Idealizing the other? Western images of the Japanese criminal justice system.
Much of the most disturbing police behaviour stems from two connected facts: the system's overwhelming dependence on admissions of guilt, and the absence of checks on police power in the interrogation room. In Japan, the conditions of interrogation--the duration and intensity of questioning, the duty to endure questioning even after the right to silence has been invoked, and the unavailability of defence lawyers--means that an 'overborne will' is more than merely an occasional problem. (2)
In the preface to the second edition of Forces of Order: Policing Modern Japan, the criminologist David Bayley observes that "Americans are often urged to study foreign countries and culture, the usual reason given being the need to overcome parochialism and to broaden intellectual horizons." (3) As a justification for studying foreign criminal justice systems, this statement neatly sums up two of the major benefits most commonly associated with the practice of comparative criminology. On the one hand, comparative scholarship can provide a much needed escape from the often insular confines of one's own cultural and disciplinary context. Travel can not only broaden the mind but also refresh it, and looking at old problems through a comparative lens can be both invigorating and illuminating. More significantly, however, comparative scholarship has the potential to do more than simply make old issues new again. Instead, by observing how other justice systems tackle the problems of crime and criminality, researchers often find themselves formulating entirely new questions, questions that better acknowledge not only the universality of such problems, but also the possibility that there are real solutions to be found abroad.
Regardless of whether their primary aim has been to broaden their horizons or to bring some particular domestic issue into sharper focus, Western criminologists have shown a marked tendency to assign certain countries well-defined roles when engaging in comparative analysis. Among British and American criminologists, for example, discussions about drug policy and the implications of decriminalizing narcotics such as marijuana rarely fail to refer to the Netherlands as an example of a country in which liberalization has "worked." Similarly, writers interested in more restorative--as opposed to retributive--approaches to punishment typically point to the low crime rates enjoyed by such countries as Japan as evidence of the fact that the technique of shaming "works." Depending on the issue at hand--and perhaps more cynically, depending on their ideological or political persuasions--many criminologists appear to have a ready-made list of countries from which they routinely pick suitable examples when some sort of comparative analysis seems appropriate or helpful to their cause.
Of all the countries subjected to this kind of instrumentalist stereotyping, Japan has perhaps suffered the most. Over the last thirty years, the attention of Western criminologists has moved away from an initial simple fascination with Japan's low crime rates and instead gradually developed into a more focused interest in the relationship between Japanese culture and attitudes toward crime and criminality. In some circles, Japan has now come to be regarded as something of a criminal justice utopia, a country in which police officers are treated as beloved members of the community, and prosecutors and judges are loyal public servants dedicated solely to the rehabilitation of offenders. According to the American criminologist David Bayley, for example, the sociocultural environment of Japan is heaven for the police officer, so much so that "if Japanese and American police changed places, Americans would perform as efficiently as Japanese and Japanese police might become unhinged." (4)
While it might be tempting to dismiss this sort of idealization as an example of the immaturity of comparative criminology, the fact that Japan is so obviously an Asian country raises some interesting, and potentially disturbing questions. To what extent, for example, can the interest in Japan shown by advocates of restorative justice in the West be explained in terms of what Edward Said famously referred to as "Orientalism"? (5) Has the image of Japan constructed by criminologists such as David Bayley created or reinforced a tendency on the part of many researchers to idealize the Asian "other"? Is the Western view of the Japanese criminal justice system marred by a crude and ultimately misleading ethnocentrism? In this article, works by Bayley, John Braithwaite, and other prominent authors will be considered and juxtaposed against a new study of Japanese prosecutors by David Johnson, with a view to considering whether, in attempting to understand Japan's experience of crime and criminal justice, Western criminologists have been guilty of "idealizing the other."
Japan as a Criminal Justice Utopia
If a prominent sociologist from the West came here to research the Japanese police, he would undoubtedly conclude that this country is "a strange land." First he would run into the police wall of secrecy, and he would be unable to investigate actual police practices and conditions. Next he would be informed that there is no investigative reporting about the police by newspaper or other mainstream journalists, and that there are very few freelance journalists who follow police issues. Then he would learn that in Japanese colleges and universities there are no courses about the police (as there are in the West) and no scholars who seriously study them. In the end, our friend the sociologist would discover that citizens and taxpayers (who have entrusted their safety to the police) have an extremely weak consciousness to try to check the police. Such a scholar, I think, would be seized by this question: Is Japan really a democratic country? (6)
Within the canon of Western criminology, two texts stand as the most frequently cited authorities on the Japanese criminal justice system and Japanese attitudes to crime. The first of these, David Bayley's Forces of Order: Policing Modern Japan, was originally published in 1976 (most recently revised and reprinted in 1991), and relies on a host of first and second hand sources drawn from "about two years of intensive field research in Japan distributed over twenty years and many visits." (7) Although described by the author as a comparative analysis of the Japanese and US police systems, the bulk of the book is taken up with examining the working practices of Japanese police officers who, according to Bayley in his preface to the second edition, are "legally and ostensibly like police officers in the United States." The second text, John Braithwaite's Crime, Shame and Reintegration, while only indirectly concerned with Japanese attitudes to crime, has nevertheless had a profound influence on the way in which many criminologists view Japan and the Japanese response to criminality. Focusing on the restorative value of shame, Braithwaite refers extensively to Japan as a shaming culture in which the reintegration--as opposed to the isolation or exclusion--of offenders is a primary concern. As Braithwaite puts it,
Shaming as a feature of Japanese culture is well known even to the most casual observers of Japan. What is not so widely known is the reintegrative nature of this shaming. The fact that convicted American offenders are more than twenty times more likely to be incarcerated as convicted Japanese offenders says something about the respective commitments of these societies to outcasting versus reintegration. (8)
Braithwaite did not carry out any original research of his own in Japan, and in the sections on Japanese attitudes to crime and the role of shame in the Japanese criminal justice system, he relies heavily on the works of other Western criminologists, most notably Bayley. However, because Crime, Shame and Reintegration has become one of the most-read criminological texts of all time and is regarded by many as the bible of the restorative justice movement, Braithwaite's description of Japan as a country where reintegrative shaming works has been unquestioningly accepted by large sections of the criminological community in Europe and the United States.
