Mr West presents a judiciary that is sometimes out of step with the “sense of society” on which it regularly bases its rulings. In divorce proceedings judges make it a virtue for wives to forgive adultery or overlook domestic violence.The judge who wrote that last opinion might be interested in some alternative arguments for his position. What's the Japanese policy on use of international law in deciding cases?
Judges may also go far beyond their brief to comment on social mores, In one instance, in 1991, a judge decided that modern appliances are partly responsible for failed marriages because they “give women time to contemplate”. In that particular case the judge rejected a wife’s request for divorce after years of physical abuse, living separately and even a suicide attempt because her husband did not cheat or gamble, and looked so forlorn in court. “They should search together for the bluebird they were unable to find before,” the judge ruled. The reference to a “bluebird” is as jarring in Japanese as it is in English.
Judges use a multi-part test, that does not include love, to approve a contested divorce. Yet love plays a part in cases where it is perhaps less relevant. For instance, sexual relations with a minor is sometimes excused if the court rules there is love. Judges set out to decide whether the defendant is “earnest”, which means either in love or contemplating marriage.
In the case of rape, Japanese courts consider factors that American and European ones would not. Being drunk is a valid defence. One 1992 ruling suspended the sentences of two men out of compassion for what they “must have faced when the victim told them no”.
Saturday, June 11, 2011
The Economist reviews a new book by a Michigan law professor on the Japanese judiciary's treatment of love and sex.
Posted by Amber at 2:53 PM