¹ Earl, David M., Emperor and Nation in Japan (Seattle: University of Washington Press, 1964);Google ScholarFairbank, John et al. , A History of East Asian Civi1ization—East Asia: The Great Tradition (Boston: Houghton-Mifflin, 1960);Google Scholar and Henderson, Dan Fenno, Conciliation and Japanese Law: Tokugawa and Modern, 2 vols (Seattle: University of Washington Press, 1968), vol. I.Google Scholar

² Henderson, Dan Fenno, ‘Law and Political Modernization in Japan,’ in Ward, Robert E. (ed.), Political Development in Modern Japan (Princeton: University Press, 1968);Google Scholar and Tanaka, Hideo (ed.), assisted by Smith, Malcolm D. H., The Japanese Legal System (Toyko: University of Tokyo Press, 1976), pp. 194–253.Google Scholar For a concise historical analysis of rights in the West, see Claude, Richard P., ‘The Classical Model of Human Rights Development,’ in Claude, Richard P. (ed.), Comparative Human Rights (Baltimore: Johns Hopkins University Press, 1976), pp. 6–50.Google Scholar

³ Okudaira, Yasuhiro, Political Censorship in Japan, 1931–1945 (Philadelphia: University of Pennsylvania Law School Library, 1962), esp. pp. 1–50.Google Scholar

⁴ Probably the most valuable compilation of detailed studies and official trial records of group political actions in Japan from the 1860s till the Pacific War is Seiji saiban shiroku, 5 vols (Daiichi Hōki, 1969–1970)Google Scholar, edited by Daiichi Hōki publishing co. An additional five volumes on recent decades were published in 1980. These studies amply illustrate preferences for group, as opposed to individual, assertiveness, and for other traditional values (referred to later in this paper) which antedated but are not integrated with Western legal ideas of justice.

⁵ Spinrad, William, Civil Liberties (Chicago: Quadrangle Books, 1970), pp. 5–26, 292–306.Google Scholar See Okudaira, , Political Censorship in JapanGoogle Scholar; Mitchell, Richard, Thought Control in Prewar Japan (Ithaca: Cornell University Press, 1976);Google Scholar and Steinhoff, Patricia, ‘Legal Control of Ideology in Prewar Japan,’ unpublished paper, International Congress of Orientalists, Canberra, Australia, 1970.Google Scholar

⁶ See Legal Reforms in Japan during the Allied Occupation, special reprint volume, Washington Law Review, 1970.

⁷ ‘Article 9. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.

‘2. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.’ The Constitution of Japan, in Itoh, and Beer, , The Constitutional Case Law of Japan (Seattle: University of Washington Press, 1978), p. 258.Google Scholar According to Chalmers Johnson, the Japanese senryoku, the usual Japanese translation of war potential in paragraph 2 of Article 9, is a mistranslation, as senryoku means fighting power or strength, something more limited than war potential. The constitution does not, therefore, limit senbi or gunbi which have the wider meaning implied in war potential, and which, owing to japan's industrial potential, is considerable. Johnson, C., ‘Omote (Explicit) and Ura (Implicit): Translating Japanese Political Terms,’ Journal of Japanese Studies, Vol. 6, No. 1, (Winter 1980, p. 114CrossRefGoogle Scholar

⁸ «Article 4. The Emperor shall perform only such acts in matters of state as are provided for in this Constitution and he shall not have powers related to government.’ Ibid., p. 257.

⁹ Beer, Lawrence W., ‘Education, Politics and Freedom of Expression in Japan: the lenaga Textbook Review Cases,’ Law in Japan: An Annual, Vol. 8 (1975), 67–90;Google ScholarSuleski, Ronald, ‘A New Generation of Japanese Intellectuals,’ Japan Foundation Newsletter, 6, No. 4 (10–11, 1978), pp. 10–12.Google Scholar

¹⁰ The Constitution of Japan was promulgated on November 3, 1946 and went into effect on May 3, 1947. The amendment provision in The Constitution of the Empire of Japan was as follows: ‘Article 73. When it has become necessary in future to amend the provisions of the present Constitution, a project to the effect shall be submitted to the Imperial Diet by Imperial Order.

‘2. In the above case, neither House can open the debate, unless not less than two-thirds of the whole number of Members are present, and no amendment can be passed, unless a majority of not less than two-thirds of the Members present is obtained.’ Tanaka, , Japanese Legal System, p. 23.Google Scholar

¹¹ On the history of the revision controversy, see Fukui, Haruhiro, ‘The Liberal Democratic Party and Constitutional Revision,’ in Sissons, David (ed.), Papers on Modern Japan (Canberra: Australian University Press, 1968)Google Scholar, and ‘Twenty Years of Revi sionism,’ in Henderson, Dan Fenno (ed.), The Constitution of Japan: Its First Twenty Years (Seattle: University of Washington Press, 1969), pp. 41–70;Google Scholar and Neumann, Reinhard, The Inaba Affair, Constitution Day and Constitutional Revision,’ Law in Japan: An Annual, Vol. 9 (1976), pp. 129–43.Google Scholar

¹² Max Gluckman's distinction between ‘rituals of rebellion’ and ‘revolution’ may apply to the 1860 Security Treaty Crisis and to some aspects of the University Crisis of 1969. Revolution seeks to overthrow the whole existing order, while ritual rebellion, which may be a luxury limited to societies like Japan with a stable established order, reaffirm the system in venting tensions between leaders and led and between viewpoints. In this connection, see Max Gluckman, Custom and Conflict in Africa and Politics, Law, and Ritual in Tribal Society; and Doi, Takeo (Bester, John, trans.), Anatomy of Dependence (Tokyo: Kodansha International, 1973).Google Scholar

