would have been impossible had Boissonade not been so well-versed in comparative law.

Boissonade’s open-mindedness to new ideas and his view that the intrinsic legal culture of a nation should be recognised as far as possible made him tolerant of some inauspicious provisions insisted upon by the Japanese drafting committee (Pedlar, 1990), which eventually passed the critical inspection of the Western powers as well. Firstly, against his initial aspiration to elevate Japan above the other nations by omitting from the penal code provisions on crimes against the imperial household and treating these crimes as ordinary ones, Boissonade succumbed to the argument of Tsuruta Akira and others that, since an assassination of the emperor could throw Japan into chaos, such crimes should be incorporated into the section of crimes against the public interest.7 Boissonade clearly read into the Japanese committee’s decision to subordinate in the draft penal code the offenses against the emperor to those against the state (crimes of high treason). In reality, however, the rejection of the monarch’s absolute authority that is characteristic to the modern Western concept of republicanism, from the point of view of the Meiji authoritarians, who sought to use the name of the emperor to legitimise the particular state structure they favoured, the emperor was an inextricable, yet not the primary in importance, part of the state. The resulting entire chapter of the draft regulating for offenses against the imperial household expanded earlier provisions concerning publications about and photographs of the imperial household members to much more general and ambiguouslèse majestélaws, which would subsequently be used to authorise mass arrests as part of the policy of social management.

Secondly, the Japanese codifiers insisted that Boissonade included in the chapter of high treason offenses a section stipulating for offenses aimed at overthrowing the imperial household, which they argued were distinct from any of the ordinary offenses against members of the imperial household that were already covered. Whilst in absolutist monarchies in the West, where both the symbolic and the substantive power lay with the monarch himself, no need exists of distinguishing between the attempts on the life of the monarch and insurrection, in the case of Japan, since the emperor had two faces—one looking over his people, and another looking towards his government, the Meiji ruling elite contended that any attack on their regime could be considered a direct attack on the emperor himself. Appealing to the abhorrence of delisting precisely crimes against the emperor, this idea was expressed in vague language within the draft penal code, and would, when enacted as law, enable the oligarchs to quash opposition to their regime, such as the growing Freedom and Popular Rights’ Movement, as if it were aimed at overthrowing the imperial house.

In addition to these maneuverings based on arguments about Japan’s unique culture, during the translation of Boissonade’s drafts the codifiers were able further to adapt clauses to permit the elasticity of interpretation that they needed to suppress the popular rights movement developing at the time. When preparing his draft, Boissonade included in the section of ‘Crimes of Obstructing Official Duties’ an article regarding the ‘Crime of Refusing to Obey’. Although Boissanade treated such acts as insurrection, the definition he provided was heavily restricted, as perCode Pénal, to cases when this is an obstruction to a lawful procedure, such as arrest, entry for investigation, or execution of a writ for seizure (Röhl, 2005).To clarify, his proposed provision did not criminalise just any obstruction to the tasks performed by officials. Moreover, simply resisting did not constitute an offense in his draft; to receive treatment as an offense, major violence or threat needed to be applied. However, in the process of translation, Boissonade’s word ‘lawful’ with regards to the official duties was omitted, thereby obscuring the precise boundaries of the law. The word ‘serious’ with regards to the threat or violence of the civilian also disappeared, and it became possible that much less pronounced, even passive, resistance could be punished on the basis of the eventual provision.

MOJ’s resulting ‘Draft Penal Code of Japan’ undertook further amendment at the investigation bureau set up under the Dajōkan8 (The Council of State) in 1877 with the purpose of mediating between MOJ and Genrōinso that Japan’s penal code could be enacted without further delay. Even though the liberal flavour that Boissonade brought to Japan’s penal code draft was watered down by the Japanese codifiers, it was not changed fundamentally. Nonetheless, some amendments were made at the investigation bureau that could not be ignored. Specifically, once Boissonade’s involvement ended, the investigation bureau replaced almost all of the punishments previously prescribed with sterner ones that are more characteristic of the earlier ritsuryō-style penal codes. Perhaps the most noteworthy example is the substitution of ‘penal servitude for life’ with ‘capital punishment’ for the crime of insurrection. Although Boissonade had persevered at MOJ that such a political crime deserves less than the ultimate penalty, when the issue was re-examined by the investigation bureau the decision was made to follow the example set by earlier Japanese decrees prohibiting rebels’ gatherings and to prescribe the death penalty to ringleaders and riot instigators. Another noteworthy example of retrogressive amendment included the expansion of lèse majestéto cover insults targeted at the imperial grave as well as broader circle of imperial family members. Moreover, attempts to harm members of the imperial household were now to be treated in the same way as committed crimes against them—by capital punishment.

