THE JAPANESE MAFIA: YAKUZA, LAW AND THE STATE

Vol. 14 No. 4 (April 2004)

THE JAPANESE MAFIA: YAKUZA, LAW AND THE STATE, by Peter B. E. Hill. Oxford University Press, 2003. 336 pp. Ł25.00. $35.00. Cloth ISBN: 0-19-925752-3

Reviewed by Caryl Lynn Segal, Department of Criminology and Criminal Justice, University of Texas at Arlington. Email: csegal@uta.edu

This book’s title, THE JAPANESE MAFIA, conjures up visions of a unit similar to the Italian, Russian, and American organized crime groups, but the author demonstrates that Japan’s yakuza are quite different from these other organizations. Hill begins by providing his definition for mafias as being “a set of firms that provide extra-state protection to consumers in primarily, but not exclusively, the illegal market sector” (p.10).

This would not be the definition normally applied to the American mafia, for example. The difference stems to a large extent from aspects of the Japanese culture itself that are not duplicated in other nations. However, one similarity with the Italian mafia, and possibly also of the Russian mafia, is that the groups fill or have filled roles where the legal authority or responsible group is weakened for one reason or another.

A good example of Japanese culture’s creating an environment where illegal transactions can blossom is the role yakuza play in meetings of stock shareholders, which has no counterpart in Western society. Purchasing shares of stock in a publicly traded Japanese company gives the buyer a right to attend stockholder meetings, which is no different from United States’ practice. But there the resemblance ends. Sōkaiya (corporate blackmailers) extort money by threatening to reveal sensitive information about the financial status of the company or the private lives of management. Unlike practice in the United States, corporations in Japan do not issue annual financial reports and only stockholders get this information, thus making it a potentially valuable commodity.

Yakuza also demand payments by corporations for protection against extortion by other groups, as well as to prevent protestors from disrupting meetings. Unique to the Japanese culture is the expectation that stockholder’s meetings should last no longer than 30 minutes. If a meeting extends beyond a half-hour, the additional time is assumed to indicate the company is in trouble and the stock’s price will fall. Thus based on cost-benefit analysis, many companies believe that it is in the company’s best interest to pay the sums demanded.

Hill provides a vast amount of information regarding the interplay of laws, the Japanese constitution, and organized crime countermeasures. When U.S. federal or state sentences are overturned because of procedural violations, citizens and commentators alike often decry the “due process model.” The discovery that Bōtaihō (the Japanese Organized Crime Countermeasures) required a public hearing before a group could be labeled as bōryokudan (“violent group,” which is the official term for Japanese Organized Crime groups) is quite remarkable. At this proceeding, the group invariably attempts to put forth sufficient evidence to demonstrate that it is not a violent group.

Thus you have a situation whereby the Public Safety Commission first has to establish that a group is violent before other steps can be taken. Then the evidence is presented to the National Public Safety Commission, and notice has to be given to a representative of the bōryokudan of the finding, which is also published in an official publication. The finding is only effective for a three-year period.

Under American administrative law, we also require both notice of a hearing and the opportunity to be heard prior to an agency’s taking action, but the American agency has predetermined that an individual or group has violated the regulation as opposed to the Japanese requirement of the agency’s first having to prove that the person or group meets a definition that allows the agency to act against the group or person.

To reach the designation of bōryokudan, the Public Safety Commission must prove three criteria: 1) a member of the group used the group’s influence to gain financial advantage. Yakuza organizations have a reputation for violence, much like the American, Sicilian, and Russian mafia. Thus by establishing oneself as a yakuza member, the intended “client” or victim is less likely to refuse the service or goods. 2) It must be proven that a certain proportion of the group’s members have criminal records. The percentage of criminal membership is size-determined so that the larger the group, the smaller the percentage required. But only criminal records within the past ten years may be used. 3) Evidence must show that the individuals controlling the group have “an organization constructed on hierarchical lines” (p. 159).

