On the ethics of exporting ethics:The right to silence in Japan and the U.S

Criminal Justice Ethics

Volumn 22, Issue 1, 2003, Pages 3-20

  Winston, Kenneth ^a  

^a HARVARD UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 79959752836     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.2003.9992135     Document Type: Article

References (84)

1. Jonathan D. Spence, The Question of Hu, New York: Random House, 1988.
2. Alasdair MacIntyre, Incommensurability, Truth, and the Conversation Between Confucians and Aristotelians about the Virtues, In Culture and Modernity: East-West Philosophic Perspectives, ed. Eliot Deutsch, Honolulu: University of Hawaii Press, 1991, p. 110.
3. For elaboration of this approach, see Kenneth Winston, Lessons from the Right to Silence, Legality and Community: On the Intellectual Legacy of Philip Selznick, eds., Robert A. Kagan, Martin Krygier, and Kenneth Winston, Lanham: Rowman & Littlefield, 2002, esp. pp. 399-402.
4. The new constitution was more progressive, in some respects, than U.S. law at the time. For example, it prohibits discrimination based on sex, race, creed, social status, and family origin. But while the constitution has never been formally amended, it has not necessarily been followed either-and that applies to the protection against discrimination as it does to the right to silence.
5. John Owen Haley, Confession, Repentance and Absolution, In Mediation and Criminal Justice: Victims, Offenders and Community, ed. Martin Wright and Burt Galaway, London: Sage Publications, 1989, p. 195.
6. Haley, Authority Without Power: Law and the Japanese Paradox, New York: Oxford University Press, 1991, pp. 129-138.
7. Haley asserts that there are no Western analogues to the Japanese system, but Daniel Foote observes that accounts of the Netherlands, at least before 1975, describe a criminal justice system that bears a striking resemblance to that of Japan, including the extent and types of discretion afforded to criminal-justice officials; the conscious use of leniency (including extensive pretrial diversion);the deliberate deemphasis of imprisonment; the emphasis placed on confessions; and the importance of informal community and social controls.
8. Daniel H. Foote, The Benevolent Paternalism of Japanese Criminal Justice, California Law Review 80 (2) (1992), pp. 384-385.
9. These procedures are discussed by one of the Code's drafters, Shigemitsu Dando, in System of Discretionary Prosecution in Japan, American Journal of Comparative Law 18 (1970), pp. 518-531.
10. Dando, Japanese Criminal Procedure, trans. B. J. George, Jr., S. Hackensack, NJ: Rothman & Co., 1965, pp. 343-345. (Since my sources, even by Japanese authors, are in English, I follow the English convention on name order.)
11. Daniel H. Foote, Confessions and the Right to Silence in Japan, Georgia Journal of International and Comparative Law 21 (1991), p. 476n.
12. David H Bayley, Forces of Order: Policing Modern Japan, Berkeley: University of California, 1991, p. 46.
13. Peter J. Katzenstein, Cultural Norms and National Security: Police and Military in Postwar Japan, Ithaca, NY: Cornell University Press, 1996, p. 63.
14. David H. Bayley, Modes and Mores of Policing the Community in Japan, Law and Society: Culture Learning Through the Law, ed. Richard Vuylsteke, East-West Culture Learning Institute, 1977, p. 75.
15. Bayley, Forces of Order, p. 82.
16. Bayley, Modes, p. 78.
17. Forces of Order, ch. 7.
18. Hiroshi Wagatsuma and Arthur Rosett, The Implications of Apology: Law and Culture in Japan and the United States, Law & Society Review 20:4 (1986), pp. 488-492.