Undoubtedly, a two-year examination of the draft penal code at the bureau must have appeared unjustifiably prolonged for those in the government who thought that Japan’s first priority should be the abolition of the unequal treaties. However, once the draft was forwarded to the legislature in June 1879 it did not take long to pass it. No major changes were made at the Genrōin, which is not surprising, given that most of the members with progressive views had by this time resigned. The one issue, however, which became the subject of a bitter controversy, just as it had at all the previous stages of deliberation, was the status of mistresses. Given the customs of the time, and from the point of view of the need to secure an heir to the throne, the legal recognition of mistresses seemed practical. On the other hand, even the most sworn advocates of the status quodid not delude themselves that this custom, which was regarded by the Westerners as un-civilised and a violation to what they called a ‘universal’ natural right of freedom and equality, could be maintained if Japan were to make the case for treaty-revision. Although there was an overwhelming support for the recognition of mistresses, ultimately the pragmatic course was chosen whereby mistresses were denied legal status, but the position of illegitimate children was protected. Whilst this was a difficult compromise for the Genrōinto make, it was felt it was a necessary sacrifice. With this final tweak, the draft was passed in March 1880, becoming Japan’s first promulgated code. (To distinguish this penal code from the later, 1907 penal code, this code is customarily referred to as ‘The Old Penal Code’.)

Continental European-style Procedural Law

To accompany the substantive Penal Code, a procedural code containing regulations for the handling of criminal matters as well as the organisation and the jurisdiction of the criminal courts was to come into force upon the same day, 1 January 1882. The process leading to the inception of this Code of Criminal Instruction (Chizaihō) was in many respects similar to that of the Penal Code; after the initial piecemeal attempts to modernise existing Japanese policies that were made during the early 1870s, there was a subsequent wholesale adoption of a French-based law that reflected certain aspects of traditional Japanese criminal justice methods—in this case, the Code d’Instruction Criminelle, established by Napoleon in 1808.

Whilst the early work in developing a court system in Japan had been a solely Japanese endeavour, as with the penal code, anxious to create a law that would gain the West’s approval, in the second half of the 1870s the Japanese jurists began to work alongside Boissonade on a Code of Criminal Instruction draft along the French lines. Illustrating the seriousness with which the Japanese approached the issue of treaty abolition is the immediate action taken by Justice Minister Ōki Takatō upon receiving a petition in August 1875 from Boissonade, who had by chance witnessed an application of the abacus torture9 (soroban-zeme), expressing a call for an immediate cessation of torture. With Boissonade also submitting a report entitled Mémoire sur l’abolition de la tortureand arguing that there was no hope for treaty abolition without the elimination of torture, proposition was promptly made to the Genrōinaccordingly (Ikeda, 1997). Although the latter did not completely concede to the Frenchman’s demand, they agreed to revise Article 318 of the Amended Criminal Regulations from “judgments of all crimes shall be based on the confession of the accused” to read “judgments of all crimes shall be based on proof,” rendering confession no longer a necessary precondition for a guilty verdict. Progress towards the outlawing of torture continued after criticism of it was published in English-language newspapers, with the government rescinding all regulations concerning torture in 1879. This outcome, it has been argued, was at least in part due to a speech made in 1878 at the International Law Association by the American David Dudley Field, who justified the retention of unequal treaties on the grounds of the persisting use of torture in Japan (Botsman, 2005).

