Adjudicating Harmony: The Impact of Cultural Values on the American and Japanese Legal Systems

If one were to mention the country of Japan, cultural symbols such as samurais, geishas, or temples would come to mind. Conversely, American symbolism including a striped flag, the White House, or the idea of a “melting pot” would be imagined if the United States were to be discussed. Yet, should the legal systems in these countries become an item of conversation, extensive knowledge would be nearly absent. But what is the interaction between a country’s culture and the development of its legal system? More specifically, with regards to the discussion above, to what extent cultural values created a divergence between the American and Japanese legal systems. When analyzing the legal culture in each country, it becomes evident that different cultural norms have impacted the legal profession and system as a whole both institutionally and procedurally. But the intricacies of the Japanese legal system suggest that it performs a more effective job at reducing legal inequality through its willingness to embrace institutional reform.  

Before diving into the complexities of the Japanese legal system, it is important to set a solid framework for later analyses. Regardless of what nation, level of development or legal  structure, the application of the law is intertwined with the said nation’s culture. This intersection can be labelled as “legal culture”, that is, the way a specific nation carries out legal processes over a set period of time. The metrics for examining legal culture are based both on concrete aspects (i.e. the role of legal professions, judiciaries, number of courts, etc.) and more abstract concepts (i.e. ideas, values, etc.).[1]Armed with this context, the specific cultural values of Japan and the United States come into play. While the first formalized legal structure in Japan was created with the Meiji Constitution in 1890, the status quo structure was set up in the 1947 Japanese Constitution after World War II with American aid.[2] Yet, although western thought began to penetrate the indigenous Japanese culture after 1868, Japan’s culture has, and continues to, be largely informed by Confucian ideals borrowed from the Chinese. Based on collective tenets around the 和 (wa), ideas of group harmony, cooperation, and honor were created. Alternatively, Americans tend to hold ideas such as individualism, equality, and efficiency as the most regarded ideals for not only their citizenry to emulate, but also for other countries to mirror. Given the history of the American nation, first being influenced by Enlightenment ideals of the 1780s put forth by intellectuals such as Locke, Rosseau, etc. and then later struggles for independence, both as a nation and liberation of specific groups of people, it is not surprising to find this divergence. At face-value, independence movements may suggest collective action but the consequences of these actions highlight the endurance of individualistic ideologies, that is, that the moral individual felt the need to combat an existing social order because he or she felt that order was limiting in some way. Although there is a gray area for all of the aforementioned cultural qualities, it can still be deduced that generally, the Japanese culture largely is more inclusive than the American model from a societal standpoint. The Japanese acknowledge that there is power in societal collectivism and rely on the interests of the group to keep the existing social order as opposed to simply regarding an individual as a sovereign being who can choose whether or not to feel obligated to defer to that particular social order.   

And yet, with the cultural framework presented above, in what ways do these values impact both the Japanese’s and United States’ respective legal structures? Broadly, this cultural difference has caused the United States to embrace the common law while Japan has more so practiced civil law which is based upon codified laws. Due to the common law nature of the United States, the judicial process hails the idea of precedence, in the form of stare decisis in the Supreme Court, for example, to a high degree. Similarly, due to constitutional provisions, the American legal system is directly influenced by democratic values.[3] This has resulted in the adversarial nature of the U.S. legal system, that is, a system in which two opposing sides (i.e. defense and prosecution) deliver their arguments to an honorable judge who then adjudicates a sentence. In contrast, Japan’s legal system is based on five major codified law codes and its Constitution.[4]Such a framework, known as an inquisitorial legal system, allows the judge to have more of an active role in the case oftentimes investigating the facts themselves. On a more concrete level, in the adversarial U.S. system, there are few options to resolve a legal conflict besides litigation or settlement[5] whereas in Japan the idea of conciliation, usually through party agreements, is always sought to end a dispute.[6] One limitation of this idea of cultural values would be its impact on legal institutions as entities (explained later). Both the United States and Japan have a similar court structure with a supreme court and lower courts. However, the Japanese court system is unitary meaning it does not have a separate court system for state courts. Similar to the discussion above, these impacts on the legal processes in both countries are not mutually exclusive because similar structural elements are shared between the countries but such institutions are not identical.  

