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Leon Wolff
Faculty of Law, and Australia - Japan Research Centre,
Australian National University
Law is about knowledge. Lawyers impart it; clients seek it. As Susskind explains, few people who engage with the law are concerned with justice itself or the structures and systems that are established for its administration — they want to know what the law is and how it impacts on them:
...[I]t is surely doubtful that clients and other citizens who become entangled in the machinations of the legal system are irreversibly tied to the way in which the law is currently administered — to solicitors in offices; to barristers and judges in the courts; to legal textbooks, journals and law libraries; and to the existing legislative and administrative processes.
In fact, when most people encounter the law, they do so with a fairly clear end purpose in mind and are not so concerned with the nature of the justice system generally. They might, for example, want to make a will, seek a divorce, recover a bad debt, rent out a room, settle a boundary dispute, claim compensation, set up a business, buy or sell a home, or pursue any number of courses of action that they suspect have a legal dimension. Commercial bodies may have more complex requirements. They might want to know if there are legal obstacles, such as regulations, standing in the way of some proposed transaction or project. Or they perhaps need their position in a deal secured through some contractual arrangement. Or, again, a dispute may have arisen, on which advice is sought.
In any of these or similar events, involving individual citizens or business concerns, there is a demand for the input of legal knowledge and experience.[1]
Without doubt, the Internet is revolutionising the way legal knowledge is disseminated. At one level, this is evident in the increasing use by law firms of e-mail and Web pages for the distribution of legal knowledge. At a higher and more important level, the Internet is increasingly becoming the forum of choice for publishing legal information, primary as well as secondary. All this, of course, has implications for researching law.
In this paper, I would like to focus on the implications Internet technologies have on comparative law in general and Japanese law in particular. I will argue that there are four criteria for evaluating whether or not online information about a foreign legal system is of any value: the availability and accessibility of the information; how comprehensive it is; whether or not the information is authoritative and reliable; and (most critically although most indefinite of all) the comparative law merit of the information. I will then apply these criteria to the case of Japanese law on the Internet and suggest that, both quantitatively and qualitatively, Internet-based resources on Japanese law are still in a state of underdevelopment. Finally, I will recommend some strategies for incorporating foreign legal materials on the Internet beyond the simple — and often dangerously misleading — approach of merely listing law-related links.
The importance of Japan as an economic and political leader on the global stage is driving greater interest in Japanese laws. This is particularly so in the current financial crisis gripping most of Asia, including Japan. World attention is focussed on the “Big Bang” package of financial law reforms encompassing wide-ranging revisions to the Banking Act, the Foreign Exchange Control Act, the Jusen Housing and Loan Disposal Measures Act, the Sound Management of Financial Institutions Act and the Deposit Insurance Act. With Japan accounting for almost 75 per cent of the Gross Domestic Product in the Asia-Pacific region, the effectiveness or otherwise of these laws will determine whether Asia will be able to pull itself out of its current economic malaise and prevent global recession.
Foreign interest is also directed to Japan’s competition law and policy and administrative decision-making practices. In an era of harmonisation of laws and a greater push to eliminate legal barriers to free trade, Japan’s laws are the subject of considerable critical scrutiny and searching analysis. In addition, a growing interest in Japan’s recognition of indigenous rights (1997), strengthening of gender equity laws (1998) and proposed increased security presence in the Asia-Pacific region (1999) means that Western engagement with Japanese law is transcending the economic and embracing the political and social. All of a sudden, Japanese law has become an important area of study.
The hunger to learn more about Japanese law is reflected in the exponential growth of scholarship on Japan’s laws and legal institutions since the mid-1980s. As the Internet assumes a growing importance as a rapidly expanding database of information, an interesting issue arises as to whether information on Japanese law is making the transition from print to online.
The simple answer to this is that it is. As Baum and Nottage observe, “an increasing amount of information in English on Japanese law, especially Japanese business law, is becoming freely available at various web sites on the Internet (the World Wide Web)” although the increase “...has not been as dramatic as in the case of published materials...”[2] But does increased quantity necessarily mean better quality? Is the Internet, in its current state, allowing non-Japanese commentators greater access to and understanding of Japan’s legal system and rules?
This time, the answer is not so simple. Much depends on the criteria adopted to judge the quality of Internet-based materials on Japanese law. If, simply, the criterion was the sheer volume — the quantity of information available in cyberspace on Japanese law — then there is no dispute: the Internet offers much for those who want to engage with Japanese law. Detailed link sites such as Luke Nottage’s Japanese Law Links[3] and Temple University Japan’s Resources on Japanese Law[4] clearly indicate the increasing breadth and depth of primary and secondary materials on Japanese law.