Although these two books differ considerably in terms of their style and structure, common to both is a distinctly positive view of the Japanese criminal justice system and of Japanese approaches to delinquent behavior more generally. In coming to the conclusion that the Japanese system is to be admired and copied by nations in the West, both Bayley and Braithwaite make much of the fact that apology occupies a central position in Japanese society. The importance of the notion of apology, combined with what Braithwaite and Bayley regard as Japan's deeply entrenched commitment to communitarianism, enables actors within the criminal justice system to approach problems with a view to restoration rather than punishment. For Bayley this approach to deviant behavior stems in part from the fact that the Japanese learn the value of belonging at an early age:
In schools children advance automatically, as a group, helping one another as they go. Individual achievements are deemphasized in favour of group accomplishments. Children learn not to embarrass school mates by showing them to be wrong. Instead, they correct others by saying "I want to help Yamada-kun" or "I agree with Kato-san but I also think this way." ... Teachers and students explain constantly to laggards what is expected, reiterating that unless something or other is done the class will be disappointed, the student will be letting down the side, or everyone will be ashamed if the student does not try. (9)
According to Bayley, it is this sense of belonging and the "vitality of group supervision" that provides the basis for the web of informal social control processes that enables the Japanese criminal justice system to "accept apologies for minor infractions" and allows the police, prosecutors, and judges to "hate the crime and not the criminal." (10)
In a similar fashion, Braithwaite also focuses on the importance of the group rather than the individual in Japanese culture, noting that the need to maintain one's position and identity provides the foundation for a more productive use of denunciation and shame than is typically found in the West:
Cultures like that of Japan, which shame reintegratively, follow shaming ceremonies with ceremonies of repentance and reacceptance. The nice advantage such cultures get in conscience building is two ceremonies instead of one, but, more critically, confirmation of the moral order from two very different quarters--both from the affronted and from him who caused the affront. The moral order derives a very special kind of credibility when even he who has breached it comes out and affirms the evil of the breach. (11)
For Bayley and Braithwaite then, Japan's persistently low crime rates can be explained primarily by reference to the central role of the group--family, professional, of communal--in Japanese society. In this regard, Forces of Order and Crime, Shame and Reintegration present a Japan that stands in stark contrast to more individualistic and atomized societies such as Britain and the United States. In the absence of any contrary account of the Japanese criminal justice system--in English at least--this is a view that appears to have been broadly accepted by criminologists in the West. Prior to the first edition of Forces of Order, virtually nothing had been published in English about either the Japanese police or the Japanese criminal justice system. Indeed, almost thirty years after Bayley first published his original research, few comparable studies of the Japanese police have emerged. Consequently, Forces of Order remains the major authoritative source on Japan for Western criminologists. While Braithwaite surely never intended Crime, Shame and Reintegration to be a definitive study of the Japanese criminal justice system, as support for restorative justice has grown in countries such as Australia, Britain, and the United States, many criminologists and criminal justice professionals have likewise inevitably come to see Japan through Braithwaite's eyes.