19. Bayley, Forces of Order. Bayley's portrait of the Japanese police has been sharply criticized in recent scholarly work, especially by David T. Johnson in The Japanese Way of Justice: Prosecuting Crime in Japan, New York: Oxford University Press, 2002, and his forthcoming article (brought to my attention by John Kleinig) Police Integrity in Japan, The Contours of Police Integrity, ed. Carl B. Klockars, et al., Thousand Oaks: Sage. Johnson's critique emerges from close attention to bureaucratic determinants of behavior and the exercise of power within the domain of the criminal justice system, rather than elucidation of background social norms as they work themselves out, or become perverted, in criminal justice contexts. The result is an obscuring of the idea that order is sustained through fidelity to right relationships. Not surprisingly, Johnson believes the primary function of a confession is to establish the truth in a case, which is of course a bureaucratic function.
20. See ch. 8, Confessions, pp. 243-275.
21. Setsuo Miyazawa, Policing in Japan: A Study on Making Crime, trans. Frank G. Bennett, Jr., with John O. Haley, Albany: SUNY Press, 1992, p. 81.
22. Foote, Confessions, p. 444.
23. J. Mark Ramseyer and Minoru Nakazato, Japanese Law: An Economic Approach, Chicago: University of Chicago Press, 1999, p. 170.
24. Foote, Confessions, p. 445.
25. I am grateful to my colleague Ashish Nanda for pressing this argument.
26. Walter L. Ames, Police and Community in Japan, Berkely, CA: University of California Press, 1981, p. 136n.
27. Foote, Confessions, p. 420,
28. Haley, Confession, p. 203.
29. Alison W. Conner, True Confessions? Chinese Confessions Then and Now, The Limits of the Rule of Law in China, ed. Karen G. Turner, et al., Seattle: University of Washington, 2000, pp. 139-140.
30. W. Allyn Rickett Describes the historical practice or reducing or remitting punishment for offenders who confessed before their offense was discovered by officials, in Voluntary Surrender and Confession in Chinese Law: The Problem of Continuity, Journal of Asian Studies 30 (4) (1971), pp. 797-814.
31. Conner, p. 157 n37.
32. Erik Eckholm, China Begins to Shine Light on Use of Torture, The New York Times, February 13, 2001, p. A4.
33. Craig S. Smith, Chinese Fight Crime with Torture and Executions, The New York Times, September 9, 2001, p. A1.
34. Robert A. Kagan, Introduction: Comparing National Styles of Regulation in Japan and the United States, Law and Policy 22 (3&4) (2000), p. 230.
35. Recommendations of the Justice System Reform Council: For a Justice System to Support Japan in the 21st Century, June 12, 2001, p. 31. I am indebted to my student, Takayuki Nakamura, for bringing this document to my attention. I should note that many members of the Japanese bar, especially defense lawyers, are critical of current practices and favor changes that would bring Japan into conformity with the U.S. But their criticism appears to reflect their own discomfort with the background social norms, and that discomfort is not necessarily shared by officials.
36. Foote, Confessions, pp. 473-474.
37. John Rawls, The Law of Peoples, Cambridge, MA: Harvard University Press, 1999, p. 56.
38. On U.S. attitudes about promoting democracy in Japan (the revolution from above),
39. John Dower, Embracing Defeat: Japan in the Wake of World War II, New York: W.W. Norton, 1999, esp. ch. 6. Kyoko Inoue argues that the misunderstandings between U.S. text writers and their Japanese translators were such that the two versions of the constitution, in English and in Japanese, have very different meanings. The one speaks in the language of the U.S. constitution; the other speaks in a language much like that of the Meiji constitution. In particular, Inoue believes that the Japanese text does not convey the idea that individuals have rights that the government must protect or is prohibited from infringing. Because the two sides did not realize how great the cultural differences were, they could not correct each other's misunderstandings. (The U.S. principals did not know the Japanese language and had little grasp of Japanese history or culture.) MacArthur's Japanese Constitution: A Linguistic and Cultural Study of Its Making, Chicago: University of Chicago Press, 1991.
40. Haley, Confession, pp. 207-208.
41. For a collection of sympathetic essays,
42. Restorative Justice and Civil Society, ed. Heather Strang and John Braithwaite, Cambridge, UK: Cambridge University Press, 2001.
