Speaking from experience, should you dare ask FCCJ Associate member Kunio Hamada how Japan’s rule of law differs from that in the West, I recommend you bring along a bento or two, waribashi and a box of ocha teabags, for you will be in for a lengthy dissertation on the Meiji era and post-World War II politics. Eventually, though, hunger or the passage of time will force him to conclude, as he does for me, by suggesting that Japan is a democracy that is as much ruled by law for the convenience of the rulers (government and bureaucrats) as it is a country governed by rule of law. (Non-lawyers, please note the importance of prepositions.)

But then Hamada’s bio explains all. He’s been a partner in two law firms, obtained a Master of Laws degree from Harvard University and served as a justice on Japan’s Supreme Court. Even as his 74th birthday and birth of a third grandchild approaches, this elegant, well-spoken internationalist continues to work as a counselor to colleagues at the Mori Hamada & Matsumoto law firm located five minutes from the FCCJ, though with admirable self-deprecation, he suggests that they keep him on “as a sort of ornament” due to his illustrious resume.

Despite the lateness of the day and gnawing hunger, I ask him to expound more on the different approaches to law. He notes Japan has avoided the rule of law turning into “ruled by lawyers,” as it has in the United States and Germany, and that Japan takes a flexible approach to interpreting its statutes (some promulgated generations ago) in the context of 21st-century life, whereas in Britain the letter of the law is often literally followed, even when it may be farcical to do so. Hence, “The law is an ass,” as a Dickens character succinctly summed it up.

So, is he claiming Japan’s flexible approach to applying the law is without sin?

Not at all. For as he said in a keynote speech delivered at a World Justice Project meeting in Singapore not long ago, “The downside of such a system is a prevalence of old-boy networks among and between bureaucrats and business leaders and misuse of their privileges and power.”

This leads me to conclude we are left with a Rashomon-like choice of deciding which of three flawed schemes produce the least harm: a tort lawyer’s paradise where you can sue a company for a couple of million bucks because you cleverly spilled its hot coffee on yourself; live with laws made for donkeys; or accept systemic corruption and good old amakudari and such.

Hamada is more optimistic, for reform is under way in Japan that aims to streamline court procedures, increase the number of lawyers and allow the general public to participate in the system by becoming lay judges. It’s a more “user-friendly approach,” he says. Well, unless you happen to be whiling away your days on death row.

The lay-judge system calls six members of the public to court duty who, together with three professional judges, will deliberate cases and make decisions on the innocence or guilt of the accused. They also play a part in determining the sentencing, which “makes this system unique,” according to Hamada.

To date, the cases have all been relatively straightforward, but this year the lay judges will take on more complicated trials, some involving murder, which would mean pronouncing sentences of life imprisonment or the death penalty if the accused are found guilty.

”So the real test is coming,” says Hamada. “In my view, based on the experience of the lay judges since May last year, the system (will) work. And there are signs that it’s having a good effect on the criminal-justice system. It also promotes the concept of a democratic society.”

Fine. But the hour is late and there are more important things to ask him than matters of life, death, the law and democracy. For instance, what does he like and dislike about the FCCJ?

In true legalistic fashion he answers, “Well, the FCCJ is quite an interesting association.”

When I rule this as inadmissible, he qualifies it by saying that given the Club’s mix of media people, other professional and non-professional members and both Japanese and foreigners, “It forms a unique international society.”

I want to rest the Club’s case right there, but then he overrules me by insisting on the whole truth and nothing but the truth, sworn by Japan’s 8 million gods. “It’s a nice place to go for a snack or dinner after a concert or some entertainment, because Japanese nightlife tends to end around 9 o’clock, and there are no places to eat except at the FCCJ.” ❶