By John Owen Haley
This publication deals a finished interpretive research of the function of legislation in modern Japan. Haley argues that the weak spot of criminal controls all through jap historical past has guaranteed the advance and power of casual group controls in accordance with customized and consensus to keep up order--an order characterised through notable balance, with an both major measure of autonomy for people, groups, and companies. Haley concludes through displaying how Japan's susceptible criminal process has bolstered preexisting styles of extralegal social keep watch over, hence explaining the various basic paradoxes of political and social existence in modern Japan.
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Extra info for Authority without Power: Law and the Japanese Paradox
Sample text
47 As the system evolved the crown prince would become emperor at an early age and also retire while still young. Japanese legal historians also point out other significant adaptations. One was apparently a relaxation of the stringent Chinese penalties and rules for prosecution of criminal cases. 50 Nevertheless, it appears that the Japanese were not as bound to a system of meting out exact punishments commensurate with specific offenses. 52 Whatever the explanation, Japanese legal historians generally agree that the ritsuryo, like the T'ang Code, did include separate proceedings for dealing with homicide, robbery, larceny, and other serious crimes as opposed to less serious property offenses.
Such regimes recognize no such entitlement or right to the formal procedures for law enforcement beyond the discretionary control of political authorities. That contemporary public law recognizes citizen rights against the state in effect represents one of the most significant contributions of the Roman private law regime in the transference of the private law process to the public law domain. State control over the process for making and enforcing legal norms assures that state interests prevail.
What would today be classified as criminal cases—actions involving rebellion, theft, brigandry, homicide, rape, violent assaults, and similar conduct—were tried by special bakufu offices in either Kamakura or Kyoto under shomusata procedures. 7 At least by the fourteenth century these suits 40 Continuity with Change were being tried in Kamakura before the monchujo under direct control of the bakufu* Law enforcement by the Kamakura authorities could only be activated by outside complaint or accusation generally, and the process remained subject to the initiative and direction of the litigants.