The Development of Jury Service in Japan

A square block in a round hole?

Anna Dobrovolskaia

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317035978
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book presents a comprehensive account of past and present efforts to introduce the jury system in Japan. Four legal reforms are documented and assessed: the implementation of the bureaucratic and all-judge special jury systems in the 1870s, the introduction of the all-layperson jury in the late 1920s, the transplantation of the Anglo-American-style jury system to Okinawa under the U.S. Occupation, and the implementation of the mixed-court lay judge ( saiban'in ) system in 2009. While being primarily interested in the related case studies, the book also discusses the instances when the idea of introducing trial by jury was rejected at different times in Japan's history. Why does legal reform happen? What are the determinants of success and failure of a reform effort? What are the prospects of the saiban'in system to function effectively in Japan? This book offers important insights on the questions that lie at the core of the law and society debate and are highly relevant for understanding contemporary Japan and its recent and distant past.

1 Introduction

Why does legal reform happen? Is it triggered by a preceding change in society, as legislators become aware of the necessity to adjust the legal system to a new social reality, or does the law more frequently act as a tool for changing society? Is the discussion of social change at all relevant to the analysis of legal reform, or should law be understood not as the natural outgrowth of a particular society but as an intellectual creation of lawyers that is not socially determined and is therefore easily transferable to other countries? What are the determinants of success and failure of a legal reform? These questions lie at the very core of the ongoing academic debate regarding the origins and nature of law.

Japan’s legal system is a good case study for attempting to address each of these questions. First, both the Japanese legal system and society have undergone several radical transformations since the mid-19th century, which implies that a significant amount of relatively recent documentary sources are available for conducting such an enquiry. Second, each of the groundbreaking developments in Japan’s legal system involved selective borrowing from foreign jurisdictions. This in turn makes it possible to attempt to evaluate the effectiveness of legal transplants in the Japanese context.¹

Japan has witnessed three “revolutionary” developments in its legal system and society since the mid-19th century. The first major change coincided with the Meiji Restoration of 1868 and resulted in the introduction of the concept of individual rights and the promulgation of a Western-inspired constitution (the Meiji Constitution of 1889), through which Japan embraced Continental jurisprudence.² Another development was triggered by World War II and the Allied occupation that brought along the democratization of the Japanese society and the drafting and promulgation of a new constitution (the Shōwa Constitution) in 1946. At the end of the 20th century, Japan’s legal system appeared to be on the verge of yet another radical transformation as the government of Japan displayed a strong willingness to reform the legal system. In July 1999, the Cabinet established the Judicial System Reform Council (JSRC) with the aim of debating and making recommendations regarding the possibility of fundamental legal change.³ In 2000, Research Commissions on the Constitution (Kenpō Chōsa Kai) were set up in both houses of the National Diet. Five years later, Special Committees for Research on the Constitution of Japan (Nihon Koku Kenpō ni kansuru Chōsa Tokubetsu Iinkai) were established, and on May 14, 2007, the Law Concerning the Procedures of Revising the Constitution of Japan⁴ was passed by the Diet, making the amendment of the world’s oldest unrevised constitution less distant a prospect.⁵ The provisions of the Meiji Constitution and the reforms that accompanied its promulgation were heavily influenced by Western thinking;⁶ the drafting of the Shōwa Constitution of 1946 and subsequent reforms were carried out under the direct control of the Allied occupation forces;⁷ and the preparation for the latest round of reforms also involved elements of adopting from other jurisdictions.⁸

Analyzing the judicial system of Japan in its entirety is problematic. Focusing on one aspect of the legal architecture, on the other hand, should make it possible to draw important conclusions with regard to the development of society and law in Japan. This book chooses the past and present efforts to expand lay participation in Japan as its area of focus. While lay participation in the judicial system can take various forms, this study focuses on the institution of jury service.⁹

Two principal models of jury systems exist in the world: the Anglo-American model and the Continental-European model. The Anglo-American model provides for the formation of an all-layperson jury panel that is composed of six to twelve jurors who are selected at random from the local population, whose task is to make decisions on the questions of fact and to come up with the verdict of guilty or not guilty independently of the judge.¹⁰ The Continental-European model, on the other hand, involves the creation of a mixed-court panel where jurors and professional judges sit together in a single panel and jointly make decisions on the questions of fact and law.¹¹ Jurors in the Continental-European model (or “lay assessors” as they are sometimes called) are not selected at random from the list of persons eligible to vote to serve on one case only, as is the case in the Anglo-American model of jury trials, but are instead nominated by local authorities to serve a fixed term.¹²

The Anglo-American model of jury trials is also referred to in the literature as the “adversarial jury” system. Indeed, this model of jury trials is used predominantly in countries that have the adversarial system of justice – that is, a system of law that relies on the skills of each advocate representing his or her party’s positions and where the judge’s role is that of a referee between the defense counsel and the prosecutor.¹³ Countries using the adversarial system of justice are the United States, Britain, and several other common law countries.¹⁴ The Anglo-American model of jury trials fits in well with the principles of adversarial justice. After all, this model provides for a jury panel consisting exclusively of laypersons; outsiders who have no connection to the criminal justice system apart from their service as jurors and who consequently lack the incentive to abuse their power are perfectly placed to carry out the role of impartial referees in adversarial trials.

