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

See all articles by Daniel H. Foote

Daniel H. Foote

University of Washington - School of Law; University of Tokyo - Faculty of Law

Date Written: 2010

Abstract

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

Foote, Daniel H., Policymaking by the Japanese Judiciary in the Criminal Justice Field (2010). Hōshakaigaku [Journal of the Japanese Association for Sociology of Law], Vol. 72, pp. 6-47 (2010), Available at SSRN: https://ssrn.com/abstract=2572685

Daniel H. Foote (Contact Author)

University of Washington - School of Law ( email )

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HOME PAGE: http://www.law.washington.edu/Directory/Profile.aspx?ID=221&vw=bio

University of Tokyo - Faculty of Law

7-3-1 Hongo Bunkyo-Ku
Tokyo, 113
Japan

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