I) Formalist Theory 3 changes in culture
A) 16th century – Tokugawa – Disputes were settled by administrative magistrates / judges – these administrative magistrates sat in Tokyo after centralization of authority
B) Meji revolution-Japan looks to France & Germany, develops a constitution & code – borrows from these countries because they view their law as most advanced
II) Japanese approaches to law
A) Traditionalist theory. Pg 16
1) Focused on apology to improve situation
2) Avoid confrontation
3) Rather forgo legal rights than disturb harmony
(a) However, Japan does file patents. 4x more than US.
B) Revisionist theory- More interested in law. harmony is glue holding society together – reason people do not assert their rights, though, is that system is so inept that people do not bother to even try to assert their rights – lawsuits take long, negative stigma. Pg 17.
C) Rationalist-System works so individuals don’t have to be conscious of legal rights. They can avoid mess of litigation.
D) Informalist -(professor Wilson thinks there is no one reason.
1) Perhaps system is so predictable that parties settle without need to litigate.
2) Litigation takes time & is expensive but this seems to be true in almost all countries having modern judicial systems & can hardly account for specifically strong inclination of Japanese people to avoid courts.
3) Low damage awards
4) Don’t want to make fault clear
5) Don’t want to go against hierarchical relationship. Ex. Customer & seller.
6) Rule of law- societies eagerness to comply with law
III) Kogiki-history of how Japan was created with gods that had emperor.
1) Believe they are only nation that has string of descendants back to gods.
VI) SOURCES OF LAW- Rule of Law- People voluntarily abide by law?
A) In Meiji Restoration what did we have? Perhaps an example of rule by law
B) Constitution – Constitution. Sealed Legislative history.
1) Article 31 of Japanese Constitution – due process includes life & liberty
2) Article 29 – property (with a similar reference to eminent domain)
3) Look at article 13 – talks about respect of all individuals & their life, liberty, & pursuit of happiness
C) Statutes- 6 different codes. Roppo zensho. Should not disagree w/ treatie
1) Civil Code
2) Commercial Code
3) Civil Procedure
4) Criminal Code
5) Criminal Procedure Code
6) Penal Code