That the French Code d’Instruction Criminellewas viewed sympathetically as a model for the Japanese Code of Criminal Instruction was in no small degree due to its strongly inquisitorial nature, with cases against defendants being made on the basis of a preliminary investigation made by a juge d’instructionand the judge playing an active role during the trial, which resonated with the ritsuryō practices the Japanese elite had been trying to revive. Although they had to be mindful that Britain and America, which were amongst the nations whose extraterritoriality Japan was trying to revoke, were unhappy at the prospect of having their citizens subjected to French-style criminal trials precisely because of their inquisitorial nature, the Japanese legislators pushed ahead with their plans, promulgating their new law on 17 July 1880, adopting many, but certainly not all, of Boissonade’s ideas. Under the new law, the role of the juge d’instructionwas filled by the procurator, who continued to exercise a similar amount of authority as under the earlier regulations, although the shift of the preliminary investigation from pre- to post-indictment meant that there was an increased time pressure on the procurator to complete his investigation, since after ten days of detaining the accused, he would have to apply to the examining judge for a warrant of commitment. Also as before, in making his decision, the judge placed great importance on the findings of the preliminary investigation, treating the file of the procurator as evidence, and rather than looking at the case anew, his main function was merely to assess the case built by the procurator, thus seriously undermining the presumption of innocence. Indeed, it was the norm for public officials to resign after being committed to trial, but before hearing the judge’s verdict.

One of the most notable changes in criminal procedure brought about by the new code was letting advocates into the courtroom in order to defend the accused for the first time. Despite in theory being on a level with the procurator, advocates had no right to question witnesses themselves: only through the judge could they participate in the cross-examination. Furthermore, advocates were not permitted to give counsel during the preliminary examination, a feature of the French-based law that was considered a particularly weak point by its critics. Being in Japan, Boissonade was oblivious to the latest legal developments in France at the time and so had based this aspect of the law on the corresponding section of the Code d’Instruction Criminelle.

Since the 1889 Meiji Constitution, which had been patterned on the German example due to the leadership’s identification with the Bismarckian regime, prescribed conditions relating to the judicature, the need soon emerged to update the Code of Criminal Instruction, and after only a year it was replaced by the Code of Criminal Procedure. In line with the German model on which the Constitution was based, Prince Ito Hirobumi set the German jurist Dr. Otto Rudorff the task of drafting a Law for the Constitution of the Courts based on the 1877 Gerichtsverfassungsgesetz (Lehman, 1983), which would subsume Book 2 of the Code of Criminal Instruction. Since the German system had borrowed heavily from the Code d’Instruction Criminelle, the resulting shift to a German model of criminal procedure was not a fundamental change, and in fact, Boissonade was able to collaborate with Rudorff on this project (Röhl, 2005). Nonetheless, there were some minor contradictions between the two statutes, such as a difference in the classification of courts, which needed to be resolved, and a Code of Criminal Procedure was hastily instilled in order to come into effect simultaneously with the other new legislation.

Apart from the removal of menial discrepancies, this revised code reaffirmed the authority of the public procurator, placing the judicial police under the direction of the procurator as his assistants during the preliminary investigation, and abolishing the requirement of warrant of commitment after a 10-day period of post-indictment detention. A change in the new code that further undermined the position of the suspect was the scrapping of his legal right to appeal against the preliminary examination decision. As for the trial procedure, in contrast to the old code, the new one prescribed precisely that suspects facing more serious charges than misdemeanor or felony could not be convicted on their confession alone, and it was obligatory for further incriminating evidence to be presented. Although this piece of legislation might suggest that the relative importance of a confession was henceforth reduced and there would be less incentive for a procurator to elicit one, in practice it was still considered the queen of evidence by judges in their search for the truth about the case, and procurators were therefore still keen to acquire this indisputable piece of evidence, sometimes going beyond the law during the secretive preliminary investigation in order to do so.

Finally, during the drafting stage, Boissonade argued for the inclusion of a provision for a jury, but faced rejection, with Ito citing Article 58 of the Constitution, “judges shall be appointed from among those, who possess proper qualifications according to law,” to make a case of juries made up of laymen as unconstitutional.

