Wren, Harold G.

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Washington Law Review Volume 39 Number 3 8-1-1964 Law in Japana: The Legal Order in a Changing Society, edited by Arthur T. von Mehren (1963) Harold G. Wren Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr  Part of the Comparative and Foreign Law Commons, and the Law and Society Commons Recommended Citation Harold G. Wren, Book Review, Law in Japana: The Legal Order in a Changing Society, edited by Arthur T. von Mehren (1963), 39 Wash. L. Rev. 657 (1964). Available at: https://digitalcommons.law.uw.edu/wlr/vol39/iss3/11 This Book Review is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. BOOK REVIEWSthe preference of public welfare to individual rights must be takenseriously because the danger exists that it could result in the samesituation that prevailed under the Meiji Constitution when funda-mental human rights were granted only "within the limits of the law."I see no reason for pessimism, on the whole. The progressivedecisions of several district courts as well as some of the separateopinions of Supreme Court justices augur well for future develop-ments. They show courage, imagination, and understanding of thespirit of the Constitution. We may expect further progress from thenew men on the bench. It might be significant to note that in adecision of November, 1962, the Supreme Court declared a provisionof the Customs Law unconstitutional because it violated privateproperty rights.These observations are in no way designed to detract from thegreat value of Mr. Maid's extremely interesting work and from thefine contribution it makes to our knowledge of Japan's highest tribunaland of the most important and exciting aspects of its performance.ALFRED C. OPPLER*LAW IN JAPAN: THE LEGAL ORDER IN A CHANGING SOCIETY. Editedby Arthur T. von Mehren.' Cambridge: Harvard University Press.1963. Pp. 706, xxxviii. $15.00.More than a decade has passed since the end of the Americanoccupation. During this period, Japan has continued to prosper witha highly viable economy and a modem democratic polity. Much ofthis is attributable to one of the most successful military occupationsin all history. America's influence on all aspects of Japanese societywas great. How lasting it will be remains an intriguing question.Law in Japan is an appraisal of this influence in the law.The book is an outgrowth of a conference on Japanese law spon-sored by the Ford Foundation. At the conference, Japanese legalscholars presented papers describing aspects of the Japanese legalsystem. These articles have been edited, grouped, and analyzed inthe present volume. The articles are arranged in three groups:(1) "The Legal System and the Law's Processes"; (2) "The* Former Chief, Legislation and Justice Division, Legal Section, GHQ SCAP,Tokyo, Japan.I Professor of Law, Harvard Law School.1964]WASHINGTON LAW REVIEWIndividual, the State, and the Law"; and (3) "The Law and theEconomy."In the first article in Group I, the reader is presented with a descrip-tion of the development of modern Japanese law from the beginningof Westernization during the latter half of the nineteenth century.In the 1890's, Japan drew heavily on the West to codify its basic law.The late Dean John H. Wigmore of Northwestern University Schoolof Law spent three years in Japan, in which he sought to convincethe Japanese of the wisdom of building on their own common lawtradition,2 but failed when the Japanese turned from their indigenouslaw to the French and German codes.The second article describes the many methods of resolving disputesin Japan.3 These include litigation, mediation, consultation, and arbi-tration. The latter three methods are part of the centuries-oldJapanese tradition of avoiding litigation if possible. The Americaninfluence is evident here in the elevation of the status of the lawyerin Japanese society to give him a greater role in the settlement ofdisputes.The last three articles in Group I describe changes in litigation andin the attorney's role in post-war Japan. In one, for example, theauthor describes the modification of the formerly extensive role of thejudge in the settlement of disputes, and concludes that litigation todayis at a "midway position [which] is in a real sense a fusion of theContinental and the Anglo-American philosophies." (p. 110) In an-other, the author notes that while the lawyer has a far greater role inpost-war Japanese society, he still does not have the status of hisAmerican counterpart.The final article in Group I deals with legal education in Japan,explaining Japan's unique method for training the new members ofits legal profession. The aspiring member of the Bar becomes eligibleto take the national legal examination by graduation from the lawdepartment of one of the Japanese universities, with the equivalentof a Bachelor of Arts degree. While this examination is extremelydifficult (only about four percent pass), if he is successful, he receivesa combination of practical and theoretical studies at the Legal Train-ing and Research Institute for two years. Upon graduation from the2 Among the world's sixteen legal systems, according to Dean Wigmore, only inthe English and Japanese systems did official judges decide cases according to judicialprecedent. See WIGMORE, PANORAMA OF THE WORLD's LEGAL SYSTEmS, 48-89. 