Rule of law in Japan

Japan today is a postindustrial economy with a mature legal system. In this chapter we trace the evolution of rule of law in Japan by focusing on judges and the courts. We begin with Japan's borrowing of legal institutions from China in the mediaeval period and then discuss the 19th-century use of the German concept of the Rechtsstaat by Meiji state-builders and the "reception" of European law and development of indigenous modern legal institutions in the interwar years. Following the Second World War an Anglo-American version of rule of law was introduced through the 1947 constitutional framework, ushering in decades of constitutional rights discourse and a new means of negotiating the relationship between state, individual and community. During the postwar highgrowth era, until the economic downturn beginning in 1989, the conventional wisdom was that Japan had to some degree molded its law and legal institutions to the demands of economic growth. In the late 1990s, however, a new "justice system reform" discourse emerged and began to crystallize a set of widereaching policy reforms, including dramatic overhauls of the court system, the legal profession, and legal education. It remains to be seen whether Japan's "justice system reform" process is simply a continuation of earlier systemic reforms, or whether it marks a transition to a new set of debates about the parameters of law in Japan. At each point in this history Japanese legal debates and institutions reference Chinese, European, and American counterparts, but do not mimic them. Significantly, Japan becomes the first Asian post-developmental state to face economic stagnation and Japanese elites respond by revisiting key legal institutional arrangements. We argue in this chapter that "rule of law" is a construct defined by the political and economic character of a particular state. In Japan, "rule of law" has resurfaced in legal discourse precisely because the system may be at a major institutional turning point. Rule of law as conceived by Peerenboom (Chapter 1)-both the "thick" and "thin" versions-is visible and vibrant in Japan. Multiple definitions of rule of law are well understood and deeply internalized by elite political and legal actors and are not at issue in the new "justice system reform" process. Whether the institutional forms of rule of law will dramatically alter as a result of the reform process in Japan, however, is an open question.