Is Japan Less Litigious Or is the Mafia Serving as a Second Court System?

Japan is less litigious than the United States, or so I used to read. In a formal sense, that’s likely. Japan has far fewer lawyers per capita than the U.S. has.

But the yakuza, the Japanese mafia, reportedly offers a service that, to my knowledge, is not generally offered by La Cosa Nostra, the U.S. mafia. In Japan, two legitimate businesses can ask the yakuza to adjudicate a dispute between them, such as if a restaurant and a carpenter disagree on a bill and the yakuza figures out who deserves what. From what I’ve read of La Cosa Nostra, in the U.S. that service is only for internal mafia disputes and the mafia will do bill collections for its clients, but that’s after a client says it’s owed an amount it states and, at that point, as far as La Cosa Nostra is concerned, it’s generally too late for the other party to dispute it. If the yakuza offers dispute resolution between above-board businesses, maybe the local government is not allowing court litigation that should be permitted.

Crime May be Beneficial

Comparing societies and what kinds of crime occur in each can reveal which societies have much demand from the public for services that other societies either openly provide or don’t seek.

Of course, not all crimes should be welcomed. Murder, rape, and arson are widely demanded and supplied (or facilitated in the case of rape through forced prostitution), but at least murder and rape, and I think arson, are almost universally criminalized, even in small societies that are often thought of as naturally peaceful. There is no widespread argument for issuing licenses to kill, rape, or burn without consent in the private sector.

But not all criminal activities are so widely condemned. Laws are not identical around the world. Laws, especially where the polity is actively engaged in lawmaking and in selecting lawmakers, tend to approximate what people want, but are not always even close. Sometimes a substantial part of a society wants the law to say something else. Sometimes societies differ.

Societies that overtly do less of something and in which their own criminal organizations do more of that same something should examine why it is doing less of what people are demanding. This is especially applicable when a comparison is to societies that are successful models.

The demand can be surveyed. The public is going to providers who likely are criminals but who will somehow do what the public wants.

Organized crime usually exists because its practitioners want something they think they can’t get any other way, and to serve the public in this way will usually come with demands for compensation in a form satisfactory to the criminal organization. Part of what a criminal organization wants is insurance against being broken up by the police at the behest of whomever asked for the service of a criminal. The best way to get that insurance is to require whoever wants their service to commit a crime that will frighten them from any police contact. That will increase crime. That undermines the stability, success, and security of society and the safety of people. Thus, letting criminal organizations provide services that should be provided by aboveboard systems, such as a government or the private sector, undermines society.

An exception is for a society that lags in meeting public needs. In the worst cases, that leads to revolution, such as was held in the U.S. in 1776. In lesser cases, the lag can lead to civil disobedience. Civil disobedience combines violation of law with conformance with most of the societal expectations for good members of society (this may have secularly underpinned Dr. King’s call for nonviolence), cooperation with law enforcement, and publicity for the cause, including publicity for the need, for a solution, and for the violation of existing law (which is why civil disobedience is visible). Crime without the conformance, the cooperation, and the publicity is just crime, and every society has an inherent right to suppress crime, even painfully.

Research into how crime fulfills public demand is necessary. Surveys are one tool. But this is difficult, mainly because looking at organized crime, especially organizations that murder, kidnap, rob, and rape on a large scale, gives the appearance of condoning crime and being untrustworthy, which makes the conclusions seem untrustworthy. But it is necessary research, which often can be done not by government officials but by academics and journalists.

Taking it Away

That can lead to policy recommendations, some of which can be chosen by members of government and eventually ratified.

If reforms are identified and carried out well, the effect will be to reduce public reliance on organized crime and to increase public reliance on a publicly accountable private sector and government. Predictability of performance and taxable revenue are normally easier to arrange. The public can spend more on what it wants and less on security against what it doesn’t want.

For Japanese litigation, maybe adjudicatory venues for small businesses and individuals with disputes can be redesigned for timely and economical service in larger volumes, perhaps administrative agencies and courts for small claims. With official experience, maybe results will be found by the public to be fair. The yakuza, to my knowledge, does not publish its findings of fact in disputes and they are less predictable, thus, given the role of law in educating in advance about rights and expectations, organized crime is less useful to society than are lawful service providers.