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Session 199: Philosophy, Law, and Social Reality: Ancient Chinese Values in Contemporary Japanese Law

Organizer: Michiko Y. Aoki, Clark University

Chair: Setsuo Miyazawa, University of Kobe

Discussants: John Ohnesorge, Harvard University; Michiko Y. Aoki, Clark University

Chinese thought, whether its political philosophy or religious practice, had deep influences in the formative period of Japanese law. Even today, these influences are evident in the ways in which Japanese law grapples with changing social reality. At the same time, the social reality of contemporary Japan departs from Chinese thought. For this reason, new conditions defining social reality in Japan can not adequately be explained by Japan’s inheritance from the past. In order to illuminate these matters, this panel investigates intellectual history and relates it to contemporary issues.

First, Susan Weld presents hitherto unknown ancient Chinese documents which relate to the early Chinese attitude towards law, philosophy and religion. Hiroshi Asako investigates the practices of Japanese penal code which inherited Chinese principles. He specifically discusses the relationship between "voluntary surrender (jishu)" and "confession (jihaku)" in criminal procedures. He analyzes the processes by which lawmakers of the early Meiji period agonized over the differences in concept between the law of the East and the West. Nobuto Yamaguchi pursues the issue of brain death and questions why Japanese authorities and ordinary people alike are so reluctant to utilize the advanced medical technology such as organ transplants. An age-old mentality lingers on not only in Japanese philosophy and law, but also in everyday life, especially that of women, as can be seen as Joanne Baldine investigates issues of individualism in relation with Equal Employment Opportunity Act.

Together, these four papers explore the complex relationship between past and present in contemporary Japan, and they demonstrate the continuing relevance of the past even in our modern high-tech world as it races toward the twenty-first century.

Voices from Graves: Chu Law and Philosophy

Susan R. Weld, Boston College

An old cliché, still often heard from both Westerners and Asians, states that there is something in the nature of Chinese philosophy inherently inimical to the development of law. Archaeological excavations in the past few decades have yielded documentary sources that shed new light on this issue. Among the best preserved and most important of these writings are the legal records from grave #2 at Baoshan and the philosophical texts from grave #1 at Guodian: contemporary graves located in the suburbs of the capital of the Warring States kingdom of Chu in today’s Hubei Province.

The tomb at Baoshan held the working archive of its occupant, a high-level legal official from a clan closely related to the royal house. It included lists and reports of cases on topics ranging from property rights to trespass, kidnapping and murder. The cases shed light on Chu legal procedure, covering matters such as preliminary hearings, failure to appear in court, testimonial capacity and judicial oath. The same grave contained records of the grave master’s last illness: questions he had his diviners pose to the spirits about the cause of his worsening health and records of the prayers and sacrifices prescribed to cure him. The other grave, the tomb at Guodian, contained chapters from the Daodejing (the root classic of Daoism), selections from the Liji (a Confucian classic) and previously unknown philosophical texts, reminiscent of these and other streams of Early Chinese thought.

This paper will explore the evidence from these graves as to how the three worlds of religion, law and philosophy may have interacted in China’s axial age.

Voluntary Surrender and Confession in the Criminal Procedures in Modern Japan: Legacy of Tang Code and its Ramifications

Hiroshi Asako, Waseda University

Modern Japanese criminal law contains two radically different philosophical principles: one is the protection of human rights, the other is harmony and maintenance of the social order. The latter principle finds its basis in eighth-century Japanese penal law, or ritsu, modeled after the Tang penal code. In keeping with Confucian precepts, Tang code held that criminal offenders could be rehabilitated by means of education, and that punishment was such education. However, this principle presupposed confession of guilt to establish a case. It meant that a great deal of effort was made to have the accused confess guilt regarding the charges pressed against him. On the other hand, offenders who voluntarily surrendered themselves and willingly admitted their crime, though it was yet to be discovered, could be exempted from punitive actions. This was because the authorities regarded such offenders as having already repented and become conscientious members of the community.

In the mid-19th century, the criminal procedure that the accused could not be found guilty without confession was unacceptable in the eyes of Western experts because this would result in the willful use of torture on the part of law enforcement officers to obtain confessions. However, the Western experts accepted voluntary surrender as a basis for leniency, though their moral/philosophical reasoning was not the same as that of the Japanese. This paper discusses the background and course of events through which the first modern-style criminal law materialized in Japan.

Controversy Over Brain Death and Organ Transplants in Japan

Nobuto Yamaguchi, Yamaguchi & Nagahama

Japan differs from the west in the way in which it views matters such as brain death and organ transplants. In this paper, I intend to analyze the reasons for this attitude and clarify Japanese positions on these matters.

Being a nation whose traditions do not hold that the essential portion of human life is limited to the activity of the brain, the Japanese have such respect for the dead that they do not allow bodies to be handled in any irregular manner. Three religious doctrines seem to be responsible for this behavior. Confucianism, which the Japanese adopted as early as the seventh century, cherishes the human body, dead or alive, as the inviolable gift from one’s parents. Shintoism, which adopted substantial elements from both Confucianism and Daoism into its doctrine, does not accept one’s death as the terminal point of existence. In Shinto beliefs, one’s physical death does not end his connection with this world. As in Daoism, heaven is thought to be a world similar to this one, and hence, people believe that the dead travel between this and the other worlds. The dead need to have the body intact. Buddhism, on the other hand, appears to hinder the practical side of medical technology by requiring a long period of time for funeral observation. In this case, even if doctors could obtain flying organs from the person declared dead, it is impossible to perform organ transplantation successfully.

More practical aspects of the problem lie in such matters as organ trading, abuse by physicians, or unfair distribution of transplantable organs. As Japanese beliefs do not clearly define the turning point of death from life, it will be a long time before the practice of organ transplants takes root in Japanese soil, although these problems are not insurmountable.

Status of Women in Japanese Law: The Heritage of Reluctant Individualism and its Relation to Fair Employment Practices

Joanne Baldine, Harvard University

Japanese law since the Meiji restoration has been dominated by the incorporation of Western law and legal science, principally French, German and American. However, Japan has been reluctant to wholly incorporate the Western concept of individual rights, on which Western legal models rely. Chinese thought, especially that of Confucianism, has profoundly influenced Japanese social structure to favor relationships over individuals as the favored unit of importance. This ancient practice has rooted deeply in Japanese culture certain expectations about women and their place in society. In modern day Japan, the legal reception of the concept of individual rights has been both ambiguous and reluctant. Consequently not all individuals count equally before the law and this has especially affected women. This is evident in the application of the Japanese Equal Employment Opportunity Act of 1985.

If the EEO Act has not enhanced a woman’s rights to work, her right to fair employment practices, or ultimately, her right to be an individual, the reason must be sought beyond the wording of the law. Especially ambivalent (and illuminating) is the view promoted by the Ministry of Labor, that women’s work should harmonize with their role within the family. The disparity between cultural expectation and law might be explained by traditional Confucian or modern communitarian philosophy, which suggests that the good of society, rather than the happiness of the individual, should be the preeminent value. However, it is not clear whether a philosophical commitment to Confucian or communitarian conceptions of the self, which leaves the status of women unimproved, or whether prevailing economic and political interests favor this outcome.