¹³ On the Security Treaty Crisis, see Packard, George R. III, Protest in Tokyo: The Security Treaty Crisis of 1960 (Princeton: Princeton University Press, 1966);CrossRefGoogle ScholarRabinowitz, Richard, ‘Law and the Social Process in Japan,’ The Transactions of the Asiatic Society of Japan, Third Series, Vol. 10 (1968): 54–71;Google ScholarMaki, John M., Government and Politics in Japan (New York: Praeger Publishers, 1962);Google ScholarScalapino, Robert and Masumi, Junnosuke, Parties and Politics in Contemporary Japan (Berkeley and Los Angeles: University of California Press, 1962).Google Scholar

¹⁴ Japan v. Sakata, 23 Keishū 3225 (Sup. Ct., Grand Bench, December 16, 1959) For a translation, see Maki, John M. (ed), Court and Constitution in Japan (Seattle: University of Washington Press, 1964), pp. 298–361.Google Scholar

¹⁵ Japan v. Sakane et al., 13 Keishū (No.5) 685 (Sup. Ct., Grand Bench, April 2, 1969). A translation appears in Itoh, and Beer, , Constitutional Case Law of Japan, pp. 103–30.Google Scholar

¹⁶ See the opinion poll survey reports in Asahi Shinbun, November I, 1978 and January 1, 1979.

¹⁷ Takayanagi, Kenzō (Maki, John, trans.), ‘The Conceptual Background of the Constitutional Revision Debate in the Constitution Investigation Commission,’ Law in Japan: An Annual, Vol. 1 (1967): 1–24;Google ScholarWard, Robert E., ‘The Commission on the Constitution in the Prospects of Constitutional Change in japan,’ Journal of Asian Studies, Vol. 24 (1965): 401–30;CrossRefGoogle ScholarMaki, John M., ‘The Documents of Japan's Commission on the Constitution,’ Journal of Asian Studies, Vol. 24 (1965): 475–89;CrossRefGoogle Scholar and the final report of the Commission on the Constitution, Kenpō Chōsakai Hōkokusho (Ōkurashō Insatsukyoku, 1964). For commentaries, see Hōritsu Jihō 419 (August, 1964): 363–74, and Jurisuto 303 (August, 1964): 10–26. A study group, Kenpō Mondai Kenkyūkai, opposing the Commission on the Constitution, Kenpo Chōsakai Kenpō Chōsakai Hōkokusho (Ōkuraslō Insatsukyoku, 1964). Iwanami Shoten, 1964).

¹⁸ Asahi Shinbun, November 1, 1978 and January 1, 1979.

¹⁹ Such loyalty is especially emphasized among white collar workers. See Linhart, Sepp, Arbeit, Freizeit und Familie in Japan, with a summary in English (Weisbaden: Otto Harrassowitz, 1976)Google Scholar, and Rohlen, Thomas, For Harmony and Strength, Japanese While-Collar Organization in Anthropological Perspective (Berkeley: University of California Press, 1974).Google Scholar

²⁰ The distribution of seats in both Houses of the Diet inJuly 1980 was as below. For perspective, statistics after the prior two lower house elections and the last upper house election are included. The sudden jump in LDP strength in 1980 was attendant to the In the 1970s, independents usually joined with the LDP, thus assuring it a parliamentary majority. The New Liberal Club is a moderate conservative group which split off from the LDP in the mid-1970s, but often votes with it.

²¹ The Constitution of Japan, Article 96:

‘Amendments to this Constitution shall be initiated by the Diet, through a concurring vote of two-thirds or more of all the members of each House and shall thereupon be submitted to the people for ratification, which shall require the affirmative vote of a majority of all votes cast thereon, at a special referendum or at such election as the Diet shall specify.

‘2. Amendments when so ratified shall immediately be promulgated by the Emperor in the name of the people, as an integral part of this Constitution.’ Itoh and Beer, Constitutional Case Law of Japan, p. 268.

²² Beer, Lawrence W., ‘Nihon no saibankan,’ Jurisuto, no. 700, 09 15, 1979.Google Scholar Annually, Hōsō Jihō (Hōsōkai) publishes authoritative statistical reports on cases dealt with by the courts, and Hōoritsu Jihō (Nihon Hyōronsha) carries reviews of both constitutional case law and constitutional studies (kenpōgaku). Although the Supreme Court's share in the judicial caseload is only a small fraction of the whole, by the end of 1977, it had ‘taken cognizance of 183,496 cases, out ofwhich 1,045 cases were referred to the Grand Bench ‘by petty benches’, and in 263 cases the Court declared a law, order, regulation or official act unconstitutional.’ Justice in Japan (Tokyo: Supreme Court of Japan, 1978), p. 19.Google Scholar

²³ Family courts, summary courts, and various modes of lay participation in dispute resolution are briefly described in Justice in japan. pp. 14–17, 23–6. Concerning the Civil Liberties Bureau and Commissioners, see Beer, Lawrence W. and Weeramantry, C. G., ‘Human Rights in Japan: Some Protections and Problems,’ Universal Human Rights, No. 3, 1979, pp. 1–33.CrossRefGoogle Scholar

²⁴ Concerning Japan's court system and judges, see Itoh and Beer, Constitutional Case Law of Japan, pp. 7–21, 250–5; and, on barriers to civil litigation, Haley, John Owen, ‘The Myth of the Reluctant Litigant,’ Journal of Japanese Studies, (summer, 1978): 359–90.CrossRefGoogle Scholar In Japanese, Hideo, Wada, Saikō saibansho ron (Nihon Hyōronsha, 1970)Google Scholar, and Saikō saibansho (Hōgaku seminah-Nihon Hyōronsha, 1977).

