Learning from Precursors, Shaping It from Experiences

Abstract

I am honored to have opportunity to comment on Professor Valerie Hans's presidential address on jury trial as a legal transplant. In her address, Professor Hans presents a panoramic view of the global dissemination of institutions of lay participation starting from newest jury systems Argentina, going back to origin of jury trial England, then going on to dissemination of jury to English colonies and countries conquered by Napoleon and to recent waves of dissemination of lay participation Europe and East Asia. She also emphasizes important roles scholars played international collaborations to understand process of transplanting legal institutions, which in some instances help to shape political debates over adoption and implementation of... jury trials and mixed courts around globe. As she describes, Japan recently introduced a mixed panel of lay judges sitting together with professional judges. Drawing upon Japanese experiences, I would like to bring a different point of view to Professor Hans's discussion of juries as traveling legal institutions. After a close overview of recent experiences with lay participation Japan, I argue that countries learn from their experiences, and adapt legal institutions into vernacular. (See also Levitt and Merry's [2009] work on human rights frames and vernaculars.)Legal transplants or is a common theme for Japanese scholars, as Japan imported French law at beginning of modernization, German law since legislation of Imperial Constitution modeled on Prussian law, and American law after Second World War. This history of legal transplants has led Japanese legal scholars to be comparativists. I would like to discuss how a of lay participation and its process looks to a sociolegal scholar.Professor Hans pointed out that term transplant is contested. As she suggests, translation better captures process of adapting. Transplant brings to mind organ transplants. In medicine, a replaces a failed organ a body. The metaphor implies that new organ is healthy and expected to function within body, with some amount of expert support. However, we know that a legal institution brings both benefits and problems. From a law reform perspective, unknown nature of outcomes is why we seek empirical evidence. The term, transplant assumes health of a legal institution, and we tend to argue for or against original whole without really considering social conditions new locale. Rarely do we a whole institution. We might remove a part of original and add a part taken from another whole to original. What is finally transplanted is likely to be different from original. Transplanting can take a long time, as a legal institution lives much longer than a human being.This essay will now turn to long process of bringing lay participation to Japanese legal system.Japan's Introduction of Lay Participation: A Political Context for a ProcessThe Argentine case Professor Hans discusses illustrates importance of process and context. Japan also has had a long complex encounter with juries. In Japan public discussion of jury trials began when idea of democracy was introduced soon after beginning of modernization late nineteenth century. In late 1870s, when new governing system based on parliament and cabinet was planned, government considered introducing jury trials and Freedom and People's Rights Movement also advocated jury trial (Mitani 1980: 94-132). Despite its name, movement included only Shizoku [Swordsmen] and landlords as counter elites to national government officials (Banno 2014: ch. 1). The government did not bring jury trials to Japan.Next, early 1920s Prime Minister Hara considered coopting demands for vote for all men by introducing jury trials to allow public participation governing (Mitani 1980: 143-150). …