"Proper" comparative research on aspects of foreign legal systems is difficult. It requires interdisciplinary work, analysing the subject matter in the context of the legal system as a whole and in its historical, and more importantly, political, cultural and economic context. In terms of the actual issue being examined, it should encompass four levels: the law on the books, case law interpreting that law, the actual legal practice in the institution responsible for the issue under analysis, and the behavior of all participants touched by or involved with the issue. In short, comparative research must, to be valuable, examine "law in action" rather than "law on
the books." Not surprisingly, comparative scholarship frequently fails to overcome these formidable barriers, and as a consequence, comparative scholars are often not taken seriously. This is regrettable, because comparative research can be a valuable tool to help us understand our own legal system better and to facilitate law reform.

The author of this book states his purpose as drawing "an empirical sketch of Japanese prosecutors, the contexts in which they work, and the powers they individually and collectively exercise" (p. 4). He achieves much more than this aim. Even though he focuses mostly on Japan, his comparative remarks, chiefly with regard to the criminal justice system of the United States, throw an illuminating light on the latter system and justify his remark that despite significant problems in the Japanese criminal justice system "this comparison of prosecution in Japan and the United States suggests that Americans who care about the quality of criminal justice in their own country have cause for discomfort when they look in the Japanese mirror" (p. 280).

The book goes a long way towards the ideal of comparative sociolegal scholarship. It examines Japan's criminal justice system, focusing on the prosecution of crime, by analysing theory, context, and empirical evidence, gained during almost three years of field work in Japan, using a great variety of methods: participant observation, in depth unstructured interviewing of prosecutors, judges, defense lawyers, police and prison officials, and administration of a questionnaire consisting of 153 questions to prosecutors, from which 235 valid responses were received. For comparison the author not only refers to theory and context regarding the American criminal justice system, but also relies on Rayment's (1999) survey of 57 prosecutors in Seattle, which used the English version of the questionnaire
the author administered in Japan. Few legal scholars have the time, the motivation, and/or the necessary skills basis for such extensive empirical research, and so it is not surprising that the book's author is a sociologist. His background as a sociological rather than legal scholar may

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also explain his occasional scorn for research on the Japanese procuracy conducted by American doyens of legal scholarship on Japan, such as John Owen Haley and Daniel Foote.

The author posits the thesis that compared to the United States, Japan is "paradise for a prosecutor" (p. 21). Referring to statistics, field observation and interviews, he demonstrates that prosecutors in Japan are confronted by a far lower crime rate and carry much lighter caseloads than their American counterparts (pp. 22-23, 24-27). The implications of this are clear: Japan's prosecutors can devote more time and attention to each individual case, which facilitates the ascertainment of facts about both offense and offender (p. 28). In addition Japanese prosecutors as unelected civil servants are more insulated from political pressures than their elected
American colleagues who as a result of higher crime rates are more exposed to law and order campaigns (pp. 29-31). This in turn means that Japanese prosecutors do not have to respond to public demands for retribution, deterrence and protection of society, but can also legitimately pursue other purposes of criminal prosecution, such as reform of the offender, reconciliation with and restitution to the victim (p. 32). These contextual factors find expression in prosecutors' work objectives and in decisions whether to suspend prosecution. Prosecutors in both countries share a strong commitment to "discovering the truth" about a case, though this is more pronounced in Japan, where prosecutors are more involved in the investigation. Purposes of criminal prosecution such as invoking remorse in offenders and rehabilitation and reintegration of the offender are regarded as important or very important by 92.7 percent and 91.5 percent respectively of Japanese prosecutors, but only by 8.8 percent and 28.1 percent respectively of their American colleagues. In contrast, the cardinal work objective of American prosecutors is protecting the public, closely followed by giving offenders the punishment they deserve (table 3.1, p. 98). The most important factors influencing suspension of prosecution decisions in Japan are "damage done by the offense," "likelihood of reoffending," "whether the suspect repents," "suspect's motive," "whether suspect compensates victim," "victim's feelings about punishment," and "prior record" (table 3.2, p. 111). The significant difference to America is that prosecutors there do not factor in "whether the suspect repents", because they distrust displays of remorse, and are less likely to take into account both the victim's feelings and whether the suspect has compensated the victim (pp. 115-116).

Since the Japanese system strongly encourages and facilitates rehabilitation and the victim's restoration and reparation, it comes close to the ideal of restorative justice (p. 211), there is however one area of crime, where it falls short, as the author rightly points out, and that is sexual molestation, domestic violence and sexual harassment, where, unless there is public pressure for prosecution in high profile cases, prosecutors tend to press the victims to accept compensation in return for dropping criminal prosecution (pp. 207, 209), reflecting underlying social norms and continuing reality in Japan that women are not treated equally to men.

