『地域政策研究』（高崎経済大学地域政策学会） 第１巻

第２号

1998年12月 197頁〜206頁

The Comprehensibility of Japanese Legal Language : The Penal Code

Mami Hiraike OKAWARA

日本の法律言語の平易度について─刑法
大

河

原

眞

美

Ⅰ．Introduction

In 1995 the Penal Code of Japan was revised. The revised code was promulgated on 12
May 1995 and was implemented on １ June 1995. The following is Article １ of the Previous
Code and the revised code, i. e. the Present Code.

The Present Code :
〔国内犯〕
第一条

この法律は、日本国内において罪を犯したすべての者に適用する。

日本国外にある日本船舶又は日本航空機内において罪を犯した者についても、前項と同様とする。

The Previous Code :第一条

本法ハ何人ヲ問ハス日本国内ニ於テ罪ヲ犯シタル者ニ之ヲ適用ス

日本国外ニ在ル日本船舶又ハ日本航空機内ニ於テ罪ヲ犯シタル者ニ付キ亦同シ

English Translation1(Crimes within Japan)
Article １．This Code shall apply to every person who commit (sic) a crime within the
territory of Japan.
２．The provision of the preceding paragraph shall also apply to a person who commits acrime on board a Japanese vessel or a Japanese aircraft outside the territory of Japan.
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I assume that some non-Japanese readers notice the same characters such as 日本国内、罪、犯、者、適用、日本国外、日本船舶、又、日本航空機内 in both the Previous and the Present
Codes. However, except for these characters the others are dissimilar in these two codes.
Among different characters, は，に and を in the Present Code and ハ，ニ， and ヲ in theprevious code look different but indicate the same sounds and meanings respectively.
The Present Code was mainly revised to modify the writing of the Previous Code. In thispaper I would like to present the traditional writing style of Japanese law from a historicalpoint of view，the tendency to use plain language in laws，and finally the limitation of the
exclusive use of plain language in Japanese laws.

Ⅱ．History of Writings in Japanese Laws

１．The Use of Chinese Written Language
Japanese did not own any written languages until the late third century when the Discourseof Confucius in written Chinese characters was introduced to Japan from the Korean
peninsula. In the mid-fourth century the first state emerged in the Yamato district，250 miles
west of Tokyo. By the late fourth century Chinese characters were used as the Japanesewritten language among court people and naturalized Japanese of Korean and Chinese births.
By the beginning of the seventh century the court developed into a centralized government
along the lines of the Chinese model. The imperial government transplanted Chinesepolitical institutions and codes in order to defend its dynasty against other powerful clans.
In 604 Prince Shootoku issued the first written constitution of Japan，the Seventeen-Article
Constitution. This Constitution was solely written in Chinese characters. In 689 Emperor
Tenmu promulgated the Asuka Kiyomihara Code，which was the first Japanese legal code
to be divided into criminal laws (ritsu) and administrative regulations (ryoo). During thisera several legal codes were promulgated. All those codes not only faithfully imitated thecontents and forms of Chinese (T ang dynasty) codes， but also were exclusively written
in Chinese characters. The fact that Chinese characters are ideographic２ caused difficulty
in describing Japanese grammatical forms. Therefore，even some Japanese administrators
and jurists were not able to comprehend clearly their own ritsu-ryoo codes.

２．Emergence of katakana and hiragana
The defect of the use of the borrowed Chinese writing system in Japanese led to the useof a number of Chinese characters for their sounds，without taking the meaning into
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日本の法律言語の平易度について─刑法

consideration. Through the use of Chinese characters for sounds two Japanese syllabicalphabets３， 48 katakanas and 48 hiraganas， emerged after the eighth century. Katakana
is one portion of a certain Chinese character while hiragana is a calligraphic sketch of awhole Chinese character.
Katakana was used as a marking guide to render Chinese into Japanese: thecombination of ideograph Chinese characters and katakana alphabets were used in
Chinese poetry， legal codes， and the Buddhist scriptures， diaries by males. On thecontrary，the exclusive use of hiragana alphabets without reliance on Chinese characters
were considered to be simple and thus were predominantly used by females in writing
diaries， essays， and novels. Legal codes from the eighth century to the twelfth century
were basically the Chinese language，only with some guiding katakana marks.

３．The Use of Chinese Characters in JapaneseIn the later twelfth century the military class increased its power in the provinces withthe weakening of the imperial government. Since the majority of warriors were notintellectually committed to the written Chinese language， Japanese language began to be
gradually used in legal codes. Yasutoki Hoojo，the third regent to shogun promulgated alegal code for the warrior class，the Goseibai Shikimoku (the Formulary of Adjudications)in 1232. This was the first code written in Japanese language and form.With thepromulgation of the Goseibai Shikimoku，the entire ritsu-ryoo system was swept way andreplaced by the laws of warriors.

４．The Use of Hiragana in the Codes
By the eighteenth century the Buke Shohatto (Laws for the Military Houses) came to be
written in the use of Chinese characters and hiragana. Hiragana was not any more
women s exclusive writing system; it was rather one writing system indispensable inwritten formal Japanese language.