Insofar as both Bayley and Braithwaite have helped to generate interest in the Japanese criminal justice system, their two books are clearly valuable resources, particularly for those who do not speak Japanese and have little or no direct contact with Japan. However, what is disturbing about both Forces of Order and Crime, Shame and Reintegration--and many of the writings in English that have drawn on these works--is the degree to which all things Japanese are presented in a positive, and at times even romantic, light. Taken together, the image of Japan that emerges from these two books is arguably one of a "criminal justice utopia," a society in which communitarian values and a pervasive commitment to reformation and reintegration have led to enviably low crime rates and seemingly unparalleled faith in the institutions of justice:
Police, prosecutors, and judges share an overriding mission to correct rather than punish, incapacitate, or rehabilitate. From the initial police interrogation to the final judicial hearing for sentencing, the vast majority of those accused of criminal offenses confess, display repentance, negotiate for their victims' forgiveness, and submit to the mercy of the authorities. In return they are treated with extraordinary leniency; they gain at least the prospect of absolution by having their case dropped from the formal process altogether. (12)
Yet for anyone who is familiar with native Japanese criminological literature, this image is likely to be surprising. Far from being positive about the performance of key criminal justice actors like the police, over the past thirty years Japanese researchers have painted a picture of a system riddled with corruption and characterized by serious misconduct and a lack of accountability:
The police are creating slush funds systematically. They concoct money from business trips never taken. They skim funds they pretend to have paid to fictitious informers and sources, and so on. But stopping this practice is impossible. After all, there are no police to control the police. (13)
Consider the word "lawless." The dictionary defines it as "where the law does not apply." I think police are Japan's most lawless group. (14)
This substantial disjuncture between Western and Japanese views on the Japanese police and criminal justice system could perhaps be ascribed to simple cynicism on the part of Japanese criminologists. Or perhaps the Western and Japanese views are representative of two extreme positions, and that the truth of the Japanese criminal justice system lies somewhere in between. What is more serious, however, is the fact that many of the claims made by Bayley, Braithwaite, and their followers about the nature of Japanese society smacks of what Edward Said has famously referred to as "Orientalism."
According to Said, Orientalism is best understood as a form of Western ethnocentrism characterized by a reliance on myths and metaphors that tend to emphasize the strangeness of the Middle East and other "Near Eastern" countries such as India and Pakistan. Although Said's writings on the subject are largely confined to a discussion of Western images of the "Eastern world," many of his general observations about the sources and consequences of Orientalism can also be usefully applied to the depiction of Japan by Western academics. As Said notes, what is striking "about these discourses are the rhetorical figures one keeps encountering in their descriptions of 'the mysterious East,' as well as the stereotypes about 'the African' [or Indian or Irish or Jamaican or Chinese] mind." Referring to Richard D. Lewis's book When Cultures Collide, the sociologist Steven Rosen provides a vivid example of how Orientalism shapes depictions of Japan in Western writing:
By no means the worst of its kind, Lewis's book expresses very well the way we use metaphors to trivialize another culture in a totalistic way, so as to make it easier to capture it in a network of our own understandings.
* Japanese children are encouraged to be completely dependent and keep a sense of interdependence throughout their lives.
* Everything must be placed in the context of Japan.
* Japanese are constrained by their thought processes in a language very different from any other ...
* Westerners are individuals, but the Japanese represent a company that represents Japan ...
This kind of Orientalism carries with it the implication that Asian people are much more conformist than we are, and less respecting of the dignity of individual rights--i.e., inferior. (15)
In this key sense, Orientalism typically manifests itself in a tendency to essentialize and thereby diminish Middle and Near Eastern cultures and values with respect to their Western counterparts. However, a number of writers have observed that Japan--perhaps uniquely amongst Asian countries--has instead tended to be idealized and portrayed in a particularly positive light. As Rosen goes on to note:
Western images and metaphors for Japan are not all negative, of course--a romantic version of Orientalism paints a picture of Japan whose sophisticated culture with its indigenous traditions are in close harmony with nature (a myth popular in Japan, as well, it might be added); tiny bonsai trees, exotic geisha girls in kimono, manicured rock gardens, the unfathomable mysteries of Zen Buddhism, shiatsu and macrobiotic cooking, signify for us a people who are deeply intuitive and aesthetically attuned in a way that we are not. (16)
According to such depictions, modern Japan is a country in which deeply entrenched values of family, honor, and respect have produced a traditionally communitarian country characterized by politeness, orderliness, and a heightened aesthetic sensibility. The Japanese are different from the Western "us" because they are less inclined toward individualism and selfishness, and more willing to sacrifice themselves to the needs of the group. In the criminological context, this Orientalism typically manifests itself in terms of an assumption that the Japanese are inherently more law abiding than people in the West, and that their response to crime--even when they themselves are the direct victims--is by nature more sympathetic and forgiving.
