Vol. 3 No. 6 (June, 1993) pp. 49-50
AUTHORITY WITHOUT POWER: LAW AND THE JAPANESE PARADOX by John
Owen Haley. New York: Oxford University Press, 1991, 228 pp.
Reviewed by David J. Danelski, Department of Political Science,
Stanford University.
The thesis of this fascinating book is that law in Japan is
essentially authoritative command rather than coercive sanction.
As a result, Japan relies principally on informal mechanisms to
maintain order in its society. The state is nonetheless
interventionist, but its capacity to control and maintain order
depends on its ability to persuade and to achieve legitimating
consensus. In this process, law is more a tool of achieving
consensus than a coercive instrument of control. "Order is
thereby maintained," Haley concludes, "and a rule of
law by command without coercion prevails." (p.200)
Haley's argument begins with a series of historical essays
interpreting Japanese legal history. The main point of the first
essay is that the emperor's adoption of the Chinese penal codes
(ritsuryo) early in the seventh and eighth centuries made
Japanese law authoritative as well as coercive. In his second
essay, Haley argues that authority and power separated when
Japanese emperors became figureheads and military clan leaders
and shoguns wielded the state's coercive power. In his third
essay, Haley observes that the autonomy allowed to the rural
villages (mura) during the Tokugawa period resulted in informal
rather than legal controls regulating social behavior. In his
final historical essay, Haley argues that the Meiji Constitution
was defective because it centralized all legal powers in the
person of the emperor who by convention could not or would not
exercise them. The consequence, says Haley, was "a failure
of political integration and a fatal fragmentation of governance.
Western legal forms were unable to express or articulate the
basic premises of the Japanese political tradition, the
separation of power from authority."(p.80)
Haley continues his argument in four additional essays discussing
law in modern Japan. The essays cover four topics-- litigation,
criminal justice, governmental regulation of business, and social
control in villages and criminal gangs. These essays were, for
the most part, published earlier as articles. As a result, some
of them are more relevant than others to Haley's thesis, but all
merit careful reading, for they contain many insights concerning
law and social control in Japan. In so far as they bear on
Haley's thesis, these essays show that the Japanese judiciary is
institutionally weak, that the system of informal social controls
of the mura have in effect become the predominant pattern for
governance in the nation, and that Japanese law contributes to
consensus building and to legitimation of norms.
Haley's thesis will be controversial. One reason is that it is at
odds with most contemporary notions of Japanese law. Writing at
approximately the same time as Haley, van Wolferen (1989:210-
211) maintained that the Japanese still see law as they did prior
to 1945 -- "as an instrument of constraint used by the
government to impose its will . . . [L]aws are deemed legitimate
by the populace only because they are administered by a class of
people who have always had the right to do so, and not because
they conform to any popular sense of justice. As it applies to
the ordinary citizen, law is still synonymous with pain or
penalty." This statement contradicts Haley's thesis both as
to the nature of law in Japan and as to the source of its
legitimacy.
Another reason why Haley's thesis will be controversial is that
there is overwhelming historical evidence showing that law in
Japan was essentially coercive at least until 1945. During the
Edo period, law was especially repressive. The government in that
period sought to attain its ends, wrote Noda (1976:36), "by
constraining the people to obey silently like domestic animals .
. . .[The government's] attitude is expressed very clearly in the
Tokugawa political motto: 'Let the people know nothing, but make
them obey.' . . . The government imposed its will pitilessly on
the people, menacing with, and even executing, inordinately
severe punishments for disobedience."
Page 50 follows:
The clearest illustrations of the use of law in Japan to coerce
thought and behavior occurred between 1920 and 1945. In 1920, the
Japanese Cabinet decided to prosecute Tatsuo Morito, a junior
economics professor at Tokyo Imperial University, for publishing
an article on the social theory of Prince Kropotkin. The article
was not a revolutionary tract; indeed, Morito criticized the
flaws in Kropotkin's theory and raised questions about its
practicality. Further, as Mitchell has written (1976:41), Morito
"repudiated violent means, suggesting that the masses should
be politically awakened through legal channels."
Nonetheless, Morito was convicted of high treason and sentenced
to three months in jail. The government's purpose in using the
legal process to punish Morito was clear: anyone publishing even
discussions of radical ideas would suffer law's coercive
sanctions. The Morito case led to the Peace Preservation Law of
1925, which Havens (1978:70) characterized as "the legal
club for suppressing most dangerous thoughts." The law
punished sedition and membership in associations seeking to
change Japan's national polity. From 1925 through 1945, special
thought police, who were charged with enforcing the law, arrested
more than 50,000 Japanese citizens. Many of them were not
indicted or tried because they repented and renounced their
former associations and views after undergoing brainwashing and
sometimes torture. Thus law in Japan during this period was
obviously used as a coercive instrument to suppress thought and
to punish dissenters. The enforcement of the Peace Preservation
Law was no small operation; in 1941, there were approximately 70
special thought procurators enforcing the law.
If Haley's thesis has little support prior to 1945, is it valid
thereafter? To answer that question with any confidence,
well-designed empirical research is necessary. Haley's main
contribution is that he has set forth an imaginative thesis for
conducting such research.
REFERENCES
Havens, Thomas R. VALLEY OF DARKNESS. New York: W.W. Norton &
Co., 1978.
Mitchell, Richard H. THOUGHT CONTROL IN PREWAR JAPAN. Ithaca,
N.Y.: Cornell University Press, 1976.
Noda, Yosiyuki. INTRODUCTION TO JAPANESE LAW. Tokyo: Tokyo
University Press, 1976.
van Wolferen, Karel. THE ENIGMA OF JAPANESE POWER. New York:
Alfred A. Knopf, 1989.