『地域政策研究』（高崎経済大学地域政策学会） 第 13 巻

第４号

2011年２月

127頁〜 133頁

＜研究ノート＞

日弁連の法廷用語日常語化の取組み
大河原

眞

美

A Project to Simplify Japanese Courtroom Language

Mami Hiraike OKAWARA

１．Introduction
The implementation of the lay judge () system in 2009 has opened the way to

substantial lay participation in Japanese courts. In this presentation I will introduce Japanʼs ﬁrst
plain language project carried out by legal experts in collaboration with non-legal experts. I will
first explain the lay judge () system. Next, I will show the brief outline of the plain

language project. Then, I will discuss the details of the surveys and some of the results from the
project. Finally, I will conclude this presentation by adding how plain-language approach is now
being perceived in the era of lay participation.

２．The Lay Judge () SystemJapanese lay judge system is not the ﬁrst lay judge system in Japan. Japan previously had ajury system, which was introduced in 1928 and suspended in 1943 due to a limited number ofcases. The current lay judge system was proposed as a pillar of the judicial system reform in
2001. The lay judge system is expected to make court procedures more efficient and morecomprehensible through public participation.
Japanese lay judge system is a middle-of-the-road system between the Common law jury
system and the Roman law lay judge system. Like the Common law juries, Japanese lay judges
serve a term of only one case. However, unlike the jury system of Common law countries,
Japanese lay judges deliberated on cases together with professional judges. This means thatcourt trial judges as well as lay judges participate in the decision-making process. If they reach a
guilty verdict, they then decide on what kind of penalties, fines, prison terms they need to− 127 −

Mami Hiraike OKAWARA

impose. Not all cases are heard using the lay judge system. Only criminal cases with serious
offences are subject to the new system, and the defendants in such cases cannot choose thetraditional court-judge system. Lay judges serve in trials in the ﬁrst level district courts. Not
only defendants but also prosecutors can appeal decisions of lay judge trials to higher courts.
The deliberation body consists of three professional judges and six lay judges. Trials areopen to the public, but deliberations are held behind closed doors. Lay and court judges are notallowed to discuss its deliberations in public.

３．The Plain Language Project
A new law concerning criminal trials with lay judges was promulgated on 28 May 2004. In
response to this new law, the Japan Federation of Bar Associations (JFBA) set up the lay-judge
preparatory headquarters in August of the same year. Progressive lawyers have harbored great
expectations in the lay judge system because the criminal court would be drastically changed
from the monopoly of court by legal experts to the shared court between legal experts and lay
people. Lay participation was also expected to prompt trials from dependent on written
professional documents to using oral plain language. To meet the expectations, the project tosimplify courtroom language was launched by the lay-judge preparatory headquarters.
The project is characterized by collaboration between legal and non-legal experts. To reﬂect
daily Japanese usage, the project included language-related experts such as one socialpsychologist, two linguists, one television caster, one television announcer, together with sevenlawyers and one criminologist. As legal experts regard themselves as language experts, theincorporation of non-legal experts into a project of JFBA was a highly unconventional method
used in Japan.

４．Survey Results1
１）Survey
The project needed to gain a clearer perception how lay people feel about legalese (a formof languages used within the communities of legal professionals). Therefore, the project team
decided to identify three features: (1) the type of legal terms which lay people felt they knew; (2)how lay people actually understood the terms they had indicated they knew; (3) the type ofvocabulary lay people used when they were explaining those ʻknownʼ terms.
The project first selected fifty legal terms from among legalese commonly used in the− 128 −

A Project to Simplify Japanese Courtroom Language

courtroom, using legal textbooks which include verbal exchanges in criminal trials. Needless tosay, their own criminal court experience of attorneys was reﬂected in the process of selecting
ﬁfty words.
The survey was to be conducted to obtain lay peopleʼs thoughts about the ﬁfty legal terms,
using a field research method called cognitive interview (Aldbridge & Wood (1998), Naka
(2001a), Naka (2001b)). The respondents of the surveys were 46 lay people consisting ofuniversity students and oﬃce staﬀs. The respondents were ﬁrst asked Question (1) to each ﬁfty
word. If a respondent answered ʻyesʼ to Question (1), then Question (2) was given to the word towhich the respondent gave the ʻyesʼ answer. Those who answered ʻnoʼ, that was the end of thesurvey on the word with ʻnoʼ answer. In Question (2) there are five answers to choose. The
responded answers were converted into a ﬁve-point rating scale, where 1 is ʻnot at allʼ and 5 isʻvery wellʼ. After obtaining answers to Question (2), the experimenter encouraged respondents
to talk about fifteen or twenty selected legal terms freely. By doing so, the experimentercollected verbal information on legalese. The survey thus identified types of vocabulary lay
people used when they were explaining those ʻknownʼ terms.

Question (1) Have you heard this word ()?