To what extent are Bayley, Braithwaite, and those who have endorsed their account of the Japanese criminal justice system guilty of "idealizing the other" or engaging in a form of criminological Orientalism? Certainly, Forces of Order and Crime, Shame and Reintegration present a relatively simplistic image of the Japanese people as essentially subservient to the demands of a communitarian culture based on the desirability of order and social conformity. Although both authors acknowledge that the perceived emphasis on the collective interest may be damaging to the development of individual identity and respect for individual rights, the overriding intimation throughout both works is that citizens in Japan are happy to "put themselves second." Whereas few Western criminologists would seriously suggest that attitudes to the police in England or the United States can be understood by reference to a single, readily identifiable cultural trait--such as English notions of "fair play" or American "individualism"--when writing about Japan, both authors consistently return to the analogy of the "family" as a means of explaining how the Japanese view themselves and their relationship to the state:
The feeling that security consists in acceptance is transferred from the family to other groups, allowing them to discipline members through the fear of exclusion. This accounts for the ability of the police to discipline their own members so effectively. By enwrapping the officer in family-like solicitude, the organization raises the psychological costs of expulsion. Similarly, a Japanese accepts the authority of law as he would the customs of his family. The policeman is analogous to an elder brother who cautions against offending the family.... (17)
Japanese policemen are accountable, then, because they fear to bring shame on their Japanese "family," and thus run the risk of losing the regard of colleagues they think of as bothers and fathers. (18)
While it is true that Western criminologists may use words such as "family" and "brotherhood" to describe how police officers in countries such as Britain and the United States relate to one another, what is striking about Bayley's use of such terms here is that he seems to be implying that the individuals concerned actually regard themselves as sharing quasi-familial bonds. In this sense, his analysis contains one of the key hallmarks of Orientalism--the tendency to describe what would in the West be regarded as complex social situations in highly simplified terms that stress the "otherness" of the subject:
If Orientalism, as Said describes it, has a structure, this resides in its tendency to dichotomize the human continuum into we/they contrasts and to essentialize the resultant "other"--to speak of the Oriental mind, for example, or even to generalize about "Islam" or "the Arabs." All of these Orientalist "visions" and "textualizations," as Said terms them, function to suppress an authentic "human" reality. This reality, he implies, is rooted in oral encounter and reciprocal speech, as opposed to the processes of writing or of the visual imagination (19)
Braithwaite engages in a similar form of analysis in Crime, Shame and Reintegration. Attempting to explain what he perceives to be the Japanese tendency to distinguish the deviant individual from his or her deviant behavior, Braithwaite focuses on how the Japanese language evidences this willingness to shame behavior rather than people:
[A]pology in Japan amounts to dissociation from that evil part of oneself that committed an unacceptable act. Japanese idiom frequently accounts for wrongdoing with possession by a "mushi" (worm or bug). Criminals are therefore not acting according to their true selves; they are victims of a "mushi" that can be "sealed off," thus permitting people to be restored to the community without guilt. (20)
Few Western criminologists would find arguments based on this sort of uncomplicated linguistic determinism acceptable if applied to their own cultures--we do not, for example assume that when Americans say of a criminal that "he has the Devil in him," they are seriously suggesting that criminality has some demonic dimension to it. It is therefore difficult not to come to the conclusion that different standards of analysis are being applied to the Japanese case.
In a similar vein, Bayley ascribes great significance to the differences between Western and Japanese children's stories when he attempts to explain how Japan and the Japanese mind are to be understood. (Notably, the passage is cited by Braithwaite.)
Betty Latham , an American anthropologist, has shown that Japanese folktales stress repentance and reform whereas Western folktales stress punishment and often death. Western societies seem to give up more quickly on people than Eastern ones. In a Japanese translation of "Little Red Riding Hood", for example, the wicked wolf falls on his knees and tearfully promises to mend his ways. In the Western version, the wolf is simply killed. (21)
Although observations such as these provide the foundation for many of the more extensive statements made by Bayley and Braithwaite about the Japanese criminal justice system, they are offered largely without reference to any of the extensive anthropological or sociological literature on Japan and Japanese culture (the reference to Latham being a very notable, if limited, exception). In this sense, these claims conform also with the Orientalist stereotype--that is, they take it as a given that the Japanese way of being and thinking is inherently different from cultures in the West, and that that difference as to language, family, and school life translates readily and unproblematically into the context of criminal justice and attitudes to crime and legal institutions.
Returning to Bayley's reflections on the significance of Japanese approaches to education and their influence on attitudes to criminal behavior, it is striking that he sees no difficulty in translating observations about the tendency for conformity in one context--the school--to another, substantially different context, namely the broader social environment in which crime and criminal behavior are located. For Bayley, what holds in the Japanese classroom and the Japanese family home (which itself should be scrutinized and possibly re-evaluated) must also hold in the public sphere. In other words, the tendency towards conformity is an essential Japanese trait:
Japanese are enmeshed in closely knit groups that inhibit behavior through informal social controls. Japanese are not raised to stand alone, develop their individual potential, or "do their own thing." They are taught to fit into groups and to subordinate themselves to the purposes of these groups. The most important and enduring groups are family, schools and workplace. Becoming an organic part of them--belonging--is the source of the deepest emotional satisfaction Japanese feel. (22)
In making such broad statements about the Japanese and their culture--and then using them as the basis for more specific claims about attitudes to crime and criminality--Bayley's analysis displays one of the key features of the Orientalism: the desire to essentialize the other. At its most basic, Bayley's observations here can be distilled down to the conclusion that the Japanese are both more homogeneous and fundamentally different from "us." Contrary to what we know about the complexities of human behavior and society, these people--the Japanese--can be understood by reference to a number of simple concepts, notably the centrality of the group and fear of shame and exclusion. Despite being highly reductive and offered without any reference to sociological or other evidence, such concepts are used repeatedly by Bayley to explain why police officers are so respected in Japan, and further, why apology as a response to criminal behavior "works." Just as the suggestion that Japanese primary school children typically respond to their classmates' failings in a "restorative" rather than judgmental fashion has a slightly romantic air to it, the repeated claim that the Japanese are law abiding and restorative in their instincts because of some inherent need to belong hints at the sort of Orientalism that Said criticizes.
