Any attempt to scale Japans mountain of rules is doomed

Posted: February 24, 2015 at 8:45 am

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In England of the distant past, the word doom was a legal term, referring to a judgment imposing a punishment. Some etymological sources suggest it has common roots with the Sanskrit dharma, a deeply complex word that can refer to customary social duties or divine law, depending upon the religious context.

When Buddhism was brought from India to Japan via China around 1,500 years ago, dharma was translated using the character (h), a word that now means law, but which served as a religious term for much longer. Around the same time Buddhism was being introduced from the Asian mainland, so were Confucian models of law and governance set forth in ritsury (, the ancient Chinese code). The ritsu () were the rules of crime and punishment. Ry (, a character that is now usually pronounced rei) were the rules of government, such as how courtiers had to dress while in mourning for a dead emperor.

The ritsury are long gone and today h is the generic term for law, though it is typically used in combination with ritsu to form hritsu (, statutes), which is a generic term meaning law, but one that also has a more specific meaning. It refers to the statutes passed by the kokkai (, the National Diet), which, under the Constitution, is the sole law-making organ of the state. In reality, however, a lot of laws are drafted not by Diet members but by bureaucrats who tend to delegate to themselves and their ministries the authority to fill in the details with regulations that dont go through the Diet.

The term hrei () is both more technical but also broader than hritsu, encompassing statutes passed by the Diet as well as the vast pantheon of secondary legislations. A related term is hki (), which can be used in a broader sense than hrei (including the rules of local government bodies, for example), but in the field of public law it refers to rules affecting the rights and duties of the people, which, in a democracy, should only be passed by the legislature.

According to the Ministry of Internal Affairs and Communications, as of Jan. 1, 2015, Japans national government had a total of 8,079 hrei. These can be listed in a hierarchy with the nations single kenp (, constitution) at the top, followed by 1,933 hritsu.

One of these statues is special, in that it is not called a hritsu; this is the kshitsu tenpan (, Imperial House Law), which sets forth the special rules governing the Imperial family and the now-sensitive subject of succession to the throne.

The kshitsu tenpan was once co-equal to the Constitution and could not be amended by the Diet, hence its different appellation. Article 2 of the current Constitution clearly subverts the Imperial House Law to the Diets legislative power, though the difference in terminology is only apparent in the Japanese version.

Below hritsu there are some 2,079 seirei (, Cabinet orders). Under the constitution the naikaku (, Cabinet) acting as a whole may issue such orders to implement the Constitution or statutes, but may only provide for criminal penalties if authorized by statute. Although the Emperor no longer has the power to issue them, a small number (75) of chokurei (, old Imperial decrees) still remain in force, including one from 1895 declaring central standard time to be the nations official time, (though this is no longer really the case since nations now keep time based on atomic clocks).

Next come 3,648 furei () and shrei (), regulations taking the form of orders issued by the heads of individual sh (, ministries) represented in the Cabinet, or by the prime minister representing the naikakufu (, Cabinet office). There are also a small number of kakurei (, orders issued by the prime minister under the prewar constitutional system), including one issued on July 30, 1912 the day Emperor Meiji died directing how flags should be flown during periods of national mourning.

Finally there are 335 sets of kisoku (), which are rules that are issued by a national government institution that is not headed by a minister. These may include the regulations of parts of the government not represented in the Cabinet, such as the jinjiin (, National Personnel Agency), or detailed regulations created by specific bureaus or agencies of a particular ministry. Some kisoku are special because they are specifically anticipated in the constitution: the rules issued by the Supreme Court governing the details of court procedure and administration, and the rules passed by each of the Diets two chambers to govern their own affairs (though some of these administrative details are actually set forth in a statute, the Diet Act).

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Any attempt to scale Japans mountain of rules is doomed

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Written by simmons |

February 24th, 2015 at 8:45 am

Posted in Buddhism