It is important to understand that this is administrative law, rather than criminal law, and is specifically aimed at a single type of organized criminal activity with injunctions and fines for violation of prohibited acts. However violations of the injunctions can result in prosecutions. The legislature found that there were obstacles when it attempted to write criminal laws that specified these activities-i.e., exploitation of a group’s reputation to secure financial or other advantages. Wording the statute in such a manner that innocent activities, protected by the Japanese constitution, were not violated proved elusive. For example, unions rely on reputation when trying to bargain for contract adjustments. It was also believed that the right to freedom of assembly and association would be jeopardized, and laws aimed at these groups would thus be found to be unconstitutional.

One justification for writing the laws was the belief that, because it is the actions of members that are illegal-not membership itself-the statutes would be upheld in the courts. That view, however, did not prevail. In addition, the requirement concerning the percentage of those with criminal records was generally believed to violate the constitutional restriction against discrimination based on race, creed, sex, social status, or family origin. Some argued that one’s criminal past might qualify as a social status.

Laws in Japan regarding debt-collection provided yakuza with another opportunity for exploitation. Japanese law gives lawyers the exclusive authorization to collect debts. Under the process in place and with a relatively small number of lawyers, the procedural steps take an extremely long time to conclude. It is interesting to note that in 2003 the legal system was overhauled with the objective of streamlining the process and reducing the time. In addition, the Japanese are also currently taking steps that will significantly increase the number of students attending law school, which eventually will help to reduce the time associated with debt collection.

However, given the current extensive time and legal expenses the process entails, many creditors turn to the yakuza who can achieve much faster results, albeit at a higher price. The standard fee is 50 per cent of the debt, in addition to other expenses, which means that the yakuza receive the majority of recovered funds. In this informal system both the creditor and the yakuza have broken the law, so no legal redress is possible. But, again, it is often seen as worthwhile to collect one-third or one-quarter of a debt immediately, as opposed to a larger portion at some indeterminate date in the future.

Yakuza have historically been involved in both protection and gambling in Japan and continue to play an active role in both. Indeed, the numerous ways in which yakuza exploit legal gambling operations is quite remarkable. As anti-crime statutes appeared, the yakuza entered into a variety of illegal behavior, which was an unanticipated consequence of new law. A NEW YORK TIMES article in September, 2003-“Crime Rattles Japanese Calm, Attracting Politicians’ Notice”-reported that rising crime in Japan was primarily caused by foreign gangs and juveniles. One wonders whether the change is a result of Bōtaihō or other criminal law revisions aimed against yakuza.

Interestingly when the Bōtaihō was under consideration, one counter argument offered by yakuza was that they served as employers of last resort for violent, ill-educated, and otherwise unemployable Japanese young men and subjected them to a strict code of discipline and control. Thus they argued that they were actually performing a public service, providing valuable control functions within the Japanese underworld.

Hill extensively uses graphs and charts to help the reader understand the workings of these groups, and he provides a useful glossary at the beginning of the book. He details the use of amphetamines during World War II by the Japanese military and how the drugs remaining after the war became the basis of the Japanese mafia’s operation. He goes on to state that government looked the other way because amphetamines were a popular means of combating both fatigue and hunger that was rampant in the country at war’s end. Current media reports note that heroin and cocaine, among other drugs, involve foreign groups; the Japanese mafia, on the other hand, is still known to market amphetamines but appears not to be the major player in other drug areas. What role they do play is largely unknown.

I cannot recommend this book highly enough to any one with an interest in the interplay of culture, crime, and law. Reading about the unintended consequences resulting from criminal statutes aimed at the mafia, one recognizes the parallels in some United States “War on Drugs” legislation. Comparative study has its strength in allowing one to learn from the experiences of other nations - the good and the bad alike - in hopes of achieving better results.

REFERENCES:

Onishi, Norimitsu. 2003. “Crime Rattles Japanese Calm, Attracting Politicians’ Notice.” THE NEW YORK TIMES, Section A, p.1, Col.3 (September 6, 2003).

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