The Historical and Legal Framework
Japan has traditionally been described as a nation in which the formal system of justice, so eagerly embraced in the United States, is shunned, and extrajudicial informal procedures are sought. Historically, the whole concept of"dispute" has been an anathema to the Japanese, who prefer to see disagreements or conflicts between parties in a less aggressive light. As Kawashima (1963) suggests:
While Meiji government leaders near the end of the nineteenth century moved rapidly to introduce a European-style legal system in Japan, the deeply rooted feudalism of the Tokugawa period was not to be immediately overcome. Early innovations, such as the Penal Code of 1880 and the Criminal Procedure Code of 1890, reflected influence from the French system. Later, the Meiji legal system tended to show the Germanie (Prussian) influence that can be seen in many of the social and political reforms of the time. Tanabe comments on the reluctance of
Under the long tradition of unusually strong governmental control and community pressure, the rights consciousness ofthe Japanese people was very low. Strong social and psychological pressures discouraged the filing of lawsuits, and manifold out-of-court resolution, techniques and mechanisms, such as mediation by relatives, court marshals, or localleaders, were commonly used. The compromise of civil disputes was generally regarded as the most desirable solution. In fanning villages and small towns, suit against a neighbor was even amoral wrong. (1963, p. 77)
Even today, some contracts and agreements are still concluded orally without relying on lawyers. In other cases, a simple, written agreement might be drawn up by the parties themselves. Despite this historical reluctance to engage in litigation, change has been creeping in since World War II. My discussions with a wide variety of legal scholars, police officers, court personnei, and private citizens suggest that legal consciousness is growing in Japan. The number of cases brought to court has increased since World War 11.