Aside from the fact that reliance on stereotyping as a substitute for more serious sociological analysis should be rejected as overly reductive and potentially misleading, Bayley and Braithwaite's account of the Japanese criminal justice system is problematic for other reasons. Insofar as comparative scholarship can help to shed new light on local conditions and problems, its usefulness is inherently limited by the accuracy of the comparison. Holding up various Western criminal justice systems--such as those in the Britain and the United States--for comparison with an overly simplified and idealized other is dangerous because it may lead us to judge ourselves more harshly than is necessary, and to conclude that "foreign solutions" to our problems are inherently more plausible than local ones. Nowhere has this danger been better exemplified than in the restorative justice movement. Despite the fact that Braithwaite provides little more than a blurred snapshot of Japanese culture in Crime, Shame and Reintegration, the vision of Japan that he evokes as a "shaming culture" in which restoration is the norm is one that has, for better or worse, inspired criminologists and policymakers around the world. Had they been presented with a more nuanced account of just how the Japanese criminal justice system works, however, it is arguable that the enthusiasm with which some have endorsed restorative justice may have been tempered. Part of the appeal of most ideologies--like most religions--is the promise of some far-off utopia in which the problems that vex us are less serious or simply not present. Reading Forces of Order and Crime, Shame and Reintegration, it is hard to avoid the conclusion that for Bayley and Braithwaite, Japan--the country where crime rates are low, the police are respected, and offenders restored--represents just this kind of utopia.
Lost in translation
Altogether, the police were as accessible as I could ask, certainly as accessible as the canons of scholarship require. I am deeply grateful to the Japanese police for the trust in me which this openness represented. (23)
It is notable that the few students of Japanese police who speak and read their language have been far more critical than have scholars who must rely on translators and police "handlers" to penetrate police culture. (24)
Given that David Bayley and John Braithwaite are both highly respected criminologists, why is it that both present a picture of Japan and the Japanese criminal justice system that is ultimately marred by oversimplification and Orientalism? One explanation is the problem of language. Comparative work in criminology is always difficult when one is seeking to compare countries with markedly different histories, cultures, and legal traditions, and it is obvious that this difficulty is compounded by the existence of linguistic differences. It is reasonable to expect, then, that a foreign academic unfamiliar with the Japanese language and wishing to conduct interviews and observation work in Japanese police stations would be confronted with a range of serious methodological challenges. "Blending in," for example, is unlikely to be an option, particularly given that virtually every police officer in Japan is ethnically Japanese, and few speak English fluently. According to Bayley, however, his research went smoothly and largely without incident. (25) Access to police operations and procedure was "faultless," with the officers themselves serving as near-perfect interview subjects, particularly once the researcher had been able to earn their trust:
One of the words the Japanese use to discuss personal relations is ninjo. The other is giri.... Ninjo refers to sympathy, warmth, empathic identification between two persons. Whereas only social scientists talk much about rapport in the United States, every Japanese can recognize and discuss the amount of ninjo in a relationship. Ninjo, enhances rapport; in some ways it is rapport. Police officers were willing, therefore, to shape their response to me according to whatever subtle links of warmth and sympathy our meeting generated. (26)
Although Bayley gives few details as to exactly how his fieldwork was organized or conducted, it appears that whatever problems he might have encountered were either eliminated or their effect minimized by the presence of his interpreter. Indeed, while acknowledging that he could not "begin to estimate" how much he might have missed as a result of being unable to speak Japanese, Bayley appears untroubled by having to rely on a translator and confident in his assessment of the Japanese police. Comparing his relationship with his interpreter Nozomo Nakagawa with the comradeship that existed between Don Quixote and Sancho Panza, Bayley notes that Nakagawa was an ideal companion in the project because--having lived in the United States--he "understood which aspects of Japanese culture an American would misperceive or overlook." (27) While it is understandable that Bayley came to rely on his interpreter in this way, the fact that he spends so little time in Forces of Order discussing this relationship or examining the methodological problems that it might have raised--we are not told, for example, anything about Nakagawa's background or whether he too is a criminologist--it is hard not to be sceptical of Bayley's assurances that it did not adversely affect the research.