Treaty Revision Setback

Eager for recovery of tariff and jurisdictional autonomy, the Japanese government had raised the question of treaty revision with the Western powers even before putting the two new codes into effect in 1882, and, after a lengthy period of courting of the nations involved, they might well have succeeded in abolishing extraterritoriality, if not Western tariff control, by the early 1890s, had it not been for strong popular opposition to the terms for revision to which the Japanese negotiators had conceded. Although the Japanese request for treaty revision initially met with vigorous opposition from certain Western powers, most notably Britain, who cited the incompleteness of Japan’s legal system, the incompetence of the judiciary, and the lack of judicial independence, the concessions promised by Foreign Minister Inoue Kaoru over the course of the conferences held in Tokyo with the ministers of treaty powers since 1882—namely, the extension of foreign rights to residence and land tenure within treaty ports, as well as the complete opening of the country to foreigners—had, by 1885, won the Western powers over, and a general agreement was reached that the treaties would be revised. In fact, a treaty revision conference commenced on 1 May 1886, which resulted in a provisional plan to abolish extraterritorial jurisdiction in five years, demonstrating that the penal code was not so objectionable and out of touch with modern international standards to render it impossible for Westerners to consider, when other tempting concessions were offered.

This momentum towards treaty revision, however, was spoilt by domestic opposition to the proposed conditions that the constitution of the courts and the codes would have to be submitted to the Western powers for approval, and also that the latter would be given the right to establish tribunals with jurisdiction over cases involving foreign citizens until they were convinced of the proper functioning of Japanese courts. When the rumour of Inoue’s scheme of concessions leaked within the circle of the government, the nascent political parties quickly seized the opportunity to undermine the position of the newly created Cabinet by provoking outrage in the general public. Having shrewdly been robbed of purpose with the 1881 Imperial Rescript, which promised the establishment of a Constitution and a parliament by 1890, the former leaders of the popular rights movement were now arguing that the incumbent government was yielding Japan’s sovereign rights to foreigners and that the treaty revision on the terms it was about to accept would impede the attainment of full national independence, which they believed could be obtained by unilateral abolition of the treaties. Others,dressing their protest in nationalist rhetoric, advocated postponement of the revision of the unequal treaties until Japan had proved the extent of her progress and could enjoy a greater leverage in the negotiation process. In an attempt to counter these attacks, Inoue sought to convince the Western powers to accept weaker concessions. When his efforts proved unsuccessful, in July 1887 he was forced to adjourn indefinitely the conference for reviewing the treaty, which had been ongoing since 1886, and resign.

More than just the stalling of the treaty revision process, the Inoue affair also led to a wider debate within Japan about the growing Westernisation of Japanese laws, including within criminal justice. The question emerged in the public domain as to whether foreign diplomats, like Boissonade, ought to be allowed to orchestrate reforms which Japan should conduct itself (Jansen & Hall, 1989). Spilling over from this debate, the traditionalists retrospectively discussed the suitability of previously passed Western-based laws for Japan, calling into question the validity of natural law, and argued, in the case of the penal code, that the increase in crime was rooted in its leniency, and that it had been passed without enough discussion.

Administrative Measures for Social Management

Dissatisfaction with the penal code had been expressed amongst the ranks of the ruling elite immediately after the code’s implementation, but as the government could not afford to risk ruining the prospect for treaty revision, the code had to be preserved for the time being. Instead an increased administrative control was imposed in the form of a number of ministerial ordinances, which were designed to suppress the resurgent opposition. The year after the code was implemented, seeking a more traditional Japanese patriarchal system, Yamagata Aritomo, in his capacity of the Interior Minister, presented a text under the title of Reasons for Amending the Penal Code discussing offenses related to the Emperor system and the family order (Mitchel, 1976). Furthermore, on several occasions the Genrōinadopted resolutions regarding the amendment of the penal code and the accompanying Code for Criminal Instruction, and in July 1883 it even claimed that it would abolish these two codes altogether and revive the Confucian-based Shinritsu Kōryō. Despite these calls for change, the penal code was retained, as it was perceived as an important bargaining tool in the continuing negotiations for the abolition of the treaties. It stands out, however, that a number of ordinances were enacted, many based on the German models that were gaining popularity within the government, contradicting the nullum crimenprinciple of the Penal Code and the spirit of the Code of Criminal Instruction, demonstrating intent on the part of the government to increase state control and quash opposition.

Throughout the 1880s, a series of amendments were made to a ministerial ordinance regarding political gatherings, which had been established in the same year as the penal code, allowing the greater supervision of, and placing more restrictive conditions on, political meetings. Repressive press censorship was also imposed through an ordinance, issued in 1883, and its subsequent revisions (Mitchel, 1992). An even more wide-ranging measure taken to suppress political opposition was the Peace Preservation Law (Hōan Jōrei) of 1887, which included provisions to prevent uprisings and social order disturbances, as well as placing limits on how close individuals associated with opposition movements could approach the Imperial Palace.