Yes → Question (2)No → End of survey
Question (2) How well do you know this word ()?

Very Well
Well
Neither well nor no
Not well
Not at all

The ﬁfty words were ﬁrst arranged in order of the number of ʻyesʼ answers to Question (1).
Then, the average score of each legal term answered in Question (2) was listed in descendingorder by score. We have found a correlation between Question (1), the category of ʻheard-offeelingʼ and Question (2), the category of ʻalready-known feelingʼ.
The degree of importance of the ﬁfty words was measured by a survey for attorneys, using afive-point scale. Although there was a definite correlation between lawyersʼ ʻimportant-wordʼfeeling and lay peoplesʼ ʻheard-of-feelingʼ, the correlation between lawyersʼ ʻimportant-wordʼfeeling and laysʼ ʻalready-knownʼ feeling was distantly held. This means that lay people have
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Mami Hiraike OKAWARA

heard of ʻimportant legal termsʼ but it does not necessarily mean that lay people feel that theyknow the meaning of these important legal terms.
With these ﬁndings, the ﬁfty words were then classiﬁed into four groups: a) important but
not known; b) important and well-known; c) not important but well-known; d) neither important
nor known. From the classiﬁcation based on the survey, the project concluded that Group a)requires explanation and rewording; Group b) was considered to take fewer measures; Group c)
demands caution for lay understanding; Group d) should be given less priority. The project teamcommenced paraphrasing legal terms in the order of a), b), c), and d). In the process ofparaphrasing, the project team checked the type of vocabulary used when explaining theirʻknown-wordsʼ so that we could judge how correctly they knew legal terms.

２）Rewording Work
Most of the time spent on the project was rewording work. Rewording work was conductedby joint eﬀort between legal and non-legal experts. Legal experts oﬀered legally adequate but
rather lengthy explanations for legal terms under examination. Language experts then provided
understandable but brief paraphrases to these words. After a long discussion about each legal
term, the gap of understanding between legal and lay cultures was narrowed; comprehensible
and suﬃcient rewordings were thus produced.
The writer illustrates this paraphrasing process of legalese with an example of ʻsuppressionof rebellionʼ (). ʻSuppression of rebellionʼ () is not a legal

technical word, but it is a mandatory phrase written in charging facts in a case of robbery, for the
purpose of distinguishing ʻrobberyʼ from ʻtheftʼ. ʻTheftʼ indicates taking someoneʼs property with
the intent to permanently deprive them of it while ʻrobberyʼ requires a form of violence or threatof violence used to deprive someone of their property, in addition to the definition of ʻtheftʼ.
Article 235 (2) of the Japanese Penal Code stipulates that a person who robs another of property
through assault or intimidation shall be punished by imprisonment with work for a deﬁnite termof not less than 5 years. On the other hand, Article 236 of the code states that a person who
steals the property of another shall be punished by imprisonment with work for not more than
10 years or a ﬁne of not more than 500,000 yen. ʻTheftʼ and ʻrobberyʼ are therefore diﬀerent
crimes with diﬀerent punishments.
ʻSuppression of rebellionʼ () is used to clarify that the defendant used

force or imposed fear on the victim in order to prevent resistance. Japanese public prosecutors
thus use ʻsuppression of rebellionʼ () in charging facts as follows: thedefendant suppressed the victimʼs rebellion and stole 32,000yen from the victimʼs bag ….
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A Project to Simplify Japanese Courtroom LanguageʻSuppression of rebellionʼ is, however, an incomprehensible phrase to Japanese lay people.
In English ʻsuppression of rebellionʼ means that someone in authority stops a violent organizedaction by a large group of people who are trying to change their countryʼs political system, justlike Britishʼs suppression of colonies in America. From the point of British people in those days,
they had the justiﬁable grounds to suppress rebellious colonists. In Japanese, ʻsuppression ofrebellionʼ is an incompatible combination of two words. ʻSuppressionʼ indicates that someone inauthority put down either anti-social or anti-Establishment movement by using force or making
it illegal. On the contrary, ʻrebellionʼ means a more personal violent action by someone who istrying to change his or her current status, to give one example, ʻa rebellious childʼ. Whileʻsuppressionʼ involves a more justiﬁable notion, ʻrebellionʼ has an anti-authority type of action.
Therefore, Japanese lay people would be confused and would conjecture that a policeman
ʻsuppressedʼ the defendantʼs ʻrebelliousʼ conduct.
At a project meeting, non-legal experts were also confused with ʻsuppression of rebellionʼ
and could not understand ʻwhoʼ did ʻwhatʼ in the charging facts. Therefore, language experts
oﬀered a clearer rewording from their linguistic sense. They proposed the use of ʻresistanceʼ
() instead of ʻrebellionʼ (). As ʻresistanceʼ () indicates ʻan attack consists ofﬁghting back against the people who have attacked youʼ, language experts said that lay people
could imagine that the defendant put down the victimʼs resistance, using ʻsuppression ofresistanceʼ. However, attorneys and criminologist disagreed with the use of ʻresistanceʼ (instead of ʻrebellionʼ (). It is because ʻrebellionʼ ()) includes the notion that thedefendantʼs threat is strong enough that a victim cannot fight it back. Therefore, the use ofʻresistanceʼ limits the interpretation of the defendantʼs robbery conduct. After a long discussion,
the project team concluded that ʻsuppression of rebellionʼ () means that thedefendant put the victim into fear physically as well as mentally, and that it includes the victimʼssubmission despite his or her failed resistance.