Cultural values perhaps most impactfully affect the judicial process itself, specifically the role of lawyers. In America, contemporary culture, although not always accurately, has portrayed the courtroom to be a space where attorneys deliver oral arguments to a judge. Although this image holds true for the adversarial system in our nation, the Japanese legal system is in stark contrast. In Japan, there is a greater emphasis on written briefs as tools to deliver the facts of a case and the typical attorney function (i.e. direct examination, investigating the case before trial, etc.) may be exercised by a judge[7]. Furthermore, the influence of Japan’s conservative culture has resulted in the pursuance of a “moral norm” over a “legal norm”, that is, that the act of hiring a lawyer can be seen as “admitting failure”. Similarly, the limitations of a prosecuting attorney’s role in the judicial process is another area where culture has influenced.[8] In the courtroom itself, a defendant’s apology even functions in two starkly different ways. While in the U.S. an apology is seen to mirror fault, the Japanese view an apology as a sincere attempt to defer to orderly harmony.[9] These differences inevitably affect how justice is delivered and also delineates what each country seems to value more. In America, it appears that guilt is what ought to be the main goal of criminal justice while in Japan, maintaining defendant and societal well-being is the more important goal of legal processes. 

Using the same method of thinking as this essay’s introduction, any reference to the American legal system would inevitably involve the Supreme Court. Deferring again to the outset, our citizenry would perhaps not have the knowledge that Japan too has a Supreme Court. However, like many other legal aspects, the impact of culture is significant. In adhering to the tenet of individualism, the U.S. Supreme Court has overwhelmingly resorted to protecting the Constitution, given the political background during a particular era.[10] Although the supreme law in America has remained relatively stable, the U.S. Supreme Court has still decreed drastic legal changes through judicial review and acting as the authority over lower courts. Yet, for the Japanese Supreme Court, there is a greater reluctance to exercise constitutional powers, such as striking down laws, and this supreme entity may even avoid using judicial language literally to preserve peace.[11] In this difference, it can be held that the highest legal institutions, although their powers are in similarity, the laying down of their power is still informed by culture in a divergent way.  

After analyzing the impact of cultural values on the legal field and process in these two countries, several recommendations are illuminated. Specifically, there are two ways the American legal system can learn from the Japanese. Firstly, it has long been held that the U.S. commitment to individualism has resulted in several institutional injustices. Inevitably, an adherence to the individualistic qualities of a human being, especially in the application of the law, results in a world where morality is held beneath self-interests[12] and, in turn, the perpetuation of social injustice. In conversation with an individualist’s privilege, an adversarial system allows wealth to play a more influential role than its inquisitorial counterpart. Indeed, a government must expend  more resources to gather more evidence to convict a rich felon as opposed to a poorer one largely because the rich defendant can afford much more experienced legal council.[13]Correspondingly, due to the increased involvement of a judge and less emphasis on the legal representation in the form of an attorney, an inquisitorial system can be deemed inherently more equal. Furthermore, when deferring to the idea of collective power, the Japanese highlight that when a person contributes what is expected of them to society, peace will ensure. This is exactly why there is a greater partnership between Japanese citizens and police officials to deter crime[14]. As such, it becomes clear the U.S. ought to place more attention to the power of inclusivity and actively seek out measures to promote collaborative action between authorities and civilians. On another spectrum, the American legal system, unlike the Japanese system, has faced relatively minor reforms in the past decades. This is perhaps because America’s legal system is directly adapted from English law structures. Nonetheless, most recently, acts such as the First Step Act attempted to at least diminish the influence wealth has on the deliverance of justice but results have been insignificant at best.[15] When referring to the Japanese model and previously elaborated information above,  their legal system has largely embraced institutional reform when faced with citizen backlash. Yet, America’s legal system continues to perpetuate injustice due to its privatization of guilt over harmony and its lackluster attempts at significant judicial reform that would fight systemic discrepancies such as disproportionate African-African incarceration rates. Some attempts at reform, such as the Violent Crime Control and Law Enforcement Act of 1994[16] and the aforementioned First Step Act in 2016, have been passed but no clear impact of improving racial disparities in the judicial system has manifested.  

