Daniel H. Foote, Policymaking by the Japanese Judiciary in the Criminal Justice Field, 72 Hōshakaigaku 6 (2010), https://digitalcommons.law.uw.edu/faculty-articles/999
When one speaks of policymaking by the judiciary, the image that often comes to tnind is the U.S. judiciary, especially the Supreme Court of the United States. That reaction is understandable. Examples abound of policymaking by courts in the United States; and a seemingly never-ending stream of books and articles discuss, analyze, and, depending on the authors'point of view, praise or decry "policymaking" or "judicial activism" by U.S. courts. The field of criminal justice frequently is offered as a prominent example of judicial policymaking in the United States. Expansion in due process protections and other rights for criminal suspects and defendants often is attributed to the Warren Court (that is, the U.S. Supreme Court under Chief Justice Earl Warren, who served from 1953 to 1969). Among the many decisions of the Warren Court related to criminal justice, one decision in particular typically is offered as an example of that Court's "judicial activism": Miranda v. Arizona, which announced concrete, detailed standards regarding the right to silence.
In contrast to courts in the United States, the Japanese judiciary frequently is regarded as a paragon of judicial restraint. Japanese judges, it is widely thought, defer to policymalking by the legislature and bureaucracy; they are loath to make policy themselves. This characterization, I would submit, misses a good deal of conduct by the Japanese judiciary. In matters of private ordering, at least, the Japanese judiciary frequently has played an important role in creating norms. In numerous cases, the courts have consciously and deliberately shaped the legal standards, often in highly creative ways, with policy considerations in mind. In swn, the Japanese judiciary engages in policymaking. (A caveat: This essay deals primarily with policymaking through judicial decisions. The Supreme Court of Japan naturally engages in a wide range of policymaking in its capacity as the body vested with rulmaking authority with respect to the administration of judicial affairs.)
In his classic work Law and Social Change in Postwar Japan, Frank Upham provided detailed case studies of two such examples: judicial creation of policy in the fields of tl1e envirorunent and equal employment opportunity (Upham 1987). In a recent book I discussed these and several other examples of policymaking by the Japanese courts (Foote 2006). On occasion the policymaking would be regarded as unusually active even by U.S. standards. As reflected by the handling of pollution, traffic accident disputes, and insolvency matters, for example, the policymaking activities of the Japanese courts are not limited to shaping norms through the issuance of judgments in individual cases; at times the Japanese judiciary as an institution has taken the lead in creating policy for major bodies of cases, utilizing standard-setting and coordination activities one more nonnally would associate with an administrative agency.
What of the criminal justice arena? Have Japanese courts played a major role in shaping criminal justice policy, as well? As I will discuss in more detail below, the Shiratori case of 1976 stands as a prominent example of top-down shaping of norms in the criminal justice field by a single Supreme Court decision. One can offer a few other examples of judicial decisions that have expanded protections for suspects and defendants, as well. On the whole, however, as compared with the situation in the United States, the Japanese judiciary has followed a coriservative approach in the criminal justice arena. From that standpoint, one might point to criminal justice as a classic example of judicial restraint, with little involvement by the Japanese judiciary in policymaking.
This view, I will argue, is mistaken. Just as surely as the Warren Court helped to shape criminal justice policy in the United States, so too the Japanese judiciary has helped to shape criminal justice policy in Japan. But it has done so based on a very different conception of the criminal justice system from that in the United States, a conception that is heavily influenced by a stance of deference to the prosecutors. After discussing the basis for this conclusion, I will offer some thoughts on the underlying reason for the different postures of the U.S. and Japanese courts, and close by discussing recent developments suggesting a modest shift in the stance of the Japanese judiciary.