Organizational features of prosecution also replicate Japanese culture and bureaucracy: Japan's frontline prosecutors operate in a hierarchical structure with little autonomy since most decisions are made collectively under strong control exercised by superiors (p. 140). This organizational environment facilitates not

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only decision-making that takes account of individual suspects' circumstances and needs, but also consistency in the treatment of similar cases (pp. 158-59), in other words the harmonization of two imperatives of justice, which most American prosecutors regard as almost impossible to achieve (p. 151). Importantly, hierarchical control also ensures that prosecutors charge only in those cases where conviction is highly probable (p. 226). Interviews with judges and prosecutors and responses to the survey demonstrate that the real reason for the relatively low acquittal rate in Japan lies in this policy rather than in judges favoring prosecutors' views, as most observers have suggested (pp. 218-220). It is here that the value of the author's empirical research is particularly evident.

Defense lawyering is generally weak in Japan, because the defense bar is small, defense work is poorly paid, which does not facilitate specialisation in criminal defense work, and during the preindictment stage defense attorneys' powers are severely curtailed (pp. 74, 79-80). Therefore prosecutors don't have to overcharge, enabling them to "choose the charge that best expresses their perceptions of desert, correctability, and convictability" (p. 231). Accordingly, "at least in the crucially important charge decision, Japan's high conviction rates reflect less an "iron hand" of authoritarianism than a system more protective of suspects' rights than many
foreign systems with lower conviction rates" (p. 239). There are drawbacks to not charging some cases: victims do not get their day in court, deterrence is reduced, and the educative function of trials is lessened. In addition, those cases that are charged almost always lead to conviction, further suppressing the motivation for lawyers to do defense work (pp. 240-41).

The darkest chapter of Japan's criminal justice system is confessions, the "cornerstone" of prosecution in Japan in the search for truth (p. 243). The Code of Criminal Procedure allows law enforcement authorities up to twenty three days to detain and interrogate a suspect before they must charge or release the suspect and the right to defense counsel at public expense can be exercised only after formal arrest (pp. 36, 38).

Methods prosecutors use to gain confessions during these lengthy periods include promises that charges will be dropped, reduced, or that mild punishment will be sought in return for confession (pp. 246-47), fabrication or selective presentation of evidence in dossiers, possible since suspects' statements do not have to be recorded verbatim (pp. 248-50), and intimidation, openly admitted to in interviews, and brutality (p. 254). One prosecutor told the author "to be sensitive to different cultural sensibilities about violence. 'To us Japanese, hitting in the head is not serious'" (p. 255). Nevertheless, the author urges, "criticizing the system's reliance on confessions without considering the aims and attainments that confessions serve is myopic, unfair and inapt" (p. 268).

The author suggests three reforms to improve the Japanese criminal justice system: relaxing the charging policy, videotaping interrogations, and disclosing more evidence to the defense before trial (p. 271). As he acknowledges, his first proposal is the least compelling, since it would weaken the benefits of precise justice: considering individual needs and circumstances, treating similar cases alike, promoting rehabilitation and restoration. His other two suggestions are useful. Videotaping interrogations would place interrogations under external control to

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ensure that confessions are voluntary, and access to the prosecutor's dossier prior to trial would significantly enhance the ability of defense lawyers to check and challenge prosecutorial evidence. If the darkest chapter of Japan's criminal justice system could be lightened by these measures, one could indeed agree with the author's conclusion that "the Japanese way of justice is uncommonly just" (p. 280).

Despite the major achievements of the author, the book omits to engage with a few key contexts. Surprisingly in view of the author's awareness that culture matters, evident in his discussion of prosecutor culture, the enormous literature on Japan's society and culture, and the fact that the author spent so many months in Japan, the author fails to engage in depth with the underlying Japanese culture in general. Future empirical research may usefully encompass surveying and interviewing offenders and victims to gain an insight into their perspectives on the operation of the Japanese criminal justice system. More significantly, the book does not attend fully to the more legal levels of comparative research. The author's scant attention to the details of the Japanese Code of Criminal Procedure and the Supreme Court's case law on issues relevant to his discussion is perhaps not surprising in light of his background as a sociologist. Nevertheless, it is regrettable, especially since a discussion of the relevant case law interpreting the Code in ways enhancing already strong police and prosecutor powers would have made his argument even more powerful. There is also little consideration of the context of the Japanese legal system as a whole: the relevance, if any, of constitutionally protected individual rights such as no apprehension without warrant, no detention without being informed of the charges, the right to assistance of competent counsel at all times, and the
inadmissibility of confessions made under compulsion, torture or threat, or after prolonged arrest or detention; the independence of the judiciary; the record of the Supreme Court in human rights jurisprudence, etc.

Despite these problems, THE JAPANESE WAY OF JUSTICE: PROSECUTING CRIME IN JAPAN makes an outstanding contribution to both scholarship on the Japanese criminal justice system and comparative sociolegal research in general. The author communicates his thoughts so well that anyone generally interested in criminal prosecution will find it of interest. As someone who is both a legal comparatavist and a scholar on the Japanese legal system, I feel privileged to have had the opportunity to review this book.

REFERENCE:

Rayment, Lauren. 1999. "Prosecutor Objectives in the United States and Japan." Unpublished student paper, University of Washington School of Law.

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Copyright 2002 by the author, Annette Marfording.