３）Results
On November of 2005 the project team presented an interim report on sixteen legal terms,
which was widely covered in the media. The public prosecutors oﬃce was mildly critical of theparaphrase of ʻopening statementʼ (). In our paraphrase ʻopening statementʼ is ʻastory read by a public prosecutor or a defense counsel at the beginning of the examination ofevidenceʼ. As public prosecutors have indicted a defendant for a certain crime with absolute
conﬁdence in Japan, they thought the usage of ʻa storyʼ makes their opening statement a mere
conjecture of a criminal act. As Article 296 of the Code of Criminal Procedure puts ʻat the outset− 131 −

Mami Hiraike OKAWARAof the examination of evidence, a public prosecutor shall make clear the facts to be proved byevidenceʼ, public prosecutors have used the term ʻfactʼ, not ʻstoryʼ. However, in daily Japanese
the term ʻfactʼ is ʻa piece of information that is known to be trueʼ. If the word ʻfactʼ is used in theparaphrase of ʻopening statementʼ, lay people would find it difficult to understand that theburden of proof is placed on the prosecution. ʻThe term ʻstoryʼ, which was originally considereda misuse, has become an acceptable word in the era of lay justice system.
On April of 2008 the paraphrase work on the sixty one legal terms was completed andpublished in two books: one book for lay people,(), and the other for legal experts with the highlightsof the discussion between lay and legal experts,(). It is also included in an electric dictionary published by

Sanseido.

５．Eﬀects on Legal and Lay Worlds
１）Legal WorldTo prepare for the new lay judge system, district courts, together with public prosecutors
office and local bar associations, held 500 mock trials throughout Japan between 2006 and2009. There are about 300 cases tried under the lay judge system since its introduction of
2009. I have observed some of mock and real trials and found that some public prosecutors
used ʻstoryʼ instead of ʻfactʼ in the opening statements. Other legal terms discussed in the project
are also carefully treated in trials. Legal experts have gradually realized that they are expected
to use plain legal language in the era of lay judge system.

２）Lay WorldOn February of 2009 the writer published one book named, ʻTrial Language Funny Studiesʼ() on legal language from the perspective of lay people. I selectedpeculiar legal terms and expression from lay perspective and discussed what they actually mean
and why they are different from our daily language. As this book is the first book on legal
language written by non-legal experts and published by non-legal publishers, it was widely
covered on television, radio, newspapers, and a weekly magazine. On July of 2010 the writer
published another book, ʻThe Inside Story of Legal Professionʼ (). This book includes some background of the legal profession as well as legal
langnage.
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Although legal system concerns daily peopleʼs lives, legal language has been used by legal
experts, to legal experts, and for legal experts. Lay judge system has opened a Pandoraʼs box ofpeculiar legal language. It is certainly a favorable chance for language experts to deal with plain
language issues in legal circles.

Note：This paper is a revised version of the paper read at a plenary session of the Clarity 2010conference held in Lisbon, Portugal, from 12 to 14 October 2010.
（おおかわら１

まみ・高崎経済大学地域政策学部教授）

Fujita played a pivotal role in conducting the survey. See Fujita (2005) for details.

References
Aldridge, M. & Wood, J (1998),(Wiley series in childcare and protection), Chichester: Wiley.
Fujita, M. (2005), Houtei yougo ni kansuru mensetsu chosa (Interview survey on legalese),()
Vol.56 (3): 79-91.
Japan Federation of Bar Associations (2008),(), Tokyo: Sanseido.
---------- (2008b),(), Tokyo: Sanseido.
Naka, M (2001a), Kagaku kantei no ugoki: bengo katsudou no tame no ʻ hou to shinrigaku (6) kodomo no mensetsu hou(Trends in scientiﬁc expert opinions, law and psychology for criminal defense (6) child interview techniques)() Vol. 26: 186-191.
----------- (2001b), Kodomo no mensetsu - houtei ni okeru ʻhouritus-ka kotobaʼ no bunseki(Child interview - language analysisof legal experts in the courtroom),() Vol.1 (1):80-92.
Okawara, M. H. (2009),(Trial Language Funny Studies), Tokyo: Taishuukan.
---------- (2010),(The Inside Story of Legal Profession), Tokyo: Seiryuu Shuppan.

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