Policymaking by the Japanese Judiciary in the Criminal Justice Field
Hōshakaigaku [Journal of the Japanese Association for Sociology of Law], Vol. 72, pp. 6-47 (2010)
20 Pages Posted: 4 Mar 2015
Date Written: 2010
In contrast to courts in the United States, the Japanese judiciary frequently is regarded as a paragon of judicial restraint. Japanese judges, it is widely thought, defer to policymaking by the legislature and bureaucracy; they are loath to make policy themselves. This characterization, I would submit, misses a good deal of conduct by the Japanese judiciary. In matters of private ordering, at least, the Japanese judiciary frequently has played an important role in creating norms.
In this paper, I turn to the criminal justice arena. The Shiratori case of 1975 stands as a prominent example of top–down shaping of norms by a single Supreme Court decision. One can offer a few other examples of judicial decisions that have expanded protections for suspects and defendants. On the whole, however, the Japanese courts have followed a conservative approach in criminal justice cases.
Despite its apparent caution, the Japanese judiciary has helped to shape criminal justice policy. It has done so based on a very different conception of the criminal justice system from that in the United States, a conception that is heavily influenced by a stance of deference to the prosecutors. After discussing the basis for this conclusion, I will offer some thoughts on the underlying reasons for the different postures of the U.S. and Japanese courts, and close by discussing recent developments suggesting a modest shift in the stance of the Japanese judiciary.
Keywords: criminal law, criminal procedure, judicial restraint, judicial deference, criminal justice, judges, judiciary, courts, retrial, new trial, right to counsel, confrontation, hearsay, discovery, confessions, adversary system, bail
Suggested Citation: Suggested Citation