It may be argued that the Japanese, in seeking to preserve an orderly society, pursue justice to an extreme. Commonly cited evidence is the fact that Japan has a 99.9% conviction rate and debates about this topic seemingly attribute this development to mass incarcerations ploys and/or corrupt police administrations that forced defendants to compulsory confessions. Due to this staggering percentage, it has created the perception that the Japanese legal system devalues defendant rights. However, as noted previously, the Japanese government’s response to citizen dissent renders this belief invalid because Japan readily listened to and applied external opinions to its legal system with success especially as it relates to defendants. For example, in 2009, Japan introduced lay judges in trial courts and a decade later, success has been garnered in the form of courtroom transparency being a judge is not the sole actor in delivering a verdict.[17] In 2016, Japan reformed its criminal justice system entirely by amending its Criminal Procedure Code among other laws.[18] The most significant aspect was the institution of mandatory video recordings during interrogation procedures. It is paramount that in the wake of citizen discontent, countries actively seek to reform the underlying issues of their criminal justice system. In reforming its original legal structure, Japan has thus committed itself to legal equality. Yet, from this discussion of reforms, a tension of conversation is revealed. If the Japanese are committed to maintaining a certain social order but still readily carry out reforms, is this a contradiction? In addressing this point, it is important to note that the Japanese legal system’s success has been due in part to its ability to hybridize by incorporating other nations’ legal thoughts into their judicial system[19]. Thus, the idea of harmony in society, although its foundations are in traditional, Confucian thought, is simultaneously a fluid concept. Indeed, history shows how Japan evolved to a great power by embracing change.   

Yet, this does mean the Japanese legal system is an idealized legal system without certain limitations. A key point of contention is the career judge system in Japan. The first area of discontent is that the Supreme Court has the power to transfer judges after a set period of years to augment their knowledge/experience of different legal topics. Although the tenure of these judges increases, their experience in a particular topic does not, leading to inexperienced judges in certain courts.[20]  Secondly, the more experienced judges are typically passed over for “assistant judges” who are newly minted judges out of a judicial legal program.[21] This occurs because the Supreme Court feels that fresh judges need to gain more experience and yet this results in inexperienced judges sometimes being placed into legal cases they may not be familiar with not just due to a lack of experience, but also because many of these new judges have not experienced foreign legal perspectives.[22] It will be necessary to see if any reforms that specifically relate to the career judge system will be passed in the future. 

This essay analyzed the cultural foundations of legal values, institutions, and processes to highlight how the intersection between culture and law unfolds in Japan and the United States. This essay validates the Japanese decision to use an inquisitorial system due to factors such as the praising of agreement over costly legal battles, which, arises out of Confucian thought. Furthermore, it appears that Japan is more open to reforming its judicial system and it is suggested that the United States ought to mirror these actions as well. Although certain limitations of the Japanese legal system were conceded, with the rising rates of social injustice and activity of prison reform groups nationwide, the United States still should learn from Japanese institutions just as much as Japan has been influenced by the United States. Applying this cultural framework, it can be deduced that a country’s legal participants, structure, and process are directly informed by the said country’s cultural values. Although Japan has made progressive efforts to combat contemporary critiques of its judicial system, significant reform is still needed. It will be of paramount importance to pay attention to both prior reform successes and future criminal justice reforms both in Japan and the United States.

[1] Nelken, David. “Using the Concept of Legal Culture.” Legal Theory and the Social Sciences, May 2017, 1. https://doi.org/10.4324/9781315091891-11.

[2] “LibGuides: Japanese Law Research Guide: Legal System & Statistics.” Legal System & Statistics - Japanese Law Research Guide - LibGuides at University of California, Hastings College of the Law. Accessed November 10, 2019. https://libguides.uchastings.edu/japan-law/legal-system-stats.

[3] Ewald, William. “What's So Special About American Law?” University of Pennsylvania Law School Penn Law: Legal Scholarship Repository, 2001, 1097. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2246&context=faculty_scholarship.

[4] Taylor, Veronica, Robert Britt, Kyoko Ishida, and John Chaffee. Introduction: Nature of the Japanese Legal System, 2008, 3. https://www.daiichihoki.co.jp/store/upload/pdf/025965_pub.pdf.

