Japan & (and) the Rule of Law

Abstract

JAPAN & THE RULE OF LAW Susan Maslen* INTRODUCTION Japan's code-based legal system is primarily modeled on the civil laws of Germany and France. The Constitution, also, is the product of western influence, namely that of the United States which acted as a bearer of the values of the Allied Forces at the end of World War II. These legislative instruments form the na- tion's written or received law and purport to provide a con- sistent normative structure of all- inclusive rules. Under Japanese law the provisions of the Constitution of 1947 are invio- lable even by legislative means. To this end, the courts are em- powered to scrutinize the constitutionality of all laws, ordinances and administrative decrees. The rule of law is fundamental to Ja- pan's (written) legal system. In addition to the written or formal law, there is a body of disparate unwritten extra-judicial norms, or living law. Living law includes those long-standing practices, customs and informal social norms representative of Japan's indigenous legal tradition. It is the operation and practical application of living law by gov- ernment authorities, the courts and Japanese citizens alike, which creates a gap between the law as it is written, and the way that it is practiced and enforced on a day to day basis. The 'marriage' between indigenous law on the one hand, and Japan's received law and western derived jurisprudence on the other, is in many ways uneasy. Indigenous legal norms may be characterized as influencing the overall effectiveness of received law by supplementing, op- posing, modifying or even undermining it.1 Two examples that demonstrate this characterization are the practice of administra- tive guidance (or gyousei shidou) and the enforcement of Japan's * Final year Law/Asian Studies student at Griffith University (Brisbane Australia). The author wishes to thank Eileen Webb for her suggestions and criticisms of earlier drafts of this paper. 1. Masaji Chiba, Legal Pluralism: Toward a General Theory Through Japanese Legal Culture 54 (Tokai Univ. Press 1989).