Even ignoring the overly simplistic discussion of the significance of ninjo and the implicit (but unexamined) suggestion that the Japanese police are somehow more susceptible to expressions of empathy than their U.S. counterparts, Bayley's willingness to downplay the very real problems of language and culture that must have confronted him are disturbing. In this regard, he seems to assume that the process of translation--of both his questions and his respondent's answers--is either a neutral process or somehow enhanced by the skills and experience of the translator. More significantly, he also seems to assume that far from making the process of observation and interviewing more obtrusive and less naturalistic, the physical presence of a translator is unproblematic. Preferring to focus on the advantages of using an interpreter, Bayley rather optimistically declares that translation, "though it prolongs interviews, provides moments of respite during which the researcher can make notes and organize thoughts before plunging into another question." (28)
Bayley's relative unconcern about the problems of using a Japanese translator is all the more worrying given his observations about the apparent openness of the police. Despite the fact that criminologists the world over have repeatedly found that the police generally do not make for accommodating or co-operative research subjects, Bayley appears to have had few problems earning the trust of his Japanese subjects. While acknowledging that that it would be "naive to think that Japanese police officers were not apprehensive that I would portray them in an unfavourable light," (29) he nevertheless goes on to conclude:
In summary, Japanese police officers were as quick as American officers to perceive the thrust of my questions, to determine potential embarrassment. Because, however, they were proud of what they were doing, admired expertise, and were open to the interplay of personality, frank exchanges with Japanese police officers were not usually difficult to obtain. (30)
Based on the recorded experiences of Japanese criminologists who have sought to study the police in their own country, it would seem that Bayley gained almost unprecedented cooperation and access during his visit to Japan. In attempting to explain what appears to be amazingly good fortune, Bayley notes that he may have in part benefited from the fact that the Japanese police do not hold a particularly favorable view of Japanese criminologists:
Japanese police officers think that their own scholars insufficiently appreciate the job of the police and habitually approach the police with a strong ideological bias. (31)
Of course, given that much of what has been written in Japanese about the police over the past thirty years is decidedly more critical than Forces of Order, it is perhaps not surprising that the police preferred to entertain a foreign criminologist working through a Japanese translator, who was not only easily identifiable by virtue of the fact that he was not Japanese, but who could neither read nor speak the language. Significantly perhaps, Bayley also emerges as a researcher who, even when he appears to have caught his subjects being less than honest, is prepared to give the Japanese police the benefit of the doubt:
On several occasions when a pointed question of mine had been met with vague generalities, I responded by noting gently but frankly that I had actually seen the contrary. Rather than being affronted, my informants consistently paused, laughed and complimented me on the unusual penetration of my research. They would then go on to supply the additional information. (32)
Presumably having earned the officer's respect and established a degree of ninjo through such exchanges, Bayley was able to be confident that the second answer was in fact the correct one. Moreover, one assumes that Bayley must have been confident that he managed to catch and successfully challenge all such instances of misrepresentation and dishonesty.
If Bayley emerges as perhaps a little too willing to ignore problems of language in his research, then surely Braithwaite is open to similar criticisms by association. Throughout Crime, Shame and Reintegration, Braithwaite repeatedly cites and quotes Bayley as his main authority on both the Japanese criminal justice system and Japanese culture more generally. Such reliance on a single source would be troubling enough even if Bayley were a true expert on Japan who could read or speak the language of his subjects. However, turning to Braithwaite's 29-page bibliography it is even more disturbing to find very few actual references to Japan, and only a handful to the writings of Japanese criminologists. Ultimately, the more closely one looks at these two books, the more difficult it is to avoid concluding that whatever their other merits, the picture that they paint of Japan is based on a very limited amount of research and informed by a degree of romanticism that is highly problematic.
Putting Aside the Rose-Tinted Glasses: Recent Research and a New Realism
As has already been noted, Forces of Order and Crime, Shame and Reintegration have had a considerable influence on the way in which many Western criminologists have come to view Japan. Although no doubt helped by the fact that both Bayley and Braithwaite are well-respected criminologists, these two books have come to be relied upon mainly because there is so little else on crime in Japan or the Japanese criminal justice system available in English. Thankfully, in the past two years a number of works have emerged that serve as a welcome corrective. The first and perhaps most significant of these is David T. Johnson's The Japanese Way of Justice: Prosecuting Crime in Japan, a masterful comparative study of Japanese and US prosecutors and their institutional cultures. Described by Malcolm Feeley as "quite simply the best book on the administration of justice in Japan in English or any other language," (33) it is a work that avoids many of the problems that plague Forces of Order and, to a lesser extent, Crime, Shame and Reintegration. First and foremost, unlike either of these books, The Japanese Way of Justice makes extensive use of academic research and legal materials published in Japanese. Fluent in the local language, Johnson was not only able to undertake his field work and interviews without the assistance of an interpreter, but also--and perhaps even more crucially--read official documents and access criminological writings in Japanese. Unsurprisingly, the picture he paints of Japan and the Japanese criminal justice system is altogether more textured and less flattering than that which emerges in the writings of either Bayley or Braithwaite. Indeed, Johnson seems at his most comfortable when he acknowledges the complexity of his topic:
