Book Review

In this volume of the Spirit of the Laws series, John Haley offers a number of "takes" on Japan's legal profession and the judiciary—the law's values, the law's domain, the law's actors, crime, and community are some of the topical chapters of the book—through which he provides the reader with a rich understanding of the specific identity and coherence of Japanese law. The focus is on the culture of the legal profession and the judiciary and on the process within which the field of law thus defined interacts with cultural opinions and values of the society at large.	1
According to Haley, Japan's judiciary provides a valuable and unexplored venue to study legal culture because of some of its special characteristics. Japanese judges are career judges who enjoy a high degree of autonomy and wield more power than any other group in the domain of law. In Haley's words, "The law is what judges say it is. Judges thereby have the last word on what legislators, administrative officials, prosecutors, judges themselves, and even the electorate may or may not legitimately do" (91). Judges do not function simply as umpires ensuring that fairness prevails in the courtroom. Without juries and with minimal reliance on nonlegal specialists they are responsible for determining both the facts of the cases that come before them and the law. In the former function they can rely on the hard work of procurators who have prepared thorough dossiers and usually do not forward cases for prosecution that might result in acquittals. The result is a postwar conviction rate of ninety-nine percent (and the critique that dossiers exercise too much control over the outcome of court cases). Thus prosecutors enjoy wide discretionary powers on whether to initiate prosecution or not, as do police in their decisions on whether to report or not. In their law-determining function judges enjoy a wide latitude when it concerns applying penalties and discretionary authority to divert offenders back into the community, a solution they definitely favor over detention.	2
In their decisions on whether to report, prosecute, sentence, or parole, police officers, prosecutors, and judges rely on precedent and what they hold to be the "sense of society" (a frequently used justificatory phrase). One can easily understand how cultural criteria come to play a very important role in the judicial practice in Japan beyond the familiar considerations regarding the circumstances and nature of the offense or crime or the age of the offender, and so forth. Haley summarizes these cultural factors as "the attitude of the offender in acknowledging guilt, expressing remorse, and accepting accountability by compensating the victim but also the responses of the victim in expressing willingness to pardon and the community to correct" (76).	3
Stereotypically Japan is often portrayed as "group-oriented," a label that certainly has been overused in the past and has lost much of its explanatory power. Haley, however, demonstrates in new and concrete ways how the notion of "community" is a central value in the law's domain. As Japanese, law officials display a sharp sensitivity to social interaction without reliance on absolute ethical categories (16). Conduct is evaluated in terms of social relationships. Thus legal rules are predominantly "used not to maintain relationships but to prevent their termination without mutual consent" (18). This legal disposition is manifest in the handling of marital problems between spouses, labor relations, rental contracts, and business arrangements by limiting contested divorce, unilateral worker discharge, landlord termination of leases, and one-sided rupture of ongoing business relationships. In the process, "community," as Haley calls it, is confirmed. In all these areas, the courts steer the contestants toward negotiated withdrawals, thus empowering the weaker parties to a certain extent against "abuse of rights" and insisting on "good faith" without, however, basing their protection of individual interests on absolute principles of right or wrong. In such an environment, victims are forced into seriously considering pardon as a response to remorse and restitution on the part of the offenders that bars them from adopting "the role of adversary or prosecutor, nor are they enabled to use the formal process vindictively for revenge" (77). In addition, modern Japan has continued its reliance of premodern times on community for law enforcement.	4
Although the procuracy and the judiciary share in practice a good number of fundamental values, they constitute, in postwar Japan, strongly autonomous groups with very little lateral mobility among them. Haley presents a detailed sociological picture of the composition, recruitment, and socialization processes of the judges and in general has very positive things to say about the integrity of the judiciary and the legal system as a whole even though he typifies the court as extremely conservative ("cautious conservatism" [122]). In this he differs from other scholars such as Mark Ramseyer and Frances Rosenbluth (Japan's Political Marketplace) and an important third autonomous legal group, the Japanese bar, which tends to be progressive, activist, reformist, and critical of the system of justice.	5
The existence of a critique of the judiciary that is widely shared among lawyers raises the following question. Japan's 2,600 judges, 2,200 procurators, and 15,000 practicing attorneys alike are recruited through a rigorous examination system from a handful of top Japanese universities into the Legal Training and Research Institute (with a numerus clausus now increased to one thousand from five hundred a decade ago) for a two-year apprenticeship. Whence the critique by the attorneys who share a similar training with the judges and procurators? Could it be a matter of psychology: cautious types choose secure careers as judges, while the more adventurous become attorneys and are antistate? Or could it be that judges reach judgments with a cautious eye turned toward the implications their decisions may have toward their careers? Furthermore, one presumes that the prior university legal training (which is very generalist and located at the undergraduate level) of this elite of about 20,000 legal actors cannot have been politically much different from that received by the more than 150,000 university and college students studying law in Japan, outnumbering the students of any other faculty except for engineering and economics (and nearly four times as many as in the United States ) (41). If Japan, as indeed is the case, has a population with an exceptionally high degree of legal knowledge (yet with comparatively less law, fewer legal actors, and less litigation than other industrial states [21]) and if the lawyers' progressive proclivities are somehow representative of this larger population, one may start questioning the degree to which the Japanese judiciary expresses social values of the larger "national community." This is a question that deserves further exploration.	6
Another historical issue worth examining closer is the striking change in the comparative litigation rates between Japan and Europe, which was higher in Japan during the late nineteenth century but during this century has trailed far behind that of Europe. The rich statistical data Haley occasionally provides would gain in value if it were supplemented with comparative data from other legal traditions. For instance, with regard to the discretionary authority of police and prosecutors, how unique is the estimate that "in the early 1980s the Tokyo Metropolitan District police failed to report about 40 percent of all referable cases" and the fact that "less than a quarter of all cleared non-traffic offenders are arrested. . . . An equal proportion are released without further process" (73)? Is this practice, in its effects, comparable to plea bargaining and, if so, how do the data compare? One wonders also about the opinions of the victims who thereby are denied their day in court.	7
Within the aim that the author has set for himself, namely to look at the spirit, and to a limited extent the practice, of Japanese law through its legal actors, mainly the judiciary, their reasoning and justifications, this book certainly has widened our understanding of the Japanese legal world. The question regarding the reception of this practice by victims and litigants, arguably beyond the scope of this book, remains an issue that needs to be taken up to supplement Haley's study. One wishes, however, that the author had taken more seriously the possibility that the self-representation of the judges as reflections of nationally shared values—different from public opinion, one wonders—their "sense of society," and the "legal mind" they so carefully cultivate, or their preference for "consensus" are ideologically loaded and serve partial rather than generalized interests. In the opinion of this reviewer, Haley takes them too much at face value.	8
Herman Ooms University of California, Los Angeles

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