In my view, this only tells part of the picture. Oda notes that a critical awareness of Japanese law — indeed, of any foreign legal system — requires not only an understanding of the “law in the books” but also the “law in action”.[5] “Law in the books” refers to the statutes and the regulations, the judicial precedents and administrative decisions, the customs and the treaties that make up the black letter of Japanese law. “Law in action” refers to how law functions in Japanese society. The importance of “law in action” cannot be overemphasised. This is because the way law is enforced, interpreted, applied and used in a society may be completely different from one nation to the next. This has two corollaries: laws may be similar on the books but yield completely contrary outcomes, and laws may be completely different on their face and yet yield remarkably or corresponding results.
If we were to judge the quality of what was available on the Internet in terms of black-letter Japanese law, I think it is relatively incontrovertible that we would apply three basic criteria:
Certainly, more information on Japanese law is becoming available online. But there are some key problems in terms of accessibility and availability. First, much of the important electronic resources is available only on a commercial basis, such as online Japanese statutes and regulations. Second, a vast amount of primary materials, even though digitised, have not been published on the Internet — they are available only as separate commercial electronic databases or as CD-ROMS. This is especially true of Japanese case law. Third, current technology is still insufficient to search and organise Japanese law-related resources. As Baum and Nottage lament:
The Internet is a particularly striking example of a vast amount of information becoming available, without technology developing fast enough to access and organise it effectively... A range of search engine software packages will list quite quickly a number of websites relating to Japanese law when various keywords are inputted. On closer examination, however, some websites contain no tangible information at all. More important ones still can easily be missed. All must be checked for authoritativeness and relevance.[6]
Fourth, much important information on Japanese law remains in Japanese. This present difficulties even for those with Japanese-language competence. Computers that operate on English Windows cannot display Japanese-language character sets. Microsoft has free Japanese-language patch downloads to allow Internet Explorer — and also, coincidentally, Netscape Navigator —to view Japanese-language websites, although they still do not allow foreign-language input (for example, to do native-language searching). Specialist software, such as Asia Surf and KanjiKit, must be installed on computers for this purpose.
Further, lack of comprehensiveness is a concern. Even if we combine what is available in both English and Japanese, there are important sources of Japanese law which are not covered in any depth, if at all. Japanese case law, for example, is a glaring omission from many Japanese law-related websites. Some sites contain summaries (or summary translations) of important decisions, but there is no proper indexing system for these cases, nor are any reasons provided as to why they are important and others not. Japanese customs and academic commentary, also sources of law in Japan, are also largely unavailable.
Finally, in many websites, it is unclear how reliable the legal information is. Information on some websites has not been updated since the 1980s. Official statutes and cases are rare; by contrast, unofficial publications of legislation and edited case notes are more common.
At a more sophisticated level, we also need to interrogate whether the information in cyberspace has comparative law merit — that is, does it provide useful insights into how law functions in Japanese society? Understanding Japanese law is more than just knowing what the law is; it is about how it works. Legislation, judicial decisions and administrative orders are merely starting points. The true value in engaging with Japanese law is to identify how these parts piece together and function as a whole. On the one extreme, it is unlikely that the law will work in the same way as we would expect it to work in Australia — even if the “black letter” is the same, the contextual factors may impinge on the law differently. For similar reasons, Japanese law may not operate as it would in other civil-law countries from which the bulk of Japan’s main codes were borrowed during the late 19th century; foreign legal elements have been adapted, modified, mixed and indigenised. At the other extreme, different laws may produce similar outcomes. And some laws, although written down, may not be enforced and, accordingly, have no operation at all.
For this reason, a mere list of links of Japanese law sources is going to be of minimal comparative law merit. Such a list provides little — indeed, no — insight into how law functions in Japan. For example, a quick review of some Japanese legislation evinces a strong preference for informal resolution of disputes. In areas as diverse as pollution regulation, traffic accidents, sexual harassment and, most recently, bad loans, legislative schemes entrench informal mechanisms for striking a balance between competing claims. But what does this mean? At first, this phenomenon was neatly and perhaps too conveniently explained as a manifestation of “unique” cultural traits in Japan of groupism, harmony and Confucianism. Today, more sophisticated analyses suggest alternative reasons. Some, for instance, argue that deliberate government policy aims to keep issues of social change away from the courts and in the hands of the bureaucracy; others point to structural and institutional barriers which deter people from resorting to litigation. Still others observe that it is just common sense: why should Japanese litigate when they can achieve an outcome through informal mechanisms which are just as predictable as a court case but cheaper and quicker?
And yet, Japanese law-related websites often skip this type of analysis. The result is that the casual surfer is frequently left with an ill-conceived and misinformed understanding of Japanese law — arguably, something which is far worse than absolute ignorance. The surfer is left with the impression either that Japanese law should operate in the same way as in his or her own country or that it is shrouded in some curious “cultural” mystique.
