The Style and Role of Judgments by Japanese Courts

How They are Written and Read

Abstract

The style of court decisions in Japan reflects the unique and hybrid nature of Japanese law. Institutionally, the name of the judge drafting a decision is not disclosed under the career-judge system of the civil law tradition. Still, unlike in a typical civil law jurisdiction, judges treat precedents as binding, with the result that precedents are considered as a de facto source of law. Whereas the doctrine of stare decisis does not exist as an inherent element of the Japanese legal system, the recognition of case law in such a manner is based on the belief of judges in the equal treatment of people under the law.

The style of court decisions is quite well-established. This is because of the efforts that Japanese judges have made to improve their drafting skills since early twentieth century. Such skills are now incorporated into the training system at the Legal Training and Research Institute and, to some extent, in the education at law schools as well. The reasoning style features flexibility in the interpretation of legal texts, resulting in the responsiveness of the judiciary to newly emerging voices in society, but it also emphasizes the formal framework of law, leading to the conservative approach of the Japanese judiciary.

Both the establishment of the drafting style and the coexistence of flexibility and formality in reasoning have their historical origin in the Taishō era (1912-1926). It was a time of rapid and radical changes in Japanese society. The Great Court of Judicature, intending to be responsive to such changes, set up the Case Review Committee under the leadership of its President Kiichiro Hiranuma, and it mandated that legal interpretation should be flexible and court decisions unified. Academics were, however, critical of the new initiatives, finding there to be an undisrable risk in having the judiciary (alone) identify what constitutes “case law”. It was in this context that the academics emphasized the significance of their studies of court decisions as a means to ensure plurality in identifying case law. Sometime later, such academic approaches produced the unique teaching material of “100 cases” (Hanrei 100-sen).