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The Changing Role of Law in Japan

The Changing Role of Law in Japan

Empirical Studies in Culture, Society and Policy Making

Edited by Dimitri Vanoverbeke, Jeroen Maesschalck, David Nelken and Stephan Parmentier

The Changing Role of Law in Japan offers a comparative perspective on the changing role of law in East Asia, discussing issues such as society, cultural values, access to the legal system and judicial reform. This innovative book places Japan in the wider context, juxtaposed with Europe, rather than the US, for the first time.

Chapter 8: Between 'benevolent paternalism' and genbatsuka: diversity in Japanese criminal justice

Erik Herber

Subjects: asian studies, asian law, asian politics and policy, law - academic, asian law, politics and public policy, asian politics, public policy

Extract

In recent years, an increasingly punitive sentencing climate has developed in Japan, as more defendants are receiving harsher penalties, laws have been amended to allow for harsher punishments, and parole rates have gone down (a process referred to in Japanese as genbatsuka. These developments are significant in view of the apparent contrast with the 'traditional image' of Japanese criminal justice they represent. Japanese criminal justice has been famously characterized as 'benevolent paternalistic'. Benevolent 'in that its goal is to achieve reformation and integration into society through lenient sanctions tailored to the offender's particular circumstances' (Foote 1992, p. 317). Foote's paternalism referred to the discretionary authority granted to authorities in making decisions on investigation, prosecution, sentencing and so on (ibid., p. 361). Haley (1991, 1998) and Sasaki (2000) have painted a similar picture of Japanese criminal justice. In view of widely applied diversion practices, the emphasis on remorseful confessions (as a sign of corrigibility), Japanese criminal justice was seen as an example, of sorts, of Braithwaite's re-integrative shaming in action (Braithwaite 1989). The prolonged interrogations that confessions of guilt 'necessitate' have in turn received much attention as the downside of this 'Japanese approach' (more on these characterizations, below).

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