Consider Luke Nottage’s Japanese Law Links.[7] The website, although comprehensive, is entirely devoid of contextual information on the role of law in Japan; it is simply an extensive list of links based on four main categories of providers: governmental organisations, academic institutions, associations, and law firms or individuals. It is unclear why the Web page is structured in this way. For instance, it does not necessarily follow that the categorisation by provider is in order of authenticity of information — an academic institution is no more or less authoritative than a law firm or an association (such as a bar association). Nor is the categorisation an indication of the relative importance of the various sources of law. Thus, within the category of governmental providers, the Diet, the courts and the ministries are all included. Theoretically, statutes are more authoritative sources of law in Japan than both judicial decisions and administrative instruments; at the same time, many argue that judge-made law is largely irrelevant in the Japanese case; others insist that administrative decisions carry the most weight in light of the true operation of government in Japan. Nottage’s Web page does not reveal which, if any, of the above explanations informs the classification of the links.
To encourage the use of the Internet as a means for cheaper and quicker access to Japanese law or, indeed, foreign legal systems generally requires a bi-dimensional strategy. The first prong to the strategy is increasing the quantity of information available online. Foreign governments should be persuaded to throw their weight behind publishing official sources of legal information, from statutes to cases, from governmental policies to administrative decisions, on the World Wide Web.
The second prong to the strategy is contextualising the information. This is especially critical in a setting, such as the World Wide Web, which is seamless and largely free-form. Context adds value. In general, law is deeply rooted in its environment. Economics, politics, culture, gender, language and institutional dynamics both feed into, and interact with, the legal system. These factors are just as important in the case of Japan. Context also ensures balance. When approaching a foreign legal system, it is crucial not to overstate the influence of one factor over another. Too many commentators on the Japanese legal system have uncritically singled out culture as the predominant force in Japanese law — indeed, some have even gone so far as to suggest that Japanese cultural values of harmony, respect for the group and deference to authority mean that law is irrelevant in Japanese society. Not only does this assume that culture is immutable, it also presupposes that Japanese people do not take into account legal norms when they order their business and personal lives. Both assumptions are palpably false.
What this means is that any “links” page on Japanese law must contain more than the mere sources of law. It should also contain links to pages on Japanese politics, economics, institutions, culture and society. Pages should also justify their choice of links. With the Internet growing at a rapid rate, exhaustiveness of coverage is becoming increasingly difficult; selectivity is the key. But the reasons for the selection must be supplied — and must be justifiable on legitimate comparative law grounds.
The Internet, by and of itself, is not magical. It is simply a medium for communicating knowledge. As such, it is important for the long-term health of the Internet that the knowledge transmitted over the Internet has value. In the case of Japanese law, this is particularly important because Japanese law is a key filter through which we can gain a heightened understanding of Japan itself. Most narrowly, understanding Japan’s law helps us in our business dealings with Japan. More broadly, Japanese law provides clues on the functioning and dynamics of Japanese society. Japanese law also provides important insights into our other Asian neighbours — this is because Japanese law serves as a model for other Asian countries wishing to modernise their legal systems. Further, as the world moves inexorably towards economic interdependence, harmonising economic and trade law looms large as an international issue. Even in the throes of economic crisis, Japan is an economic giant and her participation in the process of harmonising law is naturally expected. Finally, engaging with Japanese law also allows us to take our relationship with Japan to a higher level of maturity. We should be sharing ideas — and we can learn much from Japan. Current criminological research on diversionary conferencing, for example, draws heavily from Japanese notions of community policing and “reintegrative shaming”.
For the Internet to be useful to us in our endeavour to learn more about Japanese law, we need to tackle three issues. The first is about quantity — is there enough information freely available online about Japanese law? The second is about quality — is the information reliable, authentic, authoritative? Finally (and this has been the thrust of my paper), the information must have value: does it tell us more about the nature, function and significance of law in Japan — or does it perpetuate myths, reinforce stereotypes or create misconceptions?
[1] R. Susskind, The Future of Law: facing the challenges of information technology, Clarendon, Oxford, 1996, citation pp.1-2.
[2] Luke Nottage and Harold Baum, Japanese Business Law in Western Languages, Rothman, Littleton, Colorado, 1998, pp.3-4.
[3] http://www.law.kyushu-u.ac.jp/~luke/japaneselawlinks.html
[4] http://www.tuj.ac.jp/law/lawresources.html
[5] Hiroshi Oda, Japanese Law, Butterworths, London, 1992, p.1
[6] Baum and Nottage, op cit.
[7] http://www.law.kyushu-u.ac.jp/~luke/japaneselawlinks.html
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