²⁵ For example, Abe v. Japan, 20 Keishū (No. 6) 537 (Sup. Ct., Second Petty Bench, July 1, 1966), translated in Itoh and Beer, Constitutional Case Law of Japan, p. 167–8.

²⁶ See, for example, Japan v. Ozawa, 28 Keishū (No. 9) 393 (Supreme Court, Grand Bench, November 6, 1974); for comments, see Beer, Lawrence W., ‘Recent Developments—Constitutional Law,’ Law in Japan: An Annual, Vol. 8 (1975): 205–8Google Scholar, and Ukai, Nobushige, ‘The Significance of the Reception of American Constitutional Institutions and Ideas in Japan,’ in Beer, L. W. (ed.), Constitutionalism in Asia (Berkeley and Los Angeles: University of California Press, 1979), pp. 123–6.Google Scholar See generally ‘Kenpō no sōten,’ Jurisuto zōkan (05, 1978)Google Scholar; ‘Nihonkoku kenpō,’ Jurisuto rinji zōkan, 638 (05, 1977)Google Scholar; ‘Kenpō 30nen no riron to tenbō,’ Hōritsu Jihō rinji zōkan (05 1977);Google ScholarNaoki, Kobayashi, Kenpō handan no genri, 2 vols (Nihon Hyoronsha, 1978);Google Scholar and Nobuyoshi, Ashibe (ed.), Kenpō (Yōhikaku, 1978), Vol. 2.Google Scholar

²⁷ The Otsu Case (1891) and the Meiji Constitution established judicial independence for the first time in Japan. As Kenz Takayanagi notes: ‘In a sense, the Otsu Incident and its legacy contradict the basic thesis advanced by the Western scholars interviewed by Kaneko: the inclusion in the Constitution of an institution quite foreign to the Japanese scene provided the foundation on which a tradition of judicial independence very quickly emerged.’ Takayanagi, supra n. 17. See also Galanter, Marc, ‘The Displacement of Traditional Law in Modern India,’ Journal of Social issues 24 (1968): 65–91.CrossRefGoogle Scholar

²⁸ See Tanaka, (ed.), Japanese Legal System, pp. 642–85 and works cited therein.Google Scholar

²⁹ A good presentation of these views is Reinhard Neumann, ‘The Inaba Affair, Constitution Day and Constitutional Revision,’ supra, n. 11.

³⁰ Itoh, Hiroshi, ‘Judicial Decision-making in the Japanese Supreme Court,’ Law in Japan: An Annual, vol. 3 (1969): 128–61;Google ScholarYokota, Kisaburo, ‘Political Questions and Judicial Review,’ Henderson, (ed.), Constitution of Japan, pp. 141–66;Google ScholarWada, Hideo, ‘Decisions under Article 9 of the Constitution: The Sunakawa, Eniwa, Naganuma Decisions,’ Law in Japan: An Annual 9 (1976): 117–28;Google Scholar ‘Recent Developments,’ ibid.: 153; Seymour, Robert L., ‘Japan's Self-Defense: The Naganuma Case and Its Implications,’ Pacific Affairs, Vol. 47 (1974–1975): 421;CrossRefGoogle Scholar and Tagawa, Kenneth M., Justiciability and Judicial Power in Japan, unpublished Ph.D. dissertation, University of Colorado, 1979.Google Scholar

³¹ Seidensticker, Edward, ‘Japan After Vietnam,’ Commentary (09, 1976): 56.Google Scholar

³² Piovesana, Gino, Recent Japanese Philosophical Thought (Tokyo: Enderle Bookstore, 1961);Google ScholarMoore, Charles A. (ed.), The Japanese Mind (Honolulu: East-West Center Press, 1968);Google ScholarToshiyoshi, Miyazawa, Kenpō (Yūhikaku, 1962).Google Scholar

³³ Steenstrup, Carl, ‘The Company Code,’ Asian Law Forum, Vol. 1 (1976): 21–5.Google Scholar

³⁴ Nakane, Chie, Japanese Society (Berkeley and Los Angeles: University of California Press, 1970).Google Scholar

³⁵ The term ‘reciprocal dependency’ is taken from Mitchell, Douglas D., Amae: The Expression of Reciprocal Dependency Needs in Japanese Politics and Law (Boulder, Colorado: Westview Press, 1976).Google Scholar Mitchell seems to this writer to present Takeo Doi's important views on dependency more systematically and more clearly than Doi himself. See also Doi, Takeo, Anatomy of Dependence.Google Scholar

³⁶ Ryūichi Nagao, in a review of Minear, R., Japanese Tradition and Western Law (Cambridge, Mass.: Harvard University Press, 1970)CrossRefGoogle Scholar, in Law in Japan: An Annual 5 (1972): 224.Google Scholar A comparative study of the meanings and objects of loyalty would be very helpful as a step toward clarifying the bases of intercultural disagreements.

³⁷ Chikio, Hayashi et al. , Nipponjin no kokuminsei (Shiseido, 1970);Google Scholar and Chikio, Hayashi, ‘Seiji ishiki no seitai,’ Asahi Shinbun, 12 16, 1978, p. 4.Google Scholar See also the comprehensive survey report in Asahi Shinbun, January 1, 1979, pp. 1, 10–13.