Countries using the inquisitorial system of justice – that is, a legal system where it is the judge rather than the prosecutor and the defense counsel who is the active party – on the other hand, have historically been reluctant to adopt the Anglo-American model of jury trials.¹⁵ Indeed, some features of inquisitorial procedure conflict with elements important to trial by jury as understood by the adversary process.¹⁶ Specifically, under the inquisitorial system, where the judge is the active party, it may be difficult for jurors to arrive at their decisions on questions of fact independently. In addition, the inquisitorial system heavily relies on the expertise of court officials, and professional judges working within the system may be unwilling to allow the result of their work be potentially overturned by a group of laypersons.¹⁷ In view of these elements of inquisitorial procedure, it is not surprising that many countries using this system have chosen to implement the Continental-European model of jury trials, where laypersons and professional judges make decisions together regarding the verdict and sentencing in cases. The role of laypersons on these mixed-court panels is to broaden the perspectives of professional judges and help limit elite bias rather than act as triers of fact expected to reach a rational and impartial verdict independently.¹⁸ The inquisitorial system is generally adopted in civil law countries, such as Germany and France, among others.¹⁹

The alternative to trial by jury is trial by professional judges alone, and many countries using the adversarial system of justice and those that have the inquisitorial system as a means for dispute resolution have chosen not to introduce jury trials.

The debate regarding the virtues and vices of citizen participation in the administration of justice is as old as the institution of jury service itself.²⁰ Opponents of the institution of jury service make several arguments. First, they claim that laypersons are not good at judging, and that making decisions regarding the fate of the accused should be done by professionals who were especially trained for that purpose. Second, they argue that citizens may be biased and irrational in their decision-making. Third, implementing the institution of jury service is costly, as jurors need to be paid for their services.²¹

Proponents of layperson participation, on the other hand, have argued that jurors are actually good at fact-finding despite their lack of professional training. Several studies have found based on the evidence from the United States that in both criminal and civil cases verdicts returned by the jury were in agreement with the judge’s verdicts in three-quarters of instances.²² In addition, the supporters of the jury system have emphasized the fact that jurors – being complete outsiders to the system – are free to return unpopular verdicts, unlike judges who might face government retribution, such as an assignment to an unimportant court.²³ Furthermore, the jury system has been praised for its value as a democratic institution. The institution of jury service allows citizens to directly participate in the administration of justice and therefore serves as a vehicle for citizen empowerment.²⁴ As the French statesman Alexis de Tocqueville noted in his travels through 19th-century America, the jury system may be viewed as “a political institution … [as] one form of the sovereignty of the people”.²⁵ He praised this institution for investing “each citizen with a kind of magistracy” and for making “all feel the duties which they are bound to discharge towards society and the part which they take in its government”.²⁶

Japan is a civil law country that has witnessed efforts to expand lay participation in court proceedings several times over history.²⁷ The idea of allowing laypersons to participate in the adjudication of cases first reached Japan as early as the 8th century AD through Chinese classical texts. The notion of the jury as a legal institution, however, was first introduced to the country in the middle of the 19th century, when Japan turned its attention to learning from the West after a period of seclusion. Japan became familiar with both the Anglo-American and the Continental-European models of jury trials through the documents written by foreign scholars describing the political and legal systems of Western countries and the written accounts of Japanese bureaucrats who were sent abroad to learn about the political and legal institutions of other countries after the Meiji Restoration.

The first attempt to introduce the jury system in Japan dates back to the first decade of the Meiji period – the early 1870s – when the Ministry of Justice discussed the possibility of implementing trial by laypersons on the experimental basis in cases of extraordinarily complex nature. As the result of deliberations, however, Japan chose to introduce not the layperson jury, but two alternatives: the “bureaucratic jury” (kan’in baishin or sanza) system (a jury that consisted not of laypersons, but of bureaucrats appointed by the government); and what may be called the “judge-only jury” (a panel consisting of twelve professional judges who deliberated the facts of the case and came up with the verdict). The “bureaucratic jury” system was used in only two civilian trials and in several military tribunals in the 1870s, while the “judge-only jury” was used in one civilian trial that took place in 1879.

The first reform introducing trial by laypersons in Japan was implemented half a century later, in the 1920s – a time associated with the popular movement towards democratization known as “Taishō Democracy”.²⁸ Japan’s pre-war Jury Act was enacted in 1923 and became operative in 1928. The jury system that was implemented in pre-war Japan had some peculiarities that distinguished it from the systems of lay participation used in other countries at the time. Specifically, the twelve-layperson jury panels in Japan did not yield a verdict of guilty or not guilty, but instead were required to give answers to the questions submitted to them by the judge regarding points of fact. The answers of the jury ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface
• List of abbreviations
• List of illustrations
• 1 Introduction
• 2 The pre-war history of the concept of trial by jury in Japan
• 3 The pre-war jury system
• 4 Attempts to introduce the jury system in Japan’s colonial possessions
• 5 The occupation years: Attempts to introduce the jury system
• 6 The mixed-court jury (saiban’in) system in contemporary Japan
• 7 Conclusions
• Bibliography
• Appendix
• Index