New German-based Penal Code

It was only when the revision of the unequal treaties came into sight that the leadership embarked upon the wholesale revision of the penal code it had hitherto only envisioned. Despite the anti-Western sentiment which remained prevalent in Japan, manifesting itself in the 1889 attempt by the ultranationalist group Gen’yōshato assassinate Inoue’s successor, Ōkuma Shigenobu, the Ministry of Foreign Affairs continued to push ahead for treaty revision. After the failure of Inoue’s ostentatious approach to the treaty revision deliberations, the new tactic adopted was bilateral negotiations, with the idea behind this strategy being that by persuading the more flexible Western powers to accept Japan’s conditions first, an atmosphere would be created whereby treaty revision would become perceived as inevitable, even by the most resistant nations involved. This tactic proved a success for the Japanese authorities, who managed to circumvent the most domestically-controversial issue of employing foreign judges in the Japanese courts whilst giving little away in return. Once Britain had been cajoled, with the prospect of earning an ally in the Far East, into signing in July 1894 a convention stipulating that the unequal treaties agreed between the two states would be terminated in five years, the other Western powers soon followed suit. Undoubtedly contributing to these developments was Japan’s victory over China in 1895, which had demonstrated that Japan was a power to be reckoned with. With the date for the abolition of the Western powers’ extraterritorial rights now fixed as 17^thJuly 1899, the Japanese government considered that the door had now become open for the long-awaited instatement of a new penal code. The draft penal code issued by MOJ in 1897 formed the basis of what was to become Japan’s New Penal Code ten years later.

By the time the ruling clique began preparations to amend the penal code, many of the other institutions of Japan had been revised along German lines, and the situation with the penal code would be no different. However, rather than adopting the 1870 German Penal Code in force at the time, which, like their own, stood under the influence of France’sCode Pénal, the Japanese leaders saw the advantages, unrecognised by Bismarck himself, of incorporating the ideas of the sociological school of criminal law, which was spearheading a vigorous campaign for the reform of the German Penal Code. Led by the prominent Berlin criminologist Franz von Liszt, this reform movement was pushing for the reshaping of the penal law in force in Germany so as to set wider definitions of crimes and extend judicial discretion in meting out punishments, which were seen by the members of the movement as a necessary measure for tackling the country’s progressive increase in crime.10 Supporting their claims with strong statistics, Liszt and his colleagues reproached the present law with attaching weight only to the external criminal act while neglecting the real circumstances of the offender; they were critical of the narrowly and strictly defined limits of sentencing imposed upon judges by the French-based laws, which they saw as preventing the latter from making punishments fit the particular case. Rather than working to a pre-ordained menu of punishment, where the principle role of the judge was to classify crimes with the undue precision of the existing legal provisions, it was asserted that it is the criminal, and not the crime, that should be punished, with judges being allowed subjectively to determine the fate of an offender based on the individual circumstances.

While this school’s ideas were resisted in Germany, in Japan they were embraced. With the tight control that the executive exercised over the judiciaryvia MOJ,11 the elite saw the broad judicial discretion offered by the sociological school as providing another means for extending the administrative power of the state and establishing a stricter social control within Japan. In order to legitimise the abolition of the Old Penal Code and the adoption of a new one based on the new legal ideas, the dramatic increase in crime, which was a corollary to the social upheaval in the aftermath of the Meiji Restoration, was attributed to the old code’s lenience, and it was further asserted that there was a need to change the fundamental philosophy underlying Japan’s penal laws. It helped the oligarchs that a number of influential legal scholars of the Meiji period—such as were Tomii Masaaki, Yokota Kuniomi, Kuratomi Yuuzaburō and Makino Eiichi—were supportive of the new sociological school on a philosophical level, seeing in the notion of judicial subjectivity the Confucian ethic of the benevolent ruler, instructing his subjects in moral principles (Jansen & Hall, 1989).