The term ‘feudal,’ often used pejoratively to criticize traditional aspects of modern Japan, is usually applied to factors such as the family system which predated feudalism by centuries and which made Japanese feudalism different from other feudalisms such as those of Western Europe. See des Longrais, F. Joūon, L'est ci l'ouesi, instiutions du Japon et de l'occident comparées (Paris and Tokyo, 1958).Google Scholar This writer does not share a uniformly negative view of Japanese-style ‘feudalism’ as it functions today.

³⁸ Hayashi, ‘Seiji ishiki no seitai.’ Only a small percentage (c. 20%) of Japanese expressed much trust in politicians in late 1978 compared, for example, to tax officials (c. 45%), judges, teachers, police, doctors, newspapers, and weather forecasters, among whom the last in the ascending order were the most trusted. Asahi Shinbun, October 22, 1978 and January 1, 1979. My only explanation for the extraordinary trust offorecasters is good-humored Japanese stress on distrust of other categories. Newspapers are trusted institutions, but the results may have been skewed to their advantage by the fact that the newspapers did the polling.

³⁹ The Constitution of Japan, Article 97 in the ‘Supreme Law’ chapter ofthe Constitution reads: ‘The fundamental human rights by this Constitution guaranteed to the people of Japan are fruits of the age-old struggle of man to be free; they have survived the many exacting tests for durability and are conferred upon this and future generations in trust, to be held for all time inviolate.’

⁴⁰ On the severe limitations on the emperor's political role as an individual in the Tokugawa period (1600–1868), see Webb, Herschel, The Japanese Imperial Institution in the Tokugawa Period (New York: Columbia University Press, 1968)Google Scholar, and for the period 1868–1946, see Titus, David A., Palace and Politics in Prewar Japan (New York: Columbia University Press, 1974),Google Scholar and Modern Asian Studies, 14, 4 (1980), p. 529.CrossRefGoogle Scholar

⁴¹ Regarding the police, who enjoy considerable public respect and trust in Japan, see Bayley, David H., Forces of Order: Police Behavior in Japan and the United States (Berkeley: University of California Press, 1976).Google Scholar

Takayanagi Kenzō noted that prewar debates on constitutionality involved political rhetoric, but rarely justiciable rights; supra, n. 32. ‘Conciliable rights’ is meant to express the prevalent style of dispute resolution, involving a third-party status bearer (informal or official) pursuing compromise and formal harmony. On Japanese right consciousness, see Beer, Lawrence W., ‘Freedom of Expression in Japan with Comparative Reference to the United States,’ in Claude, (ed.), Comparative Human Rights, pp. 101–9;Google ScholarHenderson, , Conciliation and Japanese Law.Google Scholar

⁴² Discussions in 1978 and 1979 with Itō Masami and Shimizu Hideo. They consider press freedom more critical to democracy in Japan than in most countries.

⁴³ The Constitution of Japan, ‘Article 81. The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.’ Itoh and Beer, Constitutional Case Law of Japan, p. 266. Lower courts, by judicial decision and Article 76, also have the power of judicial review.

⁴⁴ Beer and Weeramantry, ‘Human Rights in Japan.’

⁴⁵ Article 81 of the Constitution of Japan. Article 76 is also critical: ‘The whole judicial power is vested in a Supreme Court and in such inferior courts as are established by law.

‘2. No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive be given final judicial power.

‘All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws.’ Itoh, and Beer, , Constitutional Case Law of Japan, p. 265.Google Scholar

For a study of the prewar administrative court system, to which paragraph 2 of Article 76 is in part a reaction, see Wada, Hideo, ‘The Administrative Court under the Meiji Constitution,’ Law in Japan: An Annual 10 (1977): 1–64.Google Scholar

⁴⁶ For comparative perspectives, see Beer, (ed.), Constitutionalism in Asia;Google ScholarDuchacek, Ivo, ‘Constitutions: Adapting to Change,’ Power Maps: Comparative Politics of Constitutions (Santa Barbara: ABC Clio Press, 1973), pp. 210–32;Google ScholarClaude, , Comparative Human Rights;Google ScholarBayley, David H., Public Liberties in the New States (Chicago: Rand McNally & Co., 1964).Google Scholar On judicial roles in civil law systems, see Merryman, John Henry, The Civil Law Tradition (Stanford: Stanford University Press, 1969);Google ScholarSchlesinger, Rudolf B., ‘Common Law and Civil Law: A Historical Comparison,’ Comparative Law, 2nd edition (Brooklyn: Foundation Press, 1959), pp. 179–98.Google Scholar

⁴⁷ Article 4, Court Organization Law, Law No. 59 of April 16, 1947. See Itoh, and Beer, , Constitutional Case Law of Japan, pp. 7–11, 251–5;Google ScholarHaley, , ‘Myth of the Reluctant Litigant,’ pp. 381–9Google Scholar; and on the effect of an unconstitutional judgment, Ukai in Beer, Constitutionalism in Asia.

⁴⁸ Discussions with judges, Tokyo, 1978–1979.

⁴⁹ Haley, ‘Myth of the Reluctant Litigant,’ pp. 387–90.

⁵⁰ Conversation with Matsuo Kōya, specialist in criminal procedure law, 1979. Bayley, , Forces of Order, pp. 141–4.Google Scholar Civil liberties lawyer Ono Masao says police brutality is very rarely a problem; ibid., pp. 165–6.