43. Richard Bronaugh, Is There A Duty to Confess?, APA Newsletter 98 (1) (1998), pp. 86-87.
44. J. M. Coetzee, Confession and Double Thoughts: Tolstoy, Rousseau, Dostoevsky, Doubling the Point: Essays and Interviews, ed. David Atwell, Cambridge, MA: Harvard University, 1992, p. 263.
45. Quoted by Peter Brooks, Troubling Confessions: Speaking Guilt in Law and Literature, Chicago: University of Chicago Press, 2000, p. 109.
46. Brooks, p. 63.
47. Henry M. Hart, Jr., The Aims of the Criminal Law, Law and Contemporary Problems 23 (3) (1958), pp. 69-70.
48. Brooks, p. 74.
49. Kent Greenawalt, The Right to Silence and Human Dignity, The Constitution of Rights: Human Dignity and American Values, ed. Michael J. Meyer and W. A. Parent, Ithaca:Cornell University Press, 1992, pp. 192-209.
50. Michael Walzer, What It Means To Be An American, New York: Marsilio, 1992, p. 110.
51. John Rawls, A Theory of Justice, rev. ed., Cambridge, MA: Harvard University Press, 1999 (1971), pp. 453-456.
52. Philip Selznick, The Moral Commonwealth: Social Theory and the Promise of Community, Berkeley, CA: University of California Press, 1992, pp. 529-531. For elaboration of this point
53. Kenneth Winston, Moral Opportunism: A Case Study, Integrity and Conscience, ed. Ian Shapiro and Robert M. Adams, New York: New York University Press, 1998, pp. 169-172.
54. I served from May 1968 to January 1969 as the first chair of the Columbia College Disciplinary Tribunal. My discussion here draws on Self-Incrimination in Context: Establishing Procedural Protections in Juvenile and College Disciplinary Proceedings, Southern California Law Review 48 (4) (1975), pp. 813-851. The skepticism expressed here about the autonomy justification of the right to silence departs from the uncritical view set forth in my earlier article. 40 The Reed College orientation handbook is available at http://web.reed.edu/life/sa/orientation/Handbook/8_the_honor_principle.html.
55. http://www.mtholyoke.edu/org/csa/honorcode.html.
56. Thomas P. Rohlen, Order in Japanese Society: Attachment, Authority, and Routine, Journal of Japanese Studies 15 (1) (1989), p. 29.
57. Rohlen offers an extended description of childrearing practices in the U.S. and Japan and traces their implications for group attachments.
58. Winston, Lessons, note 3 above, offers an initial formulation of this idea and acknowledges my debt to Richard Pildes.
59. Kenneth Winston, Principles and Touchstones: the Dilemma of Dworkin's Liberalism, Polity 19 (1) (1986), p. 53.
60. Dworkin's analysis has generated considerable muddle on this point. Note the confusion, for example, in David L. Hall and Roger T. Ames, The Democracy of the Dead: Dewey, Confucius, and The Hope for Democracy in China, Chicago: Open Court, 1999, p. 108.
61. Eric Feldman emphasizes this point in his illuminating study, The Ritual of Rights in Japan: Law, Society, and Health Policy, Cambridge, UK: Cambridge University Press, 2000. His principal thesis is that the rhetoric of rights has a long history and a rich present in Japan. The challenge for scholars is to learn by whom rights are asserted, when [or for what purpose], and with what impact.pp. 7 and 143.
62. Mark E. Warren, Democracy and Association, Princeton, NJ:Princeton University Press, 2001, esp. ch. 3.
63. Michael Walzer, The Civil Society Argument, Theorizing Citizenship, ed. Ronald Beiner, Albany, NY: SUNY Press, 1995, p. 169.
64. It is an empirical question whether in any particular society, such as Japan, the reciprocal relations that inhere in multiple and cross-cutting affiliations are displayed primarily within groups (bonding each group's members to one another) or extend beyond groups to a larger collectivity (bridging between groups).
