TY - JOUR
AU - GINSBURG,, Tom
AB - One of the great caricatures of comparative law portrays countries in the common law tradition as utilizing juries, while those in the civil law tradition rely exclusively on judges in making legal decisions. This caricature has always been somewhat overblown, as evidenced by Japan’s experiment with a jury system from 1928 to 1943. In recent decades, however, there has been a global wave of new systems that involve ordinary citizens in legal decision-making. One example is Japan’s new saiban-in seido, which has handled thousands of trials in serious criminal cases since 2009. Political scientists have not devoted much attention to this phenomenon, and so Rieko Kage’s book is a welcome contribution. Examining Japan in depth, along with three shorter case studies of South Korea, Taiwan and Spain, she focuses on why jury systems vary across different contexts. Kage develops an explanation rooted in partisan politics. Deftly harnessing evidence from a variety of sources, she has produced an important book in which the Japanese case is nicely situated within a broader theoretical perspective, generating testable implications. Since, as she notes, 31 of 38 OECD countries and regions now have some form of public participation in criminal trials, there is ample room for extending her account further. Kage first provides a nice framework for analyzing variation in jury systems, focusing on their relative power vis-à-vis professional judges in the decision-making process. Traditionally, judges monopolized decision-making, but in the 1990s, in each of her case studies, pressure began to grow to open up the process and involve citizens more directly. While the precise motives and politics varied across cases, there were some common patterns. Conservative politicians tended to favor judges, who themselves sought to preserve their authority. Progressive lawyers tended to want a greater role for citizens. The common law jury was more an inspiration than a model, and institutional designs were widely debated. Interestingly, Kage notes on pp. 12–13 that a common assumption of both sides in the political debates—namely, that laypersons would have more influence on final decisions—is not supported by the social psychology literature on group decision-making. Drawing on the work of Herbert Kitschelt and others, Kage’s central explanatory variable is the political power of ‘New Left’-oriented parties. These parties emphasized a set of so-called post-materialist values, emerging in the late 1960s and 1970s throughout the industrialized world. One of the focuses of these values was an expanded role for public participation in decision-making, of which the jury system is a central example. This process-oriented perspective assumed that more involvement would produce better, more legitimate decision-making. Drawing on data from the Comparative Manifestos Project, Kage argues that lay decision-making was most extensive in countries in which leftist parties emphasized ‘New Left’ values and had political power. This framework emphasizes parties as mediating institutions, which is helpful in understanding the Japanese case in particular. This is because in Japan there was little public demand for the saiban-in system, and relatively high confidence in the judiciary, before the reforms were adopted. Kage devotes three chapters to Japan, tracing the process of adoption of the lay participation system from the earliest proposals, through the Justice System Reform Council established in the late 1990s, the adoption of legislation in 2004, its implementation in 2009, and thereafter. Her argument situates the saiban-in seido reforms in the broader process of legal reform. In keeping with her emphasis on partisan politics she hews closely to parliamentary debates, which are analyzed for content and timing. At first glance one might think Japan a tough case for her theory, given the continued dominance of the liberal democratic party (LDP). LDP through much of the relevant period. However, Kage looks at the roles of the other parties, and in particular emphasizes the LDP’s loss of the Upper House in July 1998. The coalition of opposition parties that controlled the Upper House, led by the Democratic Party of Japan, all held strong New Left positions. When Komeito broke with the coalition to join the LDP the next year, it ascended to a critical position to influence the legal reforms, and Kage demonstrates how many of the Komeito legislators, lawyers themselves, pushed for more lay involvement. Technocrats and academics, whose role has been emphasized in socio-legal accounts of the reform process, had mixed positions and less cohesion. While the head of the Justice System Reform Council, Professor Koji Sato, was known to be an advocate of the jury system, Kage argues that this is one reason why he was appointed. In short, she provides a strongly political account of reform. With Japan as a central case, Kage goes on to look at Taiwan, where proposals for lay participation have been debated for years, although they remain unimplemented at the time of this writing. Both major parties have opposed a proposal by the Judicial Yuan, with the governing Democratic Progressive Party (now a quintessential ‘New Left’ party) arguing that it does not go far enough, in that laypersons’ decisions would only be advisory. Such merely advisory decisions are also the norm in South Korea, which introduced a jury system in its constitution in 2007 but still attributes ‘final’ decisions to the courts. Kage’s brief account of Spain, which allowed the most extensive role for jurors, helps to make her case and serves as a nice bookend for the account of Japan, which falls in the middle of South Korea and Spain in terms of the role for jurors and the role of New Left parties. While one might have thought the Spanish case would be a poor fit as a comparitor for the other three Northeast Asian cases, Kage makes the case that Franco’s regime should be considered a kind of developmental state with rightist governance in the period preceding reform. A final substantive chapter looks at the impact of the new system in Japan, drawing on new evidence to show that it has had some impact on verdicts and sentences, decisions by prosecutors and police, and the citizen decision-makers themselves. It has led to a slight rise in acquittals (still very rare in Japan), and coincided with less frequent use of the harshest sentences of death or life imprisonment, though Kage is careful not to attribute causality in light of broader trend lines. Another plausible effect of the saiban-in system is on charging decisions; Kage suggests that prosecutors file fewer cases with the most serious charges, because of the difficulty in obtaining convictions. Finally, lay participants, who were skeptical about the saiban-in system, have reported positive experiences, and so the Tocquevillian point connecting the jury with civic education seems to be confirmed in the Japanese case. One quibble concerns the scope of the argument. Kage explicitly eschews explaining why jury systems are adopted, focusing more narrowly on the power given to jurors in decision-making (p. 57). It is not clear, however, why this decision makes sense. After all, if ‘New Left’ parties are the ones pushing lay participation onto the political agenda, they ought to affect the timing of adoption as well as the politics of institutional design. Here the problem may be that the LDP was firmly in control during much of the prehistory period of legal reform, whereas the South Korean reforms were adopted during a window of New Left ascendance under President Roh Moo-hyun. Kage’s book will become a touchstone for studies of Japanese legal reform as well as for broader accounts of the politics of lay participation. The New Left account of the politics of participation is a novel lens on the topic, which has thus far been analyzed chiefly by socio-legal scholars. It is also a neat feature of her central cases that they include parliamentary Japan, presidential South Korea, and semi-presidential Taiwan. Kage’s political account nicely integrates global social changes with the specific political dynamics that play out differently in different countries. © The Author(s) 2018. Published by Oxford University Press in conjunction with the University of Tokyo. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Who Judges? Designing Jury Systems in Japan, East Asia and Europe
JO - Social Science Japan Journal
DO - 10.1093/ssjj/jyy034
DA - 2019-03-09
UR - https://www.deepdyve.com/lp/oxford-university-press/who-judges-designing-jury-systems-in-japan-east-asia-and-europe-d53P2mf6ci
SP - 160
VL - 22
IS - 1
DP - DeepDyve
ER -