⁵¹ Haley, , ‘Myth of the Reluctant Litigant’;Google ScholarRokumoto, Kahei, ‘Problems and Methodology of Study of Civil Disputes,’ pt 1, Law in Japan: An Annual 5 (1972): 97–114, and pt 2, 6 (1973): 111–27.Google Scholar

⁵² Beer, in Claude, (ed.), Comparative Human Rights, pp. 101–9.Google Scholar

⁵³ On the other hand, individual dissent and post-consensus dissent from the views of one's in-group seem notably limited in Japan. However, pre-consensus debate within one's group is relatively uninhibited (except by the seniority order of presentation), as is expression of group disagreement with government policies or the opinions of ‘outsiders’ of whatever kind. See Beer in ibid.

⁵⁴ See Bayley, , Forces of Order, pp. 172–83.Google Scholar

⁵⁵ Freedom of assembly can be regulated under Article 7 of Dōrō Kōtsūhō (Law 105 of 1960), Article 19 of Densenbyō yobōhō (Law 36 of 1897), Articles 5 and 7, Hakai katsudō bōshihō (Law 240 of 1952), Articles 106 and 107, Keihō, and Article 4 of Ministry of Welfare Order No. 19 of 1949 (Official Gazette, No. 938); and by public safety ordinances.

⁵⁶ On public safety ordinances and their use, see Beer, in Claude, (ed.), Comparative Human Rights.Google Scholar

⁵⁷ Japan v. Itō, 14 Keishū 1243 (Sup. Ct., Grand Bench, July 20, 1960). For a translation and the ordinance in question, see Maki, (ed.), Court and Constitution in Japan, pp. 84–116.Google Scholar For an analysis, see Beer, in Claude, , Comparative Human Rights, pp. 115–18.Google Scholar

⁵⁸ The Supreme Court can and does on occasion reverse its own precedent. For examples, see Cases 7 and 24 in Itoh, and Beer, , Constitutional Case Law of Japan.Google Scholar

⁵⁹ Japan v. Sugino, 4 Keishū 2012, 1014 (Sup. Ct., Grand Bench, 1950).

⁶⁰ See Toshiyoshi, Miyazawa, Nihonkoku kenpō (Nihon Hyōronsha, 1963), p. 205;Google Scholar and Keiichi, Yamamoto, ‘Kōkyō no fukushi,’ in Jirō, Tanaka (ed.), Nihonkoku kenpō taikei, Vol. 8 (Yūhikaku, 1961), p. 16.Google Scholar On legal theories in Japan on the public welfare, see Isao, Satō, Kenpō Kenkū Nyūmon, 3 vols (Nihon Hyōronsha, 1966) 2: 25–117.Google Scholar

⁶¹ Nobuyoshi, Ashibe et al. , ‘Kenpō hanrei no 30nen,’ Jurisuto, special issue (05 3, 1977): 452, 453Google Scholar, and in the same issue commemorating the thirtieth anniversary of Japan's constitution, see Masami, Itō, ‘Kenpō kaishaku to rieki kōryōron,’ p. 200Google Scholar, on the increased judicial use of an interests-balancing approach. See in general this issue of Jurisuto and Kenpō sanjūnen no riron to tenbō, Hōritsu Jihō, rinji zōkan (May, 1977), on Japan's constitutionalism.

⁶² See Asahi Shinbun, July 17, 1970 (Sup. Ct., Petty Bench, July 16, 1970); conversations with Justice Irie Toshio, January, 1971.

⁶³ See, for example, Japan v. Sakane et al., supra n. 15, and Toyama et al. v. Japan, 20 Keishū (No. 8) 901 (Sup. Ct., Grand Bench, October 26, 1966), in Itoh and Beer, Constitutional Case Law of Japan, pp. 85–130. See also Rōdiō to jinken (Hōgaku seminah-Nihon Hyōronsha, 1978).

⁶⁴ Japan v. Ozawa, 28 Keishū (No. 9) 393 (Sup. Ct., Grand Bench, November 6, 1974). For comment, see Ukai, in Beer, (ed.), Constitutionalism in Asia, pp. 122–5;Google Scholar and ‘Recent Developments—Constitutional Law,’ Law in Japan: An Annual 8 (1975): 205–8.Google Scholar

⁶⁵ On the courts and media, see Beer, Lawrence W., ‘Freedom of Information and the Evidentiary Use of Film injapan….’, The American Political Science Review 65 (1971): 1119–34;CrossRefGoogle ScholarGenron to masu komi (Hōgaku seminah-Nihon Hyōronsha, 1978);Google ScholarGendai no masu komi, Jurisuto, sōgōtokushi No. 5 (October 1976); Ito, Masami et al. , Broadcasting in Japan (London: Routledge and Kegan Paul, 1978);Google ScholarMasao, Horibe, Akusesuken towa nanika (Iwanami Shinsho, 1978).Google Scholar

⁶⁶ Nishiyama v. Japan, Hanrei Jihō 887 (July 11, 1978): 14–41 (Sup. Ct., First Petty Bench, May 31, 1978); Brown, Ronald G., ‘Government Secrecy and the “People's Right to Know” in Japan: Implications of the Nishiyama Case,’ Law in Japan: An Annual 10 (1977); 112–39.Google Scholar See also the final report of the Secrecy and Disclosure Subcommittee, Senate Select Committee on Intelligence, October, 1978, U.S. Senate.

