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Reframing the Japanese Legal System in Comparative Legal Scholarship: Recognising the Role and Function of Socio-Cultural Regula

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Reframing the Japanese Legal System in Comparative Legal Scholarship: Recognising the Role and Function of Socio-Cultural Regula 1 Reframing the Japanese legal system in comparative legal scholarship: recognising the role and function of socio-cultural regulatory norms through legal culture and critical legal pluralism. Rosemary Louise Taylor Fox Submitted in accordance with the requirements for the degree of Doctor of Philosophy The University of Leeds School of Law October 2019 2 The candidate confirms that the work submitted is her own and that appropriate credit has been given where reference has been made to the work of others. This copy has been supplied on the understanding that it is copyright material and that no quotation from the thesis may be published without proper acknowledgement. The right of Rosemary Louise Taylor Fox to be identified as Author of this work has been asserted by her in accordance with the Copyright, Designs and Patents Act 1988. 3 Acknowledgements This thesis would not have been completed without the help and support of so many important and special people. I would first like to thank my supervisors, Dr Jen Hendry and Professor Surya Subedi, for their patience, advice, and support throughout this journey. As my primary supervisor, Jen has been endlessly patient, kind, and believed in me when I had given up on myself. I cannot thank her enough. Thank you to Dr Imogen Jones, my mentor and friend, for starting me on the path to getting well, for helping me put things in perspective, and for her unwavering support, kindness and reassurance. Huge thanks to my fantastic colleagues at the School of Law (especially those on the party floor!) - Alastair, Anna, Yousra, Adam, Lydia, Andrew, Carrie, Sean, Maisie, Amrita, Marika, Olivia, Amanda, Ilias, Rebecca, Craig, Rachael, Josh, Chloe, Alex, Stuart, Tracey, Nick, Rachael, Antony, Jimmy, Mitch, Bev, Priyasha, Steven, Katie, Ben, Chris, Jo, Amanda, Ilaria, Jose, Cesar, Cin, Abi, Maria, Richard, Henry, Priyasha, Konstantinos, Gerry, Elies, Suzanne, and George. I am so lucky to part of such a wonderful community of smart, creative, and compassionate people. Thank you to my fellow PGRs for all the conversations, laughter, and coffee breaks – Jess, Ian, Tahir, Kisby, Magali, Courtney, Clare, Ibukun, Bethan, Jenny, Dooshima, Ruth, Fifa, Ope, Oriana, and Byron. You are all inspiring, magnificent people who will change this world for the better. Good luck on your journeys! Thanks to my wonderful friends and colleagues all across the world – Jess, Robin, Kat, Stu, Sen, Hiroka, Elaine, Vicki, Arwen, Charlotte, Jamie, Emma, Pai, Alice, Chloe, Chris, Linda, Jack, Leona, Thom, David, Lizzie, Sean, Rosa, and Nataly. You are doing phenomenal work and I am so grateful to know you. Thank you to all of my two- and four-legged friends at Guide Dogs for all your support and welcoming me in to the Guide Dogs family. To my beautiful friends – Blair & James, Lottie, Emily, Andy, Chris, Ben, Jim, Georgina, Ros – thank you for reminding me how to have fun, for showing me love and kindness, for drinking wine and chatting into the wee hours. My family – Claire & Ian, Jessica, Zak and Max – you are my home, my heart, and my happiness. Thank you for helping me become the person I am today. 4 Finally, thank you to Stuart, my husband and best friend, for being by my side throughout this adventure, through the tears and laughter, for helping me find the way when I was lost. You are my world. Thank you for everything. This thesis is dedicated to my grandfathers, Fred and Roy, who may not have understood why I chose to write about Japan, but I hope would be proud of me anyway. 5 Abstract In traditional comparative legal studies, Japan has always been considered peculiar or sui generic. Few comparative studies go beyond a doctrinal appraisal of the Japanese legal system and as such this has led to an injurious assumption that Japan is different and strange. This thesis queries this assumption by critically examining the traditional tools of comparative law that create this misreading of Japan, namely taxonomies of legal systems, to demonstrate their underlying Anglo-European biases and ensuing limitations. This thesis then develops a critical comparative approach to the study of the Japanese legal system, underpinned by critical legal pluralism and legal culture, in order to identify and examine the multitude of socio-cultural norms that regulate everyday behaviour in Japan. This thesis contends that there is a tension at the heart of the Japanese legal system, created by a disconnection between its formal, Western-facing law and institutions, and its informal, ubiquitous and powerful socio-cultural norms. This tension is examined by contextualising a case study – lay participation (saiban-in seido) – in legal culture to discover and understand the complex array of interactions between formal law and informal socio-cultural norms. 6 Contents 1 Introduction ..................................................................................................................... 9 1.1 Research Question ...................................................................................................11 1.2 Why Japan? .............................................................................................................17 1.3 Research Perspectives .............................................................................................18 1.4 Contribution ............................................................................................................20 1.5 Chapters ..................................................................................................................22 1.5.1 Chapter Two – Comparative Law Taxonomies and the Need for Critical Comparison .....................................................................................................................22 1.5.2 Chapter Three – Historical Contexts .................................................................23 1.5.3 Chapter Four – The Critical Legal Pluralist Approach and Social and Cultural Norms in Japan 24 1.5.4 Chapter Five – Legal Culture in Japan ...............................................................25 1.5.5 Chapter Six – Case study: Saiban-in Seido .........................................................27 1.5.6 Chapter Seven – Conclusion .............................................................................29 2 Comparative law taxonomies and the need for critical comparison .................................30 2.1 Challenging Taxonomical Frameworks .....................................................................32 2.1.1 Origin and Purpose...........................................................................................32 2.1.2 Taxonomical Methods ......................................................................................33 2.1.3 Problems with categories .................................................................................37 2.1.4 ‘Mixed’ and ‘hybrid’ systems ............................................................................38 2.1.5 Assigning the label ...........................................................................................43 2.1.6 A positive definition? .......................................................................................46 2.2 Japan and the difficulty of ‘fitting in’ ........................................................................50 2.3 Japan on its own merits ...........................................................................................51 2.4 Concluding Remarks ................................................................................................54 3 Historical Contexts ..........................................................................................................56 3.1 The Road to Feudalism (1192 - 1603) .......................................................................58 3.2 The Tokugawa Era (1603 – 1868) .............................................................................59 3.3 The Meiji Restoration (1868 - 1912) .........................................................................65 3.4 The Rise of Modern Japan (1912 - 1990) ..................................................................68 3.5 Constitution .............................................................................................................70 3.6 Features ..................................................................................................................71 3.7 Social and Cultural Norms ........................................................................................74 3.8 History of citizen participation in the Japanese courtroom .......................................77 7 3.9 The Meiji Era ........................................................................................................... 78 3.9.1 The sanza system ............................................................................................. 79 3.9.2 Statutory and Institutional Developments ........................................................ 80 3.10 The Pre-War Era ...................................................................................................... 84 3.10.1 Jury Act 1923 ................................................................................................... 84 3.10.2 Limitations and disincentives ........................................................................... 84 3.11 Post-War and the Okinawan Trials ........................................................................... 87 3.12 Concluding Remarks ...............................................................................................
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