3. Distinctive Features of Legal Understanding of Japanese. "Living Law"

Whereas Latin American law is distinctive for dualism in the sense of combining European and American models in the absence of any significant influences of traditional norms and institutions of the past (imprinted during Spanish and Portuguese dominion), a dualism on another plane is applicable to the legal system of Japan; to wit, the combining and parallel operation of traditional norms formed in the past and received at the end of the nineteenth century from the Romano- Germanic legal models.

The earliest Japanese laws which have come down to us are reminiscent of the laws of the Chinese Tang dynasty. The very conception of law in Japan was formed under Chinese influence. The criminal law was the cornerstone. The severity of the system led to law being regarded negatively. This tradition lives in the Japanese consciousness, and the word "law" often is associated with prison - a symbol of harshness.

Norms of community life of the Japanese were worked out under the influence of the religious concepts of Shintoism, Buddhism, and Confucianism. These traditional norms of behaviour in Japanese society are called "hiri". Hiri is understood by Japanese specialists variously. Sometimes hiri is treated as a debt of honour based on a strictly prescribed regulation of human relations requiring similar acts under similar circumstances. This feeling of debt to a certain person or group and the failure to fulfil such a moral obligation entails dissatisfaction or disappointment of the said person or group.

The existence of these moral rules undoubtedly is reflected in the mechanism of the realisation of law in Japanese society. In the sphere of contractual relations a contract usually determines merely major important moments of the relations of the parties, with all the specific problems which may arise during its operation or at the stage of performance being decided by proceeding from hiri, that is, rules of relations between persons who know one another. The Japanese civilists Sakai Vagatsuma and Toru Aridzumi, in eliciting the concept of a transaction, stressing that the "anticipated result is achieved to a certain extent thanks to the operation not of legal norms, but custom and morality". And only if with the assistance of these means the participant of a transaction does not receive the anticipated result is it possible to seek the assistance of a judicial decision. The operation of hiri is limited to a group of persons who have constant communion between themselves and does not extend to all others.

According to tradition, a judicial examination does not conform to the natural state of things. Recourse to a court shows that, in the opinion of the plaintiff, his opponent is an abnormal person with whom it is impossible to agree amicably. Conciliation should precede judicial examination.

It seems to the Japanese that a judicial examination docs not correspond at all to the natural state of things. The logical principle of contradiction under which one party must obligatorily lose a case if the other wins does not satisfy the Japanese, who always seek a more flexible outcome. A litigating Japanese prefers conciliation to a judicial examination. Even the majority of disputes considered in a court are all the same settled by conciliation.

The Japanese prefer to preserve a measured social life with the assistance of rules which satisfy their character to a greater degree than legal norms. For this purpose all social relations are similar to family relations and must be regulated by rules relating to a family. But in view of the infinite diversity of social relations these rules, although permeated by one spirit, also are changed endlessly. Such rules are not legislative since they do not contain the basic elements of law. Compliance with these rules always gives rise to an aspiration to satisfy the feelings of a rival. Of course, the fulfilment itself of an act is one of the constituent elements of the particular rule, but this is insufficient. The internal mood of the performer has significance of the first priority.

Confucianism undoubtedly influenced this traditional system of rules. Hiri can not be regarded as legal, the more so legislatively sanctioned norms. Nonetheless, hiri exerts material influence on legal relations. We offer examples. A creditor unequivocally requiring from his debtor all is due to him under a law seems, through hiri, inhumane. A creditor deserves respect who delicately elicits the position of the debtor and considers his emotions. A debtor, touched by such behaviour, does all within his power to justify such good will. If a contract is breached, the parties before launching a legal mechanism into operation must first attempt "friendly ways". It is not accidental that one encounters in contracts a stipulation that in the event of a dispute between the parties concerning rights and duties under the contract they will honourably discuss together the questions in dispute.

In the view of the majority of Japanese writers, although hiri has retained influence in the sphere of law, nonetheless it can not be considered to be significant, is gradually falling away and can not be compared with how it was at the beginning of the twentieth century. Evidently hiri is more influential in family law, questions of which are settled basically with the assistance of domestic considerations, without recourse to a court. Divorces by mutual consent are authorised by Japanese law and comprise almost 90% of the total number of divorces. Disputes concerning the division of property, payment of alimony, or establishment of trusteeship over children likewise are resolved by chosen mediators or friends of the spouses. Disputes between neighbours or parties to a contract of lease usually are settled by an amicable agreement.

There are inaccuracies in understanding the legal consciousness of Japanese by individual writers, especially foreigners. Rene David asserted that law does not have importance in the daily life of the Japanese, but rather the traditional complex of moral and ethical norms of hiri. The Russian writers Tille and Ovchinnikov adhere to that view.

To be sure, in contractual relations in Japan between private persons or organisations, for example, the norms of hiri have a certain place; however, those norms do not cover the full range of contractual relations. Tille ascribed the system of hiring of a work force for life, practised in Japan, to the operation of norms of hiri. That is not so, however. The system was developed in the postwar period, especially the 1960s, during an era of high rates of economic growth in Japan and was linked principally with private companies who effectuated the professional training of the work force at their own expense. They undertook various measures to consolidate workers and employees in their own enterprises. Thus, the fact that workers labour in one enterprise, as a rule, from the end of secondary school until retirement on pension is to be explained not by they or their employers being bound by norms of hiri, but entirely by prosaic material factors.

The aspiration of citizens to resolve conflict situations while bypassing judicial proceedings is said to be a distinctive feature of the legal consciousness or behaviour of the Japanese. In fact here we have concern with the operation of certain norms of hiri, but the main reason is the complexity of a judicial proceeding, the dragged-out nature and great expense of the process. Nonetheless, statistics show an increase in the number of recourses by Japanese citizens to judicial agencies, in particular with suits connected with violations of the basic rights of man (right to existence, freedom of speech, right to association, and others).

Modern Japanese law together with judicial procedures gives to litigants the possibility to select a special conciliation procedure consolidated in the Code of Civil Procedure (Article 136). According to that procedure, a competent court creates upon the application of one of the parties a special arbitral committee composed of two or more nonspecialists under the chairmanship of a professional judge appointed in the majority of instances. This committee summons the litigating parties and hears them, then attempts to dispose them towards an amicable decision. In the event of the failure of such attempt the suit may be filed in a judicial procedure. In practice the conciliation procedures have great significance, the more so since the judges often use the possibility to suspend consideration of a case and transfer it to the arbitral committee. The number of renunciations of suits exceeds more than 50% of the total number of cases.

Of course, one should not overestimate the inclination of the Japanese for amicable settlements. It should be noted that in Japan the number of collective judicial proceedings has significantly risen, especially concerning defence of the environment and responsibility for the quality of products produced. Thousands of plaintiffs are participants in these proceedings.

Speaking of the future of Japanese law, David justly noted that "even if Japanese institutions will be fully westernised and legal technique modernised, the application of law all the same will feel in the cultural sphere of this country the vitality and reality of traditional principles".

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