Authority without Power: Law and the Japanese Paradox (Studies on Law and Social Control)

this Book Offers A Comprehensive Interpretive Study Of The Role Of Law In Contemporary Japan. Haley Argues That The Weakness Of Legal Controls Throughout Japanese History Has Assured The Development And Strength Of Informal Community Controls Based On Custom And Consensus To Maintain Order—an Order Characterized By Remarkable Stability, With An Equally Significant Degree Of Autonomy For Individuals, Communities, And Businesses. Haley Concludes By Showing How Japan's Weak Legal System Has Reinforced Preexisting Patterns Of Extralegal Social Control, Thus Explaining Many Of The Fundamental Paradoxes Of Political And Social Life In Contemporary Japan. david J. Danelski the Thesis Of This Fascinating Book Is That Law In Japan Is Essentially Authoritative Command Rather Than Coercive Sanction. As A Result, Japan Relies Principally On Informal Mechanisms To Maintain Order In Its Society. The State Is Nonetheless Interventionist, But Its Capacity To Control And Maintain Order Depends On Its Ability To Persuade And To Achieve Legitimating Consensus. In This Process, Law Is More A Tool Of Achieving Consensus Than A Coercive Instrument Of Control. Order Is Thereby Maintained, Haley Concludes, And A Rule Of Law By Command Without Coercion Prevails. (p.200) Haley's Argument Begins With A Series Of Historical Essays Interpreting Japanese Legal History. The Main Point Of The First Essay Is That The Emperor's Adoption Of The Chinese Penal Codes (ritsuryo) Early In The Seventh And Eighth Centuries Made Japanese Law Authoritative As Well As Coercive. In His Second Essay, Haley Argues That Authority And Power Separated When Japanese Emperors Became Figureheads And Military Clan Leaders And Shoguns Wielded The State's Coercive Power. In His Third Essay, Haley Observes That The Autonomy Allowed To The Rural Villages (mura) During The Tokugawa Period Resulted In Informal Rather Than Legal Controls Regulating Social Behavior. In His Final Historical Essay, Haley Argues That The Meiji Constitution Was Defective Because It Centralized All Legal Powers In The Person Of The Emperor Who By Convention Could Not Or Would Not Exercise Them. The Consequence, Says Haley, Was A Failure Of Political Integration And A Fatal Fragmentation Of Governance. Western Legal Forms Were Unable To Express Or Articulate The Basic Premises Of The Japanese Political Tradition, The Separation Of Power From Authority.(p.80) Haley Continues His Argument In Four Additional Essays Discussing Law In Modern Japan. The Essays Cover Four Topics-- Litigation, Criminal Justice, Governmental Regulation Of Business, And Social Control In Villages And Criminal Gangs. These Essays Were, For The Most Part, Published Earlier As Articles. As A Result, Some Of Them Are More Relevant Than Others To Haley's Thesis, But All Merit Careful Reading, For They Contain Many Insights Concerning Law And Social Control In Japan. In So Far As They Bear On Haley's Thesis, These Essays Show That The Japanese Judiciary Is Institutionally Weak, That The System Of Informal Social Controls Of The Mura Have In Effect Become The Predominant Pattern For Governance In The Nation, And That Japanese Law Contributes To Consensus Building And To Legitimation Of Norms. Haley's Thesis Will Be Controversial. One Reason Is That It Is At Odds With Most Contemporary Notions Of Japanese Law. Writing At Approximately The Same Time As Haley, Van Wolferen (1989:210- 211) Maintained That The Japanese Still See Law As They Did Prior To 1945 -- As An Instrument Of Constraint Used By The Government To Impose Its Will . . . [l]aws Are Deemed Legitimate By The Populace Only Because They Are Administered By A Class Of People Who Have Always Had The Right To Do So, And Not Because They Conform To Any Popular Sense Of Justice. As It Applies To The Ordinary Citizen, Law Is Still Synonymous With Pain Or Penalty. This Statement Contradicts Haley's Thesis Both As To The Nature Of Law In Japan And As To The Source Of Its Legitimacy. Another Reason Why Haley's Thesis Will Be Controversial Is That There Is Overwhelming Historical Evidence Showing That Law In Japan Was Essentially Coercive At Least Until 1945. During The Edo Period, Law Was Especially Repressive. The Government In That Period Sought To Attain Its Ends, Wrote Noda (1976:36), By Constraining The People To Obey Silently Like Domestic Animals . . . .