The path to legislation for the draft Penal Code completed by MOJ in 1899 was long and turbulent. Soon after the drafting process had begun at MOJ in the early 1890s, the newly-established Bar Association (Bengoshikai) and academics from the private law schools raised an objection to the secrecy in which work on this draft was conducted, suspecting that the likely German-influenced content, built around the ideas of preventative justice and judicial subjectivism, would be suppressive of human rights. Specifically, the fear was that the judge’s discretion would be broadened, reducing the capacity of the public to predict what actions would be interpreted as crimes and what kind of punishment would be prescribed. In the midst of such criticism, when the proposed code reached the Diet in 1901, albeit with some minor changes, it was inevitable that objections from legislators with background as lawyers, such as Hanai Takuzō of the House of Representatives, for example, would stall its progress, and the time for deliberation would elapse without the draft being passed. A particular sticking point in the deliberations was the issue of social control, and disagreements between legislators regarding the specific offences of rebellion (nairan), contempt of a public official or office, defamation and riot, prolonged the stalemate, with two more, slightly amended, versions of the draft, being presented to the Diet in 1902 and 1903, failing even to reach a vote.

Frustrated by the lack of progress, a member of the dominant party Rikken Seiyūkai, Motoda Hajime, introduced in 1905 in Diet a limited proposal concerning the introduction of suspended execution of sentences, which was considered necessary to alleviate the problem of prison overcrowding. This successful bill was the first step towards introducing German-style judicial subjectivism in Japan, allowing the judges to waive the sentence for a minor offense of a convicted person with no previous criminal record. However, despite this special law being passed, legislating the complete Penal Code draft was still on the agenda. What put an end to the previous abortive attempts was the appointment of the influential Seiyūkaimember Matsuda Masahisa as Justice Minister in 1906 in the First Saionji Cabinet, which was more liberal than that of the preceding Katsura Tarō, who held office from 1901. Determined to obtain a consensus on the draft Penal Code, Matsuda set up a Committee for Investigation of the Law at MOJ, and allocated membership to legislators from the House of Representatives and House of Peers, bureaucrats, scholars and lawyers, regardless of their position with respect to the code. The resulting 1907 draft was approved by both Houses of the Diet, albeit contradicting amendments were proposed by each. To resolve this deadlock, a conference for consultation between the two Houses was conducted, with the issues of state control measures and ‘attempted crimes’ being intensely debated. This collision was at one point so acute, that it endangered the amendment, and even the existence, of the penal code itself. However, in the end, both sides agreed to compromise and the code was enacted on 24^thApril 1907.

The intent to enable the flexible discussion and determination of crimes and punishments is reflected in the simplified crime classification system of the code, the more abstract provisions allowing greater judicial discretion, as well as the deletion of that barrier to the application of punishment for crimes not envisaged by the codifiers, and the imposition of punishment by analogous application of the law—thenullum crimenclauses. With regards to classification, the threefold system of crime, délit, andcontraventionof the Old Penal Code was abolished in favour of a single class of Offenses, with previous Book 2, which covered Offenses against the Public Interest, and Book 3, on Offenses against Person and Property, now amalgamated into one.12 Although the reduction of articles from 424 to 264 does not in itself prove that the provisions of the New Code were less detailed, a close examination of the example of ‘homicide’ illustrates how this was the case. Whilst in the Old Penal Code there were 7 different types of homicide (i.e., manslaughter, killing by poisoning, premeditated murder, etc.), each enlisted with a fixed penalty so as to leave almost no scope for judicial discretion, in the New Penal Code only one type was regulated for, and the judge was given the freedom to determine the penalty, which could vary from capital punishment to life imprisonment to imprisonment with hard labour for not less than 3 years depending on whether the specific crime was committed by a recidivist or a first-time offender.

Most blatant in this attempt to achieve greater elasticity in punishments was, however, the removal from the old code of the articles embodying the nullum crimenprinciples. The omission from the new penal code of these all-important articles was defended against the reactionaries by reference to Article 23 of the Meiji Constitution, which stipulated that “[N]o Japanese subject shall be arrested, detained, tried, or punished, unless according to law.” It was argued, that since the Constitution already covered for this principle there was no need expressly to state it in the penal code. Another example of the greater latitude granted to judges by the New Penal Code, deriving from its underlying philosophy that the criminal action is nothing more than just the surfacing of the criminal’s evil nature, and that the purpose of punishment is to reform this dangerous nature, is the equal treatment of ‘committed’ and ‘attempted’ crime, so that the level of punishment was determined purely on the basis of the circumstances, and not the actual level of infringement of the law, as in the Old Penal Code, which took the view that ‘attempted crime’ should receive a less severe punishment than ‘committed crime’. In particular, under the New Penal Code, the reduction of sentence in the case of an attempted crime was left to the discretion of the judge, whereas in the old code it was mandatory.

