Colin P.a. Jones, Kaoru Inoue's Shihō No Shaberisugi (blabbermouth Judiciary): Moral Relief, Legal Reasoning and Judicial Activism in Japan

• Citation: Vol. 19 No. 3
• Publication year: 2005

BOOK REVIEW

KAORU INOUE'S SHIHŌ NO SHABERISUGI (BLABBERMOUTH JUDICIARY): MORAL RELIEF, LEGAL REASONING AND JUDICIAL ACTIVISM IN JAPAN

Colin P.A. Jones^*

Those who subscribe to the notion that the Japanese have a cultural aversion to litigation may be surprised by the decision of the Shinchosha publishing company to add to its shinsho series of popular non-fiction paperbacks, Shiho no shaberisugi ("Blabbermouth Judiciary"), a book devoted exclusively to criticizing the way Japanese judicial opinions are written.¹That the book regards this seemingly esoteric topic as an issue that threatens the very foundations of modern Japanese society and includes analogies to Nazi propaganda tactics may also be unexpected. Those who view the Japanese judiciary as a rigidly hierarchical bureaucracy that tolerates no dissent may additionally be surprised that the book was written by a practicing judge.²

Summarized briefly, Judge Kaoru Inoue's thesis is that many of the decisions issued at all levels of the Japanese judiciary contain too much unnecessary dicta.³Furthermore, judges too often decide cases on procedural grounds. These two conclusions are the essence of Inoue's argument. How he fills a 186-page book with its exposition reveals as much about the judiciary and the legal system in Japan as it does about the subject of judicial opinion writing. And without intending to do so, he brings to our attention what may be a key role of the institutionally weak Japanese judiciary: its ability to award litigants what I will call "moral relief," the significance of which can be greater than the judicial remedy actually sought (and denied), particularly in suits against the government.

The book begins with an example. Victim (V) is found dead in a park, hanging from a tree. Y, a coworker of V is suspected and arrested for murder. Although Y has no alibi for the time of death, and is known to have gotten on badly with V at work, there is no evidence directly implicating Y and the police eventually release him. Twenty years pass and, out of the blue, Y finds himself the object of a suit in tort by V's son (S) for the wrongful death of V. A civil trial ensues at which voluminous evidence and witness testimony is presented. After three years of proceedings, the trial court issues a judgment rejecting S's claim for the simple reason that the applicable statute of limitations has expired. However the judgment also includes a finding to the effect that Y did in fact kill V. Since Y has "won" the trial, his appeals protesting his innocence of the killing are rejected. He is free to go, yet at the same time has been officially and publicly branded a murderer.⁴

It is only at the end of the chapter that Inoue reveals this example to be a hypothetical one.⁵If the reader feels manipulated, it is probably because the story seems so plausible, at least to those familiar with the Japanese legal system. Having revealed the artifice, Inoue refers to it again and again throughout the book to prove his larger point, as if repetition will turn it into a real example, rather than weakening his arguments. It is unfortunate that it does weaken his arguments, because he does go on to give examples from real cases, including a number of Japan's most well-publicized post-war trials. Four are summarized below:

Kazuyoshi Miura Murder and Defamation Trials. Kazuyoshi Miura was arrested in 1985 for the 1981 murder-for-hire of his wife in Los Angeles. Although he was initially found guilty and sentenced to life in prison in 1994, he was acquitted on appeal in 1998.⁶Miura went on to launch (and prevail in) hundreds of defamation lawsuits against the media organizations which had wrongfully portrayed him as a killer.⁷He also sued the Tokyo prefectural government on the grounds that the manner in which he had been arrested by the police-perp-walked in front of the media-was illegal. Miura lost this suit, on the grounds that his claim was barred by the applicable statute of limitations. Nonetheless, the court's opinion included dictum concluding that the conduct of the police carrying out his arrest had been illegal.⁸This highly- publicized pronouncement put police throughout the country on notice that they might be held liable if similar incidents occurred in the future.

Akuma-chan Trial. A father went to his local municipal office to file a registration of the birth of his son in his family register, as is required by law.⁹

The name he registered his son under, however, was "Akuma" (Devil). Although the filing was accepted and the child was initially registered under that name, the required official seal was not affixed, and a notation of "name pending" was added, presumably by municipal workers more concerned than the father about his child's future well-being. The father brought suit to have the pending notation removed, and the child duly recorded in the family registry as being named Akuma. The trial attracted a great deal of media attention, with debate focusing on whether the father was abusing his parental naming authority (meimeiken no ranyo). The case was decided in 1994 and the Tokyo District Court (Hachioji branch) found that naming his child Akuma was an abuse of the father's naming authority, and that the local government authorities would have been justified in refusing to accept the registration filing. However, having accepted the filing, it was unlawful of them to unilaterally amend the notation in the family registry.¹⁰The father won on procedure, but lost in substance. While a single municipality lost this particular case, it essentially authorized all local governments to reject future registrations of unacceptable names.

Iwate Prefecture Yasukuni Shrine Case. The Yasukuni Shrine, where the sprits of Japan's dead soldiers and sailors (including a number of convicted war criminals) are enshrined has long been a source of controversy in Japan.

In a trial by taxpayers contesting the constitutionality of the expenditure of public funds in connection with a shrine visit by members of the Iwate Prefectural Assembly, the Sendai High Court ruled in 1991 that although the expenditure did violate Article 20-3 of Japan's constitution (which prohibits state involvement in religious activity), the defendant in the case, the governor of Iwate Prefecture, could not be held liable without a showing of willful or negligent conduct in his supervision of the government department responsible for approving the expense. Technically the case was a victory for the defendant, but since the relief sought by the plaintiff (the return to...