⁶⁷ Beer, Lawrence W., ‘Defamation, Privacy and Freedom of Expression in Japan,’ Law in Japan: An Annual 5 (1972): 192–208;Google ScholarMasami, Itō, Puraibashii no kenri (Iwanami Shoten, 1963);Google ScholarHideo, Shimizu, Hō to masu komyūnikēshon (Shakai Shisōsha, 1970);Google Scholar and Meiyo-puraibashii no shintenkai, Jurisuto, 653 (December 1, 1977). On rights of the person in the United States, see Pember, Don R., Privacy and the Press (Seattle: University of Washington Press, 1972);Google Scholar and Miller, Arthur R., The Assault on Privacy (Ann Arbor: University of Michigan Press, 1971).Google Scholar

⁶⁸ Conversation with Onizuka Kentarō, Head, Civil Liberties Bureau, Justice Ministry, October, 1978. See Beer and Weeramantry, ‘Human Rights in Japan,’ p. 13. Mura hachibu, ostracism from the village, was the prototype of this powerful sanction, but for the Tokugawa period, machi hachibu (ostracism from commercial districts of towns and cities) was also common. See Nihon Keizai Jiten (Nihon hyoronsha, 1943), p. 1844.Google Scholar Today mura hachibu is the official catch-all term for illegal ostracism. In the cities, mura hachibu may even include ostracism of a housewife in a modern apartment complex by other women living there.

⁶⁹ Arita v. Mishima, 15 Kakyū Minshū (No. 9) 2317 (Tokyo district court, September 28, 1964). For Donald Keen's translation of the novel at issue, see Mishima, Yukio, After the Banquet (New York: Alfred A. Knopf, 1963).Google Scholar On private enforcement of rights, see Tanaka, Hideo and Takeuchi, Akio, ‘The Role of Private Persons in the Enforcement of Law: A Comparative Study of Japanese and American Law,’ Law in Japan: An Annual 7 (1974): 34–50.Google Scholar The Civil Code provisions are:

‘Article 709. A person who violates intentionally or negligently the right of another is bound to make compensation for damage arising therefrom.

‘Article 710. A person who is liable in compensation for damages in accordance with the provisions of the preceding Article shall make compensation therefor even in respect of a nonpecuniary damage, irrespective of whether such injury was to the person, liberty or reputation of another or to his property rights.’

A theory which would directly apply such constitutional guarantees as good name and privacy without reference to code provisions seems to have little support. See Ukai, in Beer, , Constitutionalism in Asia, p. 122Google Scholar; and Ashibe, , Kenpō, pp. 39–979.Google Scholar

⁷⁰ Hasegawa v. Japan, 23 Keishū 1625 (Sup. Ct., Grand Bench, December 24, 1969). For a translation, see Itoh, and Beer, , Constitutional Case Law of Japan, pp. 178–82.Google Scholar Similar specification of the public welfare as what is necessary for criminal justice is used by the same court in Kaneko v. Japan, 23 Keishū 1490 (Sup. Ct., Grand Bench, November 26, 1969), translated in ibid., pp. 26–50.

⁷¹ Katō v. Shūkan Jitsuwa, Hanrei Jihō 537 (1968) 28 (Tokyo district court, November 25, 1968), and Shūkan Jitsuwa v. Katō, Jurisuto 449 (1970): 128 (Tokyo high court, December 25, 1969).

⁷² ‘Eros + Gyakusatsu’ Case, Kamichika v. Art Theatre Guild, Jurisuto 449 (1970): 21Google Scholar (Tokyo district court, March 14, 1970), and 23 Kōminshū (No. 2) 172 (Tokyo high court, April 13, 1970). See also, Asahi Shinbun, April 13 and 14 (morning and evening edns).

⁷³ Kawabata v. Chikuma Shobo et al., Tokyo district court, 1977. See Japan Times Weekly Edition, August 27, 1977. Burakumin are still discriminated against socially, despite laws to the contrary, as noted in the concluding section of this paper.

⁷⁴ See the statistics for both civil and criminal defamation in annual reports in Hōsō Jihō (Hōsōkai).

⁷⁵ For example, at least until the 1970s, on a per capita basis France and Germany had roughly 200 times as many defamation suits and ten times more convictions than Japan. See Igarashi, K. and Tamiya, H., Meiyo to puraibashii (1968), pp. 74–78;Google ScholarJurisuto 332 (1965): 60; and jurisuto 653 (1970).

⁷⁶ Conversations with Judge Mutō Shunkō, Legal Training and Research Institute, in July, 1973 and December, 1978. The sharp rise in civil defamation suits peaked in 1973 and thereafter leveled off.

⁷⁷ The term ‘waisetsu’ (obscenity) and punishment of its ‘public display or sale’ first appeared in Article 259 of the Criminal Code of 1880. Article 175 of the 1907 revised Criminal Code remains today the primary legal provision for restraint of obscenity, amended only in 1947 by the addition of imprisonment to fines as possible penalties. See Shimizu, Hō to masu komyūnikēshon, and Yasuhiro, Okudaira, Hyōgen no jiyū towa nanika (Chūōkōronsha, 1970).Google Scholar

⁷⁸ Shimizu, , Hō to masu komyūnikēshon, pp. 170–89, presents historical perspective on Japan's obscenity law.Google Scholar

⁷⁹ Itō et al. v. Japan, 11 Keishū (No. 3) 997 (Sup. Ct., Grand Bench, March 13, 1957); a translation is in Maki, Court and Constitution in Japan, pp. 3–37.

⁸⁰ Ishii et al. v. Japan, 23 Keishū (No. 10) 1239 (Sup. Ct., Grand Bench, October 15, 1969); all opinions are translated in Itoh, and Beer, , Constitutional Case Law of Japan, pp. 183–217.Google Scholar

⁸¹ Ministry of Justice, Japan, Criminal Statutes (n.d.), Vol. I, p. 39.