A Period of Relative Stability

Following the dramatic upheavals in Japanese law during the Meiji era, the situation was very much more stable in the period running until Japan’s demise in World War II, as the power within Japan gradually shifted from the last remaining Genroto the Diet. Although there were moves from both liberal progressives and authoritarians to amend legal instruments instituted during the earlier Meiji period, there was no over-riding force for change and little happened as a result. In the case of the Penal Code, for example, a revision attempt, inspired by legal innovations in Germany and Switzerland, was made after World War I, but this was a futile endeavour. As for the Code of Criminal Procedure, there was a revision made in 1922, which was the culmination of a process that had started, along with the revision process for the penal code, in the mid-1890s and had hitherto yielded only minor amendments to the code in 1899 and 1908. However, the French-based core of its 1890 predecessor was essentially retained. In these relatively uneventful years for the Japanese criminal justice system, the 1923 Jury Law (Baishin Hō), which would come into force in 1928, stands out as the most noteworthy development. Rather than borrow from Germany, as with most of the late-Meiji legislation, for this law Japan used the British model of petit jury of twelve persons (Dean, 2002). Since constitutional arguments were applied to curb the jury’s authority and prevent them passing final judgment, the function of the jury was merely to determine points of fact, but even at this level their decision was not binding, and there were no limitations on the number of times the court could replace the panel. In any case, the jury system did not thrive in Japan, arguably due to the public mistrust of non-professional judgments, and its use gradually eroded during the 1930s before finally being suspended for practical reasons during World War II in 1943.

Reforms during the American Occupation

The next significant legal developments in Japan occurred during the post-war American Occupation, in which many of Japan’s Meiji laws had to be rewritten in order to encompass the protection of fundamental human rights expressed in the new Constitution of 1947. One of the first tasks that the Americans set about, upon taking control of Japan, was to draft this revised Constitution, and apart from the attention-grabbing provisions regarding the Emperor’s position in society and the renouncement of war, a number of articles made important stipulations regarding the judiciary and criminal procedure that would have implications for, in particular, the Code of Criminal Procedure, the amendment of which would be, according to its key architect Alfred Oppler, the “most complicated and time-consuming legal reform” during the Occupation.

Along with the Consitutional guarantee for an increased independence of the judiciary, which manifested itself in a separation of the Supreme Court from the MOJ, during the revision of the Code of Criminal Procedure, which would eventually come into force in 1949, reflecting America’s criminal procedure, there was a shift to a more adversarial style of trial. The intention of the Occupiers was to facilitate a closer-to-equal battle being fought between the prosecution and the defense, and the judge playing a more neutral role. Unlike in the purely adversarial system espoused by some of the Occupation lawyers, whereby the leadership in the court would be left to the concerned parties, however, under the newly-created hybrid system, the examination of the defendant and witnesses remained in the hands of the judge, with the prosecution and defense only able to ask additional questions of witnesses after seeking permission from the judge (Oda, 1999). The procurator was relegated from his previous elevated position next to the judge to a place in court at the same level as the defense counsel and the preliminary investigation had been abolished, as the previous practices of practically determining guilt in secret before reaching court were viewed as contradictory to the constitutional right to a public trial. However, despite this change, the role of the procurator was not a direct focus of reform and he did not lose all of his advantages over the defense. More specifically, the defense had their access to evidence highly restricted, as they were only granted the right to inspect evidence if the prosecution had declared that it would be used during the pretrial and judicial permission had been granted. As a result, the impact of these reforms on Japanese trials was less transformative than the Occupiers might have hoped.