[5] Koichiro, Fujikura. “A Comparative View of Legal Culture in Japan and the United States Comment .” HeinOnline, 1983, 131. https://heinonline-org.ezp-prod1.hul.harvard.edu/HOL/Page?collection=journals&handle=hein.journals/lij16&id=137&men_tab=srchresults.

[6] Berat, Lynn. “ The Role of Conciliation in the Japanese Legal System.” American University International Law Review, 1992, 125. http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1508&context=auilr.

[7] “Major Differences Between the Japanese and American Legal Systems.” Major Differences Between the Japanese and American Legal Systems - Blog | @WashULaw, November 20, 2013. https://onlinelaw.wustl.edu/blog/major-differences-between-the-japanese-and-american-legal-systems/.

[8] Tran, Katrina. “How Japan’s Cultural Norms A Ect Policing: A Side-By-Side Comparison with the United States.” Emis: Research Journal of Justice Studies and Forensic Science, May 11, 2017, 53. http://scholarworks.sjsu.edu/cgi/viewcontent.cgi?article=1051&context=themis.

[9]Wagatsuma, Hiroshi, and Arthur Rosett. “The Implications of Apology: Law and Culture in Japan and the United States.” Journal of the Law and Society Association, 1986, 492. https://www-jstor-org.ezp-prod1.hul.harvard.edu/stable/pdf/3053463.pdf?ab_segments=0/basic_SYC-4222/test&refreqid=search:324369f599ced381ce3f15638f52d865.

[10] Roberts, Gary C. “ e United States Supreme Court and American Individualism.” Western Michigan University ScholarWorks at WMU, August 2004, 169. https://pdfs.semanticscholar.org/71ab/2f9c5f0172194eb5e856aa5e01b7a13bb903.pdf.

[11] Law, David S. “Why Has Judicial Review Failed in Japan?” Washington University Law Review 88, no. 6 (2011): 1430–31. https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1061&context=law_lawreview.

[12] Turner, Jack. “American Individualism and Structural Injustice: Tocqueville, Gender, and Race.” Northeastern Political Science Association40, no. 2 (2008): 215.

[13] Stuntz, William J. “Inequality and Adversarial Criminal Procedure: Comment.” Journal of Institutional and Theoretical Economics 164, no. 1 (2008): 47. https://www.jstor.org/stable/40752691?seq=1#page_scan_tab_contents.

[14] Bayley, D H. “Forces of Order: Policing Modern Japan.” University of California Press Berkeley, 1991 https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=131894.

[15] Stuntz, William J. “Inequality and Adversarial Criminal Procedure: Comment.” Journal of Institutional and Theoretical Economics 164, no. 1 (2008): 47. https://www.jstor.org/stable/40752691?seq=1#page_scan_tab_contents.

[16] Shannon, Ranya. “3 Ways the 1994 Crime Bill Continues to Hurt Communities of Color.” Center for American Progress, May 14, 2019. https://www.americanprogress.org/issues/race/news/2019/05/10/469642/3-ways-1994-crime-bill-continues-hurt-communities-color/.

[17] “Evaluating the Lay Judge System, 10 Years On.” The Japan Times, May 5, 2019. https://www.japantimes.co.jp/opinion/2019/05/05/editorials/evaluating-lay-judge-system-10-years/#.XbOB-kVKh-U.

[18] Umeda, and Sayuri. “Japan: 2016 Criminal Justice System Reform,” November 1, 2016. https://www.loc.gov/law/help/criminal-justice-system-reform/japan.php.

[19] “Traditions and Foreign Influences: Systems of Law in China and Japan.” Duke University School of Law 52, no. 2 (1989): 149. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3994&context=lcp.

[20] Iimura, Toshiaki SLS |Commentaries. “Commentary No. 14: The Binding Nature of Court Decisions in Japan's Civil Law System.” China Guiding Cases Project, June 30, 2015. https://cgc.law.stanford.edu/commentaries/14-iimura-takabayashi-rademacher/#i-japans-court-system.

[21] Foote, Daniel H. “DIVERSIFICATION OF THE JAPANESE JUDICIARY.” Washington International Law Journal Association, 2017, 1.

[22] Ibid 1, 25.