⁸² See Maki, , Court and Constitution in Japan, p. 7.Google Scholar

⁸³ Itoh, and Beer, , Constitutional Case Law of Japan, p. 184.Google Scholar See also Kim, Chin, ‘Constitution and Obscenity:Japan and the U.S.A.,’ American Journal of Comparative Law 23 (1975): 255.CrossRefGoogle Scholar

⁸⁴ Masami, Itō and Hideo, Shimizu (eds), Masu komi hōrei yōran (Gendai Jānarizumu Shuppankai, 1966);Google Scholar Shimizu, Hō to masu komjūnikēshon; Okudaira, Hyōgen no jiyū towa nanika.

⁸⁵ Discussions with Itō Masami, a member of Eirin, August 1979. Concerning Eirin, see Kondankai, Masu Komi Rinri (ed.), Masu komi no shakai sekinin (Nihon Shinbun Kyōkai, 1966)Google Scholar, hereafter cited as Sekinin. On Japan's film industry see also Anderson, J. I. and Richie, D., The Japanese Film: Art and Industry (New York: Grove Press, 1960).Google Scholar

⁸⁶ Japan v. Murakami et al., Hanrei Jihō 571 (November 11, 1969): 19 (Tokyo high court, September 17, 1969).

⁸⁷ Japan v. Nikkatsu Co., Hanrei Jihō 897 (October 11, 1978): 39–53 (Tokyo district court, June 23, 1978); Asahi Shinbun, June 23 (evening edn), 24, 1978. ‘Black Snow’ was also a Nikkatsu film. In the 1970s Nikkatsu turned out a series of sexually explicit films allegedly to help clear up debts due to legal fees in an earlier case, and due to the depression of Japan's film industry. Japan Times, November 4, 1977; Asahi Shinbun, January 28 (evening edn), (evening edn), February 11, May 25, and June 21, 1972; and Hideo, Fujiki, ‘Eirinjiken o meguru hōritsu mondai,’ Jurisuto 504 (05 1, 1972): 56.Google Scholar For ‘Poruno sangyō toshite no Nihon eiga,’ see Asahi Janaru (April 28, 1972): 38; also Jurisuto, special issue (December to, 1970).

⁸⁸ This was done under the Customs Standards Law (Kanzei teiritsu hō), Law 54 of April 11, 1911, Article 11, which is in Itō and Shinbun, Masu komi hōreiyōran, p. 75.

⁸⁹ For examples of seizures at airports, see Asahi Shinbun, January 17, 1979.

⁹⁰ Hanrei Jihō 707 (1973): 16 (Tokyo high court, April 26, 1973).Google Scholar

⁹¹ Sekinin, pp. 51–75. (This book, available only at the offices of the Nihon Shinbun Kyōkai, remains a principal source of information on private regulatory systems.) In addition to the criminal and customs law provisions already mentioned, obscenity is also regulated under Kōgyō hō (Law 137 of July 10, 1948), Fuzoku eigyō torishimari hō, Kankyō eisei hō, Denpa hō, Hōsō hō, and local youth protection ordinances.

⁹² Sekinin, pp. 273, 64.

⁹³ Asahi Shinbun, January 22, 1979, an interview with Nunokawa Kakuzaemon, President, Publication Ethics Council, and member, Tokyo Youth Protection Council.

⁹⁴ Sekinin, p. 208; and Nihon Keizai Shinbun, July 12, 1978.

⁹⁵ Nihon Keizai Shinbun, July 12, 1978. For example, amidst widespread parental and public concern, pornography vending machines in Saitama Prefecture increased from 887 in August, 1977 to 2,116 on July 31, 1978. After a great many warnings, police seized two machines in October, 1978. Asahi Shinbun, October 10, 1978.

⁹⁶ For example, occasionally imported Western films restricted to adult-oriented theatres in the United States are shown on commercial television in Japan. See also Asahi Shinbun, September 22, 23, and December 12 (evening edn), 1978.

⁹⁷ Ibid.

⁹⁸ Spinrad, , Civil Liberties, pp. 5–26, 292–306.Google Scholar On the law and experience of the United States, see The Report of the Commission on Obscenity and Pornography (New York: Bantam Books, 1970), especially pp. 346–442.Google Scholar

⁹⁹ For related opinion poll data, see Asahi Shinburn, January 3, 1979, p. 7.

¹⁰⁰ See Beer, Lawrence W., ‘Education, Politics and Freedom of Expression in Japan: The Ienaga Textbook Review Cases,’ Law in Japan: An Annual 8 (1975): 67–90.Google Scholar

¹⁰¹ Ienaga v. Ministry of Education, Hanrei Jihō 604 (1970): 35 (Tokyo district court, July 17, 1970); and Ienaga v. Ministry of Education, Hanrei Jihō, special issue (October 15, 1974) and Jurisuto 569 (1974): 14 (Tokyo district court, July 16, 1974).

¹⁰² Ministry of Education v. lenaga, Hanrei Jihō 800 (1976): 19 (Tokyo high court, December 20, 1975).

¹⁰³ Private discussions with Japanese textbook authors at various times during the 1970s.

¹⁰⁴ Ministry of Education (ed.), Kuni no ayumi (October, 1946). For a recent expression of Ienaga's views, see Rekishi no naka no kenpō (Tokyo Daigaku Shuppankai, 1977), 2 vols.Google Scholar Ienaga sees the issues in broad constitutional and political terms, as part of efforts on behalf of Article 9 and against constitutional revision. Correspondence with the author, December 10, 1978.