503-520(library ed. 1936).3 Cf. Wren, Japanese Law or Logic, Case & Com. Nov-Dec, 1963 p. 36.[VOL. 39BOOK REVIEWSInstitute, he may choose a governmental career by becoming a judgeor procurator, or he may enter private practice. The work at theInstitute, which is a government sponsored institution, is the nearestJapanese equivalent to the American professional law school.Group II contains a series of articles dealing with the expansion ofindividual rights since World War II. In each of these articles, thereader finds the imprint of American law. In the area of constitutionallaw, Japan has adopted judicial review, but the courts have con-sistently refused to hold legislation, which we might consider restrictiveof the freedom of expression, unconstitutional. In Koyama v. Japan,4for example, the Supreme Court denied the appeal of the translatorand publisher of the Japanese version of "Lady Chatterly's Lover."The defendants had been convicted of violating an Article of thePenal Code directed against obscene writings. The Court said:[T]o constitute an obscene writing, it is required that it offend the senseof shame, give rise to the stimulation and excitation of sexual desire, andviolate the notions of virtuous sexual morality.... [A] Ithough what werefer to is the stimulation and excitation given to the general reader bythe work and the degree that this reader entertains a feeling of shame,these matters must be determined by the court. The court's standard formaking this determination is the good judgment employed by society atlarge, i.e., the 'common sense of society.'... [O] n examining the transla-tion in this case, it is not true that we cannot discover an artistic qualitydifferent from pornographic literature [literally, 'spring books'] in thedepiction of the twelve sexual scenes pointed out therein by the publicprocurator, but even so these are quite bold, detailed, and realistic. Theycontravene the principle of privacy in sexual conduct and offend thefeeling of shame to the extent that one would hesitate to read them aloudin not only the family circle but a public gathering as well.;Professor Masami Ito of Tokyo University deplores the SupremeCourt's basing its decision on the "twelve sexual scenes," rather thanon the work as a whole, and finally concludes:For me, the most unsatisfactory part of the Lady Chatterly opinion is thedictum to the effect that, if the sensibility of society to obscenity isparalyzed, the judges must 'assume a critical attitude against the sicknessand degeneration and play a clinical role.' This kind of thinking may leadto a judicial censorship that is hostile to freedom of expression. (p. 228)In an article on administrative law, the writer notes that only those411 Sai-han Keishu (Sup. Ct, Japan, 1957).GQuoted in Ito, The Rule of Law: Constitutional Development in Law in Japan226 (von Mehren ed. 1963).1964]WASHINGTON LAW REVIEWstatutes fostered by the Occupation (e.g. the Anti-Monopoly Law,which created the Fair Trade Commission) contain a "substantialevidence rule" which limits the reviewing court to determining whetheran administrative agency's findings of fact are reasonably derived fromthe evidence. Otherwise, Japanese courts reviewing administrativefindings, must conduct a trial de novo.The principal change in family law in the post-war years was thebreakdown of parental authority over children, according to the thirdwriter in Group II. The next most significant change, he says, was theelevation of the status of women. Finally, with regard to the tradi-tional role of the eldest son, who had the equivalent of the right ofprimogeniture and the responsibility for caring for the parents, heconcludes that the law has not changed noticeably. Some interestingstatistics, as well as a statement of the changes in the doctrinal law,support these conclusions.The article on motor vehicle accidents reflects the growth of Japanduring the postwar years. A governmental compulsory liability systemprovides the mechanism for compensation for personal injuries. Thewriter complains that the awards are often too little, and that propertydamage is not covered by the insurance.The three articles on criminal law included in Group II are espe-cially interesting. The first, describing "Some Aspects of CriminalLaw," points out a number of changes in the substantive law of crimessince World War II. The second discusses the shift from the pre-warinquisitorial process to the present-day accusatorial system, whereinthe procurator resembles his American counterpart, the district attor-ney. The third, and best of the three, is an excellent treatment of the"Therapeutic and Preventive Aspects of Criminal Justice in Japan."Some of the problems considered are the standardization of sentencing,presentencing investigations, recidivism, juvenile delinquency, andprobation and parole.Group III, on "The Law and the Economy," consists of five articleson labor law, trade regulation, commercial law, corporate law, andincome taxation. With the exception of commercial law, the doctrinesin all of these areas reflect the influence of the Occupation. Laborlaw, like the Japanese labor