In short, this portrait of Japanese criminal justice includes much "confusion and contradiction" because that is what the available evidence requires. Like any portrait, this one is framed by assumptions about what does and does not matter. Unavoidably, much--and much that others consider important--has been omitted. After six years of reflecting and writing about what I discovered during thirty-three months in the field, this portrait remains a pale reflection of reality. What it reflects, I hope, is that the Japanese way of justice seeks confessions, consistency, corrections, and convictions, and often obtains them, but also. (34)
Furthermore, the Orientalism that mars Forces of Order and, to a lesser extent, Crime, Shame and Reintegration is simply not present in Johnson's work. While Johnson does not shy away from making comparisons between Japanese and American culture, he always does so with a degree of caution, and in almost every instance takes great pains to ensure that his observations are read in context. For Johnson, Japan's prosecutorial system cannot be understood by reference to familiar stereotypes and metaphors, but rather through a painstakingly detailed examination of how the exercise of prosecutorial discretion affects other criminal justice agencies and actors. For example, instead of simply noting that prosecutorial power often goes unchallenged in Japan because the defence bar is weak, Johnson takes the time to consider the reasons behind this weakness. (35) By explaining that criminal defence lawyers in Japan are poorly paid, in short supply, and hampered by a lack of powers at the pre-indictment stage, Johnson not only enables his reader to better understand his immediate subject--the prosecutors--but the also the context in which they work. As a consequence, far from implying that the Japanese are some idealized other who simply are simply different from "us," he eventually arrives at the conclusion that the Japanese criminal justice system faces similar challenges and shares many of the same flaws that characterize criminal justice systems the world over:
Many values in the Japanese way of justice--truth, individualization, consistency--are not peculiarly Japanese; they are shared, in the abstract at least, by thoughtful people everywhere. (36)
Unlike his Orientalist predecessors, Johnson does not stop at simply identifying these similarities and shared characteristics, but instead goes on to explore their implications in the culturally specific context of Japan. Having done so, he is far better placed to make meaningful comparisons between the Japanese and American criminal justice systems.
Writing in a similar vein to Johnson is the Scottish sociologist Peter Hill, whose work on organized crime in Japan also stands as a clear rejection of the Orientalism and stereotypes that have previously informed Western criminological thinking about Japan. In The Japanese Mafia: Yakuza, Law, and the State, Hill does much to expose many of the myths that surround crime in Japan, focusing in particular on how criminal gangs have reacted to both Japan's prolonged recession and new laws aimed at curbing their influence. (37) Interestingly, while Hill concludes that both of these factors have left the yakuza in a weakened state, he is not convinced that the consequences of this are entirely positive. He documents how the yakuza, forced by a slump in the real estate market to look for new sources of income, have become increasingly reliant on selling amphetamines, with the result that they have created over-supply in the market, lower drug prices, and ultimately, more drug users. Even more striking is Hill's claim that the combination of increased police attention, harsher laws, and growing competition from foreign criminals has left the yakuza less able to control crime and raised the prospect of a rising tide of gang-related violence.
Such nuanced and impressively detailed analysis of his subject marks Hill out as an expert on Japanese crime and criminal justice, along the lines of Johnson. Like Johnson, Hill has a command of the Japanese language that enabled him not only to carry out his field work unaided by translators, but to access and evaluate local as well as English language literature on his subject. Finally, while Hill writes with a dry wit in places, there is no sign of the romanticization of Japanese culture that characterizes Forces of Order or Crime, Shame and Reintegration. Instead, Japan is presented as a modern country with problems, peopled by individuals who are far from slaves to a set of simple, monolithic values. In short, the Japan that emerges from the pages of The Japanese Mafia--as with The Japanese Way of Justice--is one that is believably complex, difficult, and real.
Reality is created out of confusion and contradiction, and if you exclude those elements, you're no longer talking about reality. (38)
At the beginning of this article it was observed that comparative scholarship has the potential to "broaden intellectual horizons." To the extent that writings by authors such as Bayley and Braithwaite have helped to bring Japan and the Japanese criminal justice system to the attention of criminologists in the West, their work is to be commended. Furthermore, both books have interesting and important things to say about crime in Japan. For example, the last chapter of Forces of Order provides a useful and comprehensive, if still somewhat overly general, description of how crime control has developed in Japan during the postwar period. However, as Bayley himself observes, comparative study should also strive to overcome parochialism. Unfortunately, over the past thirty years works like Forces of Order and Crime, Shame and Reintegration have served to legitimize a form of Orientalism that has produced a distorted, narrow-minded vision of Japan within Western criminology. For comparative scholarship to fulfill both its aims--to expand criminology's scope and to shake it free of a dogged interest in local problems and solutions--the cultural reductivism of the past must be abandoned. The distorted and idealized image of Japan as a criminal justice utopia--like the research methods that produced it--deserves to be rejected in favour of a willingness to see the foreign subject and foreign institutions as complex and more than simply "other." As Johnson has argued:
With few exceptions, accounts of Japan--and law in Japan--fall into two polarized camps. Either Japan is sui generis, a paradoxical enigma that cannot be understood using the customary tools of analysis, or else it is a normal country for which there is no need to create a special category. The Japan I see is neither, or perhaps it is both. (39)
With the publication of two exceptional works on Japan in the past two years, one can hope that this is only the beginning of a new direction in comparative criminology, one that will eventually lead us to appreciate and learn from the "real" Japan as opposed to remaining preoccupied with an elusive myth.