¹⁰⁵ See Asahi Shinbun, January 1, 1979, pp. 1, 9–13. Survey results therein indicate middle-class preoccupation, not with large political questions, especially those of the past, but with work, inflation, children's education, and other immediate problems.

¹⁰⁶ See sources cited supra, n. 30.

¹⁰⁷ Beer and Weeramantry, ‘Human Rights in Japan’.

¹⁰⁸ Tōkei Nenkan (Ōkurashō Insatsukyoku, 1977), p. 26.Google Scholar

¹⁰⁹ Discussions with Onizuka Kentarō (Head, Civil Liberties Bureau), Nakadaira Kenkichi (attorney), Sasahara Keisuke (attorney), and Andō Isamu (Head, Asian Relations Center, Sophia University, Tokyo), in 1978 and 1979.

¹¹⁰ Japan came under some international pressure in 1978 and 1979 to allow some refugees to reside in Japan. However, as of July 1979, only 12 Southeast Asian refugees had been given visas for a year or so of residence. Of wider interest in Japan with respect to rights of foreigners in Japan was the Case, McLean, McLean v. Japan, Hanrei Jihō 903 (12 1, 1978): 3–20Google Scholar (Sup. Ct., Grand Bench, October 4, 1978). The Supreme Court denied McLean, a teacher active in peaceful and legal activities opposing the American involvement in Vietnam in 1969–1970, the renewal of his visa, saying that while foreign residents in Japan have the same freedom of expression under the Constitution as Japanese citizens, the Justice Ministry has discretionary authority to take into account whatever factors it thinks appropriate, including legal political activities, when determining whether or not to renew a visa. See Okazaki, Katsuhiko, ‘Foreign Nationals in Japan and the Human Rights Question,’ The Japan Times, 12 17, 1978;Google ScholarKokusaikajidai no hōritsu mondai, Jurisuto 681 (01 1, 1979), especially 13–26, 66–70.Google Scholar

¹¹¹ Sources cited supra, n. 109; Asahi Shinbun, January 21, 1979; Lebra, Joyce C. et al. (eds), Women in Changing Japan (Boulder: Westview Press, 1976); see n. 114, infra.Google Scholar

¹¹² The LDP rules provide that one electoral point is assigned to a prefectural party chapter for every 1,000 party members. The two national party candidates with the most votes in each prefecture divide the points in proportion to the number of votes each receives in the ‘primary’. No other candidates are allotted electoral points. The voting for the four candidates in the 1978 primary election was as follows: Ohira Masayoshi 550,891 (748 points); Fukuda Takeo, 472,503 (638); Nakasone Yasuhiro, 197,957 (93); Komoto Toshio, 88,917 (46). Asahi Shiabun, morning and evening edns, November 27, 28, and December 8, 1978. After the first round in a primary with more than two candidates in which no one has received a majority of the points, the top two vote-getters compete in a run-off election. In 1978, Fukuda withdrew his candidacy before the run-off. See also Shimizu, Minoru, ‘LDP Reform Movement Retrogresses,’ The Japan Times, 05 24, 1979.Google Scholar

¹¹³ Kuroka v. Chiba Prefecture Election Commission, 30 Minshū 223 (Sup. Ct., Grand Bench, April 14, 1976). See ‘Recent Developments,’ Law in Japan: An Annual 9 (1976): 151–2.Google Scholar

¹¹⁴ Constitution of Japan:

‘Article 14. All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.…’

‘Article 15. The people have the inalienable right to choose their public officials and to dismiss them.

‘2. All public officials are servants of the whole community and not of any group thereof.

‘3. Universal adult suffrage is guaranteed with regard to the election of public officials.

‘4. In all elections, secrecy of the ballot shall not be violated. A voter shall not be answerable, publicly or privately for the choice he has made.’

‘Article 44. The qualifications of members of both Houses and their electors shall be fixed by law. However, there shall be no discrimination because ofrace, creed, sex, social status, family origin, education, property or income.’ Itoh, and Beer, , Constitutional Case Law of Japan, pp. 258–9, 261.Google Scholar

¹¹⁵ Law 63 of 1975 added twenty seats to the House of Representatives, and created new election districts in Tokyo, Chiba, Saitama, and Kanagawa, areas severely afflicted with malapportionment.

¹¹⁶ Hanrei Jihō 902 (11 21, 1978): 24–34 (Tokyo high court, September 11, 1978).Google Scholar

¹¹⁷ Koshiyama v. Election Commission, Hanrei Jihō 902 (November 21, 1978): 34–51 (Tokyo high court, September 13, 1978).

¹¹⁸ Asahi Shinbun, September 7, 12, 13, 14, 17, and October 30, 1978.

¹¹⁹ Asahi Shinbun, September 27, 1978.

¹²⁰ Sources cited supra, n. 118.

¹²¹ Tokyo district court, November 13, 1979; Asahi Shinbun, November 13 (evening edn) and 14, 1979; The Japan Times, November 16, 1979. On the face of it, the judge was merely stating a fact and quoting the constitution, but the fact that it was made into an incident is another example of the supersensitivity, among many opposition politicians and opinion purveyors, of the issue of the Emperor.

¹²² Matsuyama, Yukio, ‘What Has Been Changing in Japanese Politics and What Not?,’ unpublished speech, Trilateral Commission, Bonn, West Germany, October 23, 1977, pp. 9–10.Google Scholar