Another aspect of the reform of Japanese court procedure for which the Americans did not manage to obtain their desired end was in the attempted introduction of a jury system. Indeed, although the Americans were clearly the orchestrators of the revision process as a whole, with regards to the jury system proposed by Oppler, the Japanese jurists involved stood firm, eventually rebuffing this by citing its previous failure in Japan in order to convince him of its unsuitably for the new law (Oppler, 1976).

Whilst they realised that the 1948 Code of Criminal Procedure would most likely be amended in the future, a professed goal of the occupiers was to make difficult legislative impairment of the procedural rights which would appear therein by entrenching them in the Constitution. In doing so they were careful to eradicate the leeway left by the old Constitution, which had enabled Japanese lawmakers to craft laws to serve their own ends. Particular measures were included to reinforce the existing statutes prohibiting torture, and the earlier provisions regarding the use of confessions in court and the methods under which they could be obtained. This was not uniformly successful, however. Notably, by failing to revise the Prison Law, the Occupiers left a significant loophole in Japanese criminal procedure. Indeed, although there was a clear intention that suspects only be held in police detention for a maximum of three days before charge, the infamous “substitute prison” (daiyō kangoku) clause of the Prison Law (introduced in 1908) allowed this duration to be extended to 23 days—a practice which remains today, and has been linked to the high confession rate within the Japanese system.13

Compared to the Code of Criminal Procedure, the new Constitution had few ramifications for the Penal Code, which remained virtually the same, but for a few alterations, amongst which were: the abolition of lèse majestéin line with the constitutional principle of equality before law; the repealing of a number of provisions concerning war, again in accord with the pacifist aspect of the Constitution; the updating of libel laws to prevent the state from hampering the freedom of speech; an increase in the sanctions for abuse of power by public officials in the process of prosecution or police investigation; the removal of the police’s power to issue their own rules for minor offenses; and the elimination of police courts. Popular support for the death penalty amongst the Japanese led to the retention of the death penalty. Despite some arguments, citing the constitutional prohibition of ‘cruel punishment’, to the contrary, Oppler felt unable to push for its abolition due to America’s own endorsement of the penalty.

Concluding Observations

Had it not been for the compromising position that the Meiji oligarchs found themselves in when they came to power in 1868, or Japan’s defeat in World War II, it is almost certain that the criminal justice system would have looked quite different at the end of this story, as the concessions Japan was compelled to make to avoid colonisation and survive occupation contributed greatly to the richness of the legal tapestry of modern day Japan. Bequeathed was a criminal justice system overlaying elements of Confucian, Continental European, and Anglo-American law on fundamentally Japanese practices.

As has been clearly demonstrated in the preceding sections, however, this was not a one-way process, through which the Japanese contribution to its own laws was eroded. Rather, overseeing this eighty year voyage of criminal justice legislation, often authoritarian Japanese governments, calling on traditional values to support their position, were never completely out of control of their country’s laws, managing skillfully to exert their influence, even in adversity. Indeed, during both the Meiji and Occupation reforms, the leaders of Japan carefully gave away just enough to meet their political ends, and managed to do so in such a way that the resulting criminal justice system maintained many of the aspects that were most desirable to them.

Against this background, it is not surprising that although the historical development of Japan’s modern criminal justice procedures was based almost entirely on the implementation of ideas developed in Europe and the US, the process failed to yield a system that functioned similarly to its counterparts in the West. The high confession and conviction rates, for instance, that are seen in the Japanese system today can be clearly linked to parts of the criminal justice procedure which the US Occupiers tried to remove, but which the domestic decision-makers were able to retain, such as the lengthy pre-charge police detention period and key elements of the inquisitorial trial format.

So it is that, regarding Japan’s recent attempts at reforming its criminal justice system, one should not expect these efforts to lead to a less distinctive system than currently exists. To discuss briefly just one aspect, for example, despite its central position in the reforms, it is questionable whether the lay judge system introduced in 2009 will bring criminal justice in Japan closer to that in the European countries from which it was adopted, particularly given the importance of the investigation of the police and prosecution in Japan, for which no correspondingly substantial change has been made.

To conclude, one might surmise from history that although the recent reforms might encompass ingredients that are familiar to those outside of Japan, in trying to understand how these will be incorporated into the Japanese system, one should not simply look at how they are applied elsewhere, but also consider with which other Japanese ingredients they will be combined.

References

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Notes

Article copyright Sylvia Croydon.

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