movement, has grown "from its infancy inthe troubled times of the early postwar years... into adolescence--a period of awkwardness, emotional instability, somewhat uncontrolledstrength, impatience and limited experience." (p. 472)[VOL. 39BOOK REVIEWSWith the greater dispersion of stock ownership in the post-warperiod, a modernization of the corporate law has contributed to agreater shareholder participation in management. Proxy fights andderivative suits are not unknown, and the securities market, withregulatory laws modeled after the American securities acts, is com-parable to our own. The writer laments "the absence of public-spiritedcitizens like Lewis D. Gilbert or Wilma Soss," (p. 553) and concludesthat shareholders' rights "have not yet been fully explored by Japaneseinvestors." (p. 566) On the other hand, "the disclosure philosophy[of the securities law] has proved to be highly effective, [and] annualreports of registered or listed corporations have become very muchmore informative." (p. 566)In the field of trade regulation, the Occupation succeeded in break-ing up-superficially-the Zaibatsu, and in bringing about the enact-ment of the Anti-Monopoly Law. The latter statute has "served as arestraining influence on [the establishment] of cartels, [but] itsenforcement is anemic today.... [T]he text of the statute and thedecisions implementing it in the past remain and could be resuscitatedeasily by an administration sympathetic to their principles. There is,of course, no immediate prospect of this happening." (p. 505)In income taxation, the Occupation went further in seeking to bringabout change than in any other aspect of the economy. The ShoupReports of 1949-50 established the initial pattern for Japanese incometaxation in the post-war era by abolishing the distinction betweencapital gain and ordinary income and introducing an elaborate aver-aging system. When the Americans left, the Japanese proceeded tomodify substantially their income tax law.In commercial law, the influence of the Occupation was not great.Prior to the Meiji Restoration of 1868, Japan had a well developedindigenous commercial law. Interestingly, in the early years of West-ernization, it appeared that Japan would follow American bankingpractices; but toward the end of the nineteenth century, she turnedmore to Europe for guidance in the field of finance. Sophisticatedbanking, factoring, security devices, and negotiable instruments havelong characterized the Japanese commercial world, and the Occupationdid little to change this.Law in Japan is not a definitive treatise of the law of Japan. Rather,it is a potpourri of various aspects of Japanese society where law isinvolved. Some of the articles (e.g. Professor Ito's paper on constitu-19641WASHINGTON LAW REVIEWtional law) are written in the analysis-of-doctrine fashion that char-acterizes the typical American law review article. Others, such asProcurator Haruo Abe's discussion of the "Therapeutic and PreventiveAspects of Criminal Justice in Japan" are descriptive of practices ofthe Japanese judicial system. All are extremely interesting reading,particularly for the American who seeks to learn of the effects of theOccupation on Japanese law.Editor von Mehren has done a fine job of arranging the papers inan orderly fashion, and providing a commentary at the end of eachgroup of articles in which he summarizes the remarks of the Japaneseand American scholars attending the conference. Credit should alsobe given to the sixteen American editorial collaborators who assistedthe seventeen Japanese authors, and to Dr. David F. Cavers,Fessenden Professor of Law at the Harvard Law School, who hasprovided a description of "The Japanese American Program forCooperation in Legal Studies." (pp. xv-xxxviii) Finally, the bookcontains a complete index, a table of cases, and a table of statutes,and is very beautifully bound. HAROLD G. WREN*AMERICAN-JAPANESE PRIVATE INTERNATIONAL LAW. By Albert A.Ehrenzweig,' Sueo Ikehara,2 and Norman Jensen.' (For The ParkerSchool of Foreign & Comparative Law- being Vol. 12 Bilateral Stu-dies) Dobbs Ferry, N.Y.: Oceana Publications Inc., 1964. Pp. 173.$7.50.This book proves that Rudyard Kipling was right when he saidthat east is east and west is west and never the twain shall meet. Italso proves that in spite of this they can work together. The seconddiscovery of Japan, following unconditional surrender at the end ofWorld War II, came in a more complex period of history than the firstby Commodore Perry. The first was not followed up by the Americansas assiduously as by the Europeans and thus we find that that portionof the Japanese legal system which is westernized is civilian in generaland German in this special field. Another thing this book proves,* Professor of Law, Southern Methodist University.1 Professor of Law, University of California.2 Professor of Private International Law, Tokyo University.3 Tokyo representative of Baker, McKenzie, & Hightower.* Professor of Law, University of Miami School of Law.[VOL. 39

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\u3ci\u3eLaw in Japana: The Legal Order in a Changing Society\u3c/i\u3e, edited by Arthur T. von Mehren (1963)

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