65. Robert Putnam, Bowling Alone: The Collapse and Revival of American Community, New York: Simon & Schuster, 2000, pp. 22-24.
66. Alexis de Tocqueville, Democracy in America, vol. 2, pt. II, ch. 3. Similarly, John Dewey describes the intellectual mistake of regarding The isolated individual [as] possessed of inherent rights 'by nature' apart from association. The Public and Its Problems, Chicago: Swallow Press, 1954, pp. 86-95.
67. Edmund S. Morgan, Those Sexy Puritans, The New York Review of Books, June 27, 2002, p. 15.
68. Edwin Reischauer, The Japanese, Cambridge, MA: Harvard University Press, 1977, p. 152.
69. Bayley, Modes, p. 79.
70. However, compare Tatsuo Inoue's critical view of the tyranny of intermediary communities in The Poverty of Rights-Blind Communality: Looking Through the Window of Japan, Brigham Young University Law Review 1993 (2) (1993), esp. pp. 539 and 545.
71. Frank K. Upham, Law and Social Change in Postwar Japan, Cambridge, MA: Harvard University Press, 1987, on the treatment of the buraku community (ch. 3) and women (ch. 4). Eric Feldman discusses the plight of hemophiliacs in The Ritual of Rights, ch. 4. Reischauer remarks on the extreme ethnocentrism of the Japanese and the minority Korean community's disruptive response, in The Japanese, pp. 35-36.
72. Andrew Gordon, Society and Politics from Transwar through Postwar Japan, Historical Perspectives on Contemporary East Asia, ed. Merle Goldman and Andrew Gordon, Cambridge, MA: Harvard University Press, 2000, p. 289.
73. Feldman suggests that rights-assertion in Japan is more likely on behalf of groups rather than individuals. Feldman, p. 163. I would note, however, that Feldman mentions an exception, without perhaps seeing its significance. Recent legislation in Japan gives citizens the legal right to choose which definition of death applies to themselves, traditional cardio-pulmonary death or brain death.
74. Masahiro Morioka, Reconsidering Brain Death: A Lesson from Japan's Fifteen Years of Experience, Hastings Center Report 31 (4) (2001), pp. 41-46.
75. David Luban, The Warren Court and the Concept of a Right, Harvard Civil Rights-Civil Liberties Law Review 34 (1) (1999), p. 33.
76. Sanford Levinson exposes the incoherence of U.S. case law on testimonial privileges in Testimonial Privileges and the Preferences of Friendship, Duke Law Journal 1984, pp. 631-662.
77. William P. Alford, Exporting 'The Pursuit of Happiness,' Harvard Law Review 113 (7) (2000), p. 1678.
78. For a representative expression of this view,
79. William Jefferson Clinton, Remarks By the President [at] Freedom House, October 6, 1995, in Clinton Administration Foreign and Security Policy: Fact Sheets and Selected Addresses, The White House, September, 1996.
80. Seth Mydans, In a Contest of Cultures, East Embraces West, The New York Times, March 12, 2003, p. A4.
81. The quote from Steven Calabresi is cited by Bruce Ackerman, The New Separation of Powers, Harvard Law Review 113 (3) (2000), p. 634.
82. These and other examples are mentioned by Frederick Schauer, The Politics and Incentives of Legal Transplantation, Governance in a Globalizing World, ed. Joseph S. Nye and John D. Donahue, Washington, D.C.: Brookings, 2000, pp. 253-268.
83. Alan Watson, Legal Transplants: An Approach to Comparative Law, Charlottesville: University Press of Virginia, 1974. On the mistaken belief that social arrangements are infinitely pliable,
84. Lon Fuller, Means and Ends, The Principles of Social Order: Selected Essays of Lon L. Fuller, rev. ed., ed. Kenneth Winston, Oxford, UK: Hart Publishing, 2001, p. 70.