[the Government's] Attitude Is Expressed Very Clearly In The Tokugawa Political Motto: 'let The People Know Nothing, But Make Them Obey.' . . . The Government Imposed Its Will Pitilessly On The People, Menacing With, And Even Executing, Inordinately Severe Punishments For Disobedience. Page 50 Follows: The Clearest Illustrations Of The Use Of Law In Japan To Coerce Thought And Behavior Occurred Between 1920 And 1945. In 1920, The Japanese Cabinet Decided To Prosecute Tatsuo Morito, A Junior Economics Professor At Tokyo Imperial University, For Publishing An Article On The Social Theory Of Prince Kropotkin. The Article Was Not A Revolutionary Tract; Indeed, Morito Criticized The Flaws In Kropotkin's Theory And Raised Questions About Its Practicality. Further, As Mitchell Has Written (1976:41), Morito Repudiated Violent Means, Suggesting That The Masses Should Be Politically Awakened Through Legal Channels. Nonetheless, Morito Was Convicted Of High Treason And Sentenced To Three Months In Jail. The Government's Purpose In Using The Legal Process To Punish Morito Was Clear: Anyone Publishing Even Discussions Of Radical Ideas Would Suffer Law's Coercive Sanctions. The Morito Case Led To The Peace Preservation Law Of 1925, Which Havens (1978:70) Characterized As The Legal Club For Suppressing Most Dangerous Thoughts. The Law Punished Sedition And Membership In Associations Seeking To Change Japan's National Polity. From 1925 Through 1945, Special Thought Police, Who Were Charged With Enforcing The Law, Arrested More Than 50,000 Japanese Citizens. Many Of Them Were Not Indicted Or Tried Because They Repented And Renounced Their Former Associations And Views After Undergoing Brainwashing And Sometimes Torture. Thus Law In Japan During This Period Was Obviously Used As A Coercive Instrument To Suppress Thought And To Punish Dissenters. The Enforcement Of The Peace Preservation Law Was No Small Operation; In 1941, There Were Approximately 70 Special Thought Procurators Enforcing The Law. If Haley's Thesis Has Little Support Prior To 1945, Is It Valid Thereafter? To Answer That Question With Any Confidence, Well-designed Empirical Research Is Necessary. Haley's Main Contribution Is That He Has Set Forth An Imaginative Thesis For Conducting Such Research. References Havens, Thomas R. Valley Of Darkness. New York: W.w. Norton & Co., 1978. Mitchell, Richard H. Thought Control In Prewar Japan. Ithaca, N.y.: Cornell University Press, 1976. Noda, Yosiyuki. Introduction To Japanese Law. Tokyo: Tokyo University Press, 1976. Van Wolferen, Karel. The Enigma Of Japanese Power. New York: Alfred A. Knopf, 1989. Oxford University Press, USA ISBN-13:,9780195092578 Contents 10 The Japanese Paradox 14 The Elements, Attributes, and Functions of Law 16 Authority without Power 24 Law's Domain 25 1 Emperors and Edicts: The Paradigm of the Administrative State 30 Public versus Private Law Orders and the Primacy of State Interests 30 Secular versus Moral Law and the Pervasive Authority of the State 35 Redefining the Legacy: Japan's Selective Adaptation of Chinese Legal Institutions 40 2 Castellans and Contracts: The Legacy of Feudal Law 44 Early Patterns of Feudal Governance 46 The Feudal Contract 48 Order by Adjudication 49 Impulse toward Power and Autonomy 55 Control through Dependency 56 Power without Authority: Law and the Redefinition of Legitimate Rule 58 3 Magistrates and Mura: The Ambivalent Tradition of Tokugawa Japan 62 Quest for Legitimacy 63 Return to the Administrative State 66 Judicial Governance 68 Autonomy with Dependence: The Enforced Cohesion of the Mura 69 4 Constitutions and Codes: The Making of the Contemporary Legal Order 78 The Meiji Transformation 78 Reform and Reaction 83 The Civil Code Controversy 86 The Meiji Constitution Reconsidered 88 5 Lawsuits and Lawyers: The Making of a Myth 94 Adaptation, Revision, and the Rediscovery of Tradition 96 Advance and Retreat: Lawyers in Prewar Japan 107 Occupation Reforms and Postwar Patterns 116 Autonomy with Security: Freedom from Control as a Scarce Social Resource 122 The Fallacy of America as Model 125 To Sue or Not to Sue 127 6 Policemen and Prosecutors: Crime without Punishment 132 Falling Crime Rates but Chronic Delay 132 Institutional Options 136 Confession, Repentance, and Absolution 140 7 Bureaucrats and Business: Administrative Power Constrained 150 Bureaucratic Influence in Japan: A Comparative Perspective 151 Regulation by Cartel: Origins 155 Occupation Regulatory Reforms 158 Regulation by Cartel: Postwar Pattern 162 A Mission to Manage 164 The Political Limits of Bureaucratic Power 166 Administrative Guidance: A Reflection of Authority without Power 171 The Consequences of Informal Enforcement 175 Consensual Governance 177 8 Hamlets and Hoodlums: The Social Impact of Law without Sanctions 180 Patterns of Community Control 181 The Mura as Model 186 Consensual Sanctions 192 The Dark Side of Social Controls 194 Law as Tatemae 197 Power, Consensus, and Fairness 201 Conclusion: Command without Coercion 204 Notes 212 References 244 Index 262 A 262 B 262 C 262 D 263 E 263 F 263 G 264 H 264 I 264 J 265 K 265 L 265 M 266 N 267 O 267 P 267 R 267 S 268 T 268 U 269 V 269 W 269 Y 269 Z 269 In this book, Haley argues that the weakness of legal controls throughout Japanese history has assured the development and strength of informal community controls based on custom and consensus to maintain order - an order characterized by remarkable stability with an equally significant degree of autonomy for individuals, communities, and businesses.