(1) David H. Bayley, Forces of Order--Police Behavior in Japan and the United States (Berkeley: University of California Press, 1976), 156.
(2) David T. Johnson, "Justice System Reform in Japan: Where are the Police and Why does it Matter?" Horitsu Jiho (ed. T. Suami and M. Ibusuki, February 2004), 8.
(3) David H. Bayley, Forces of Order--Policing Modern Japan (Berkeley: University of California Press, 1991), ix.
(4) Bayley, Forces of Order (1991), 190.
(5) Edward W. Said, Orientalism (New York: Vintage Books, 1979).
(6) M Kobayashi, Nihon Keisatsu No Genzai (The Present State of the Japanese Police) (Tokyo: Iwanami Shoten, 2000), vi.
(7) Bayley, Forces of Order (1991), xi.
(8) John Braithwaite, Crime, Shame and Reintegration (Cambridge, UK: Cambridge University Press, 1989), 63.
(9) Bayley, Forces of Order (1991), 178-179.
(10) Bayley, Forces of Order (1991), 180.
(11) Braithwaite, Crime, Shame and Reintegration, 74.
(12) John O. Hayley, "A Spiral of Success," In Context #38 (The Ecology of Justice) (Spring 1994): 32 <http://www.context.org/ ICLIB/IC38/TOC38.htm>
(13) Y. Terasawa (ed.), Omawarisan wa Zeikin Dorobo (Officer Friendly is a Tax Thief) (Tokyo: Mediaworks, 1998), 2.
(14) Ochiai Hiromitsu, "'Ura Chobo,' 'Maibu Kokuhatsu,' 'Taisaku Manyuaru' no San-Ten de Semero" (Using the Trio of "Back Books," "Whistleblowers," and "Countermeasure Manuals" to Attack the Police) in Omawarisan wa Zeikin Dorobo (Officer Friendly is a Tax Thief), 128.
(15) Stephen L. Rosen, "Japan as Other: Orientalism and Cultural Conflict," Intercultural Communication 4 (2000): 3.
(16) Rosen, "Japan as Other," 2.
(17) Bayley, Forces of Order (1976), 156.
(18) Bayley, "Accountability and Control of the Police: Some Lessons for Britain," in The Future of Policing, ed.T. Bennet (Cambridge, UK: Institute of Criminology, 1983), 156.
(19) Clifford, "Orientalism: Review Essay," in History and Theory 19, no. 2 (1980): 207.
(20) Braithwaite, Crime, Shame and Reintegration, 64.
(21) David H. Bayley, Social Control and Political Change (Princeton, NJ: Center of International Studies, Woodrow Wilson School of Public and International Affairs, Princeton University1985), 105.
(22) Bayley, Forces of Order (1976), 177.
(23) Bayley, Forces of Order (1991), xii.
(24) David T. Johnson, "Above the Law? Police Integrity in Japan," Social Science Japan Journal 6, no. 1 (2003): 29.
(25) Bayley, Forces of Order (1991), xii.
(26) Bayley, Forces of Order (1991), xiv. It is worth contrasting Bayley's experience with that of David Johnson who, despite being able to speak Japanese, encountered considerable resistance when attempting to gain access to the public prosecutor's office in Kobe: "It took four months of forbearance to 'get in' the Kobe office.... Throughout the research in Kobe, getting close to prosecutors was my methodological migraine, an intense headache which recurred so frequently that even when I did not feel it I suffered from the knowledge that it would soon return." See David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (New York: Oxford University Press, 2001), 9-10.
(27) Bayley, Forces of Order (1991), xv-xiv.
(28) Bayley, Forces of Order (1991), xv.
(29) Bayley, Forces of Order (1991), xiii.
(30) Bayley, Forces of Order (1991), xv.
(31) Bayley, Forces of Order (1991), xiii.
(32) Bayley, Forces of Order (1991), xiv.
(33) Cover blurb, The Japanese Way of Justice.
(34) Johnson, The Japanese Way of Justice, 278.
(35) Johnson, The Japanese Way of Justice, 74, 79-80.
(36) Johnson, The Japanese Way of Justice, 279.
(37) Peter B. E. Hill, The Japanese Mafia: Yakuza, Law, and the State (New York: Oxford University Press, 2003).
(38) Haruki Murakami, Underground: The Tokyo Gas Attack and the Japanese Psyche (New York: Vintage, 2003), quoted in Johnson, The Japanese Way of Justice, 277.
(39) Johnson, The Japanese Way of Justice, 279.
Benjamin J Goold is a University Lecturer in Law and a Fellow and Tutor at Somerville College, University of Oxford, having formerly been Associate Professor of Anglo-American Law at the University of Niigata, Japan.
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|Publication:||Criminal Justice Ethics|
|Date:||Jun 22, 2004|
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