Professor, Chuo Law School, Chuo University
Area of Specialization: Criminal jurisprudence
Criminal law refers to law related to crime and punishment. Criminal law uses (the warning and imposition of) punishment in an attempt to prevent future crime and maintain social order. Criminal jurisprudence, the academic discipline of researching criminal law, actually is extremely appealing to study; indeed, it may be more appealing than any other academic discipline. Its appeal lies in how it is an interdisciplinary science that is closely related to the humanities, natural sciences and other fields which involve research on human beings, as well as social sciences and other fields that involve social research, all encompassed in legal studies. It is impossible to consider the various issues of criminal jurisprudence without first engaging in somewhat intensive study of philosophy, ethics, literature, history, psychology, medicine, economics, sociology, and a variety of other fields. Academic understanding and experience regarding human beings and society are essential for criminal jurisprudence. Conversely, criminal jurisprudence enables one to acquire such understanding and experience and to see hidden aspects of human beings and society which are normally out of sight.
It is said that where there is society, there is law. Criminal law is the oldest form of law. However, the form of criminal law is not eternally unchanging; rather, it changes together with shifts in society and the environment of each era. More than 30 years have passed since I began working as a university faculty member, and during that time Japanese criminal law has undergone various changes. To give a simple summary of the greatest change, punishment now tends to be more actively imposed than previously. This change has been made in order to protect victims and the safety of civic life. This can be called punishment activism. It consists of several different aspects. In this article, I will focus on the trend towards carrying out more severe punishment (harsher punishment) to deal with crime.
When looking at a single example, it is clear that the punishments sentenced by courts on defendants found guilty in trial are gradually becoming more severe. In 1956, the year of my birth, courts of first instance (district courts) sentenced only about 6% of all defendants found guilty of murder (including attempted murder) to severe punishment exceeding 10 years of imprisonment with work. In 1987, about 30 years later, that number had risen to 15% of all defendants. In 2015, about another 30 years later, the number reached 35%. Furthermore, the imposition of more severe punishment is not based on an actual increase in the number of crimes or the brutality of crimes; actually, it is completely unrelated.
As a scholar of criminal law, I am concerned about worrisome elements in the factors causing an increase in the severity of punishment. When left unaddressed, such elements may cause Japanese criminal law to take an undesirable path. Now, what exactly are the worrisome elements? Expressed in language, these elements can be described as the spread of irrationalism and anti-intellectualism in criminal law. In other words, I am concerned that the trend toward more severe punishment is being caused by concepts which destroy the process of rational thinking on crime and punishment.
In Japanese society after World War Two, criminal etiology was widely discussed from the 1970s to the 1980s. The overwhelmingly prevalent theme in those discussions was a type of social theory which viewed crime as the result of the social environment. This line of thought postulates that individual behavior is decisively restricted by social conditions and that social problems are manifested as crime. This theory was shared by many criminal law scholars at the time. Concepts which were found appealing and were subject to little dispute at that time were that society should take joint liability for the crime committed and that the pursuit of criminal liability placed a strong spotlight on an individual and further plunged the surrounding masses into darkness. Criminal law assumed the compatibility of the individual being judged and the individual passing judgment; that is, it assumed that all people had potentially the same fate as a criminal depending on the environment in which they were placed. It was thought that society was responsible for criminals to the extent that negative social conditions were related to the crime committed.
However, today, the very theory of attempting to explain crime by linking social conditions and factors has lost its persuasiveness. Criminal etiology has declined and does not possess its former influence. This is a most alarming situation. If there is a weakening in the concept of exploring social factors in human behavior, then there will also be a loss of persuasiveness in the concept of clarifying the causes of human behavior and influencing those causes in order to decrease future crime. Instead, we will be dominated by the concept of imposing increasingly severe punishment in reaction to crime, all in an attempt to assuage the feelings of victims and the general public.
Is it truly acceptable to simply impose punishment based on feelings without concern for the effect of that punishment? Should the imposition of certain punishments for crimes truly be decided by feelings at that time? I believe that the job of imposing punishment is fundamentally similar to the financial policy of the Bank of Japan. The decision of whether or not to impose punishment and the degree of that punishment is made in the aim of preventing future crime by controlling the decision-making and behavior of people by means of punishment (the warning and imposition of distress). Within this process, it is essential to carefully weigh the merits and demerits (in other words, calculate the cost-effectiveness) of imposing punishment, in order to arrive at a decision.
A long time has passed since it was first said that criminal law was entering an era of change. Indeed, criminal law must change in response to shifts in society and the environment of the era. However, there are some ideas which must be protected even amidst changes in society and the environment of the era. More than ever before, it is now necessary to determine what must be changed and what must be protected in criminal law.