５．The Revival of the Written Chinese Language
In 1868 Emperor Meiji proclaimed the restoration of direct imperial rule. The new
government overthrew the Tokugawa shogunate. In order to maintain the independenceof the state，the imperial government restructured the legal system and reformed the law.
All the laws were used in the modified written Chinese language form because thecourtiers， unlike the worriers，were traditionally committed to the written Chinese― 199 ―

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language and because it was considered to be appropriate to readopt the old ritsu-ryoostyle due to the nature of the restoration of the imperial regime.
The new government was aware of the need for a penal code to maintain the public
peace. At the early stage the government resorted to Chinese codes，the Ming or the Ch
ing codes， due to lack of the specialists of Western codes. The Provisional Code of 1868
thus followed Chinese legal principles and language. The style and terms of a penal code
was established in this Provisional Code.４
The first Penal Code was drawn up by Gustave Boissonade， an invited French Law
Professor by the government. Boissonade drafted the Penal Code in French， which waslater translated into Japanese for discussion and modification by legislatures. In 1880 thePenal Code was promulgated and implemented in 1882. The first Penal Code had French
legal principles in traditional Chinese ritsu-ryoo style， more concretely， in Chinesecharacters with katakana of guiding marks.
In 1907 a new Penal Code was promulgated and enacted in 1908. The principles of the
Boissonade code were revised， but the style and language remained the same. It was thePrevious Code which was in use until 1995.

６．The Movement of the Use of Spoken Japanese Language
By the late nineteenth century there were various styles in Japanese language: colloquial
speech vs. literary language (classical Chinese writing，Chinese writing with the Japanese
rendering，old epistolary style). Around 1900 the unification of the written and spoken
language，i. e.，the ordinary style， became a social issue and was gradually observed in
novels，poetry，and elementary school textbooks. After the initial use of the ordinary stylein legal articles by Kenjiro Ume around 1905，the ordinary style of writing began to filter
into legal articles and books. By 1920 the ordinary style was predominantly used even inlegal articles and books，but the literary style was still used in legal cases and laws.
In 1926 Prime Minister Reijiro Wakatsuki gave the Cabinet his instruction regarding thebetterment of legal forms.５ The instruction urged the legal experts to use plain and ordinary
Japanese. However，the instruction had little effect on the language of legal cases and laws.

７．Plain Legal Language Movement
As a result of its defeat in World WarⅡ，Japan was subjected to the Allied Occupationfrom 1945 to 1952. During the occupation period Japan was forced to pursue some reforms
such as the establishment of the democratic constitution，reform of the educational system，― 200 ―

日本の法律言語の平易度について─刑法

and reform of agrarian laws. In 1946 the Constitution of Japan was promulgated and cameinto force in 1947. The Constitution was written based on the ordinary Japanese. The
language of the Constitution gave influence to the language and style of other codes whenrevised，
for it was the common view at that time that the Constitution would have never been
written in the ordinary language due to its solemn tone. Code of Criminal Procedure，
Labor
Standard Law，and Trade Union Law are now written in the ordinary language. However，Commercial Code，
Civil Code，
Code of Civil Procedure are still used in classical literal style.
The Japanese language council，basing their Japanese language policy on GHQ，presented a draft list of 1,845 Chinese characters designated for daily use in 1946. The useof Chinese characters in newspapers was soon limited within this list. The restriction of
the use of Chinese characters changed the wording from unintelligible to plain and simple.
In 1981 the Cabinet notified the public of a list of 1,945 Chinese characters in common use.
The language and style of the Penal Code remained basically the same as the Code of1907 after every minor amendment. In the case of a partial amendment of Computer Fraud
in 1987 an amendment draft was first made in spoken Japanese and then was latertranslated into classical literary Japanese for the provisions of the Penal Code. The
movement for the revision of the Penal Code for the use of the spoken language as well as
the revision of the principle occurred in the 1960s. However，the revision regarding somechanges of the principle were severely criticized by the legal profession in general. As aresult，no drafts were laid before the Diet. In 1990 the Ministry of Justice started theprogram of revising the Penal Code mainly for comprehensibility of the language，which
eventually became the present Penal Code.

Ⅲ．The Penal Codes

The Previous Code was written in Chinese writing style with the katakana rendering，
without the use of hiragana，as mentioned before. Since modern written Japanese language
is expressed in Chinese characters for most content words and hiragana for declension andkatakana only for non-Chinese foreign borrowed words, one glance at the Previous Code wasenough to realize that the code language was removed from every day Japanese language.
Secondly，punctuation was not basically used in the Previous Code. No periods were everused in the entire text. Most sentences were classified by items and therefore readers wereable to identify each sentence if they had read the text carefully. However，some longsentences，as shown in the following，caused difficulty in understanding the content.
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第三十四条ノ二

眞美

禁固以上ノ刑ノ執行ヲ終リ又ハ其執行ノ免除ヲ得タル者罰金以上ノ刑ニ処セラ

ルルコトナクシテ十年ヲ経過シタルトキハ刑ノ言渡ハ其効力ヲ失フ罰金以下ノ刑ノ執行ヲ終リ又ハ其執行ノ免除ヲ得タル者罰金以上ノ刑ニ処セラルルコトナクシテ五年ヲ経過シタルトキ亦同シ

English Translation
Article 34-2. When ten years have elapsed for a person against or for whom the executionof a sentence of imprisonment or graver penalty was completed or remitted without his
being sentenced to a fine or graver penalty, the sentence shall lose its effect. The same
shall apply when five years have elapsed for a person against or for whom the executionof a sentence of fine or minor penalty was completed or remitted without his being
sentenced to a fine or graver penalty.

Two long sentences connected one another without periods nor commas were simply
incomprehensible. Only commas for enumeration were used in the Code. Thirdly，in theprevious code dots indicating voiced consonants and p-sounds were omitted. In addition toliterary Japanese style，the omission of dots in declension increased the incomprehensible
nature of the code more. Lastly，some uncommon wording further caused difficulty inunderstanding the text. Not only difficult Chinese character words but also the made-up
Chinese character words for commonly used English borrowed words such as 電子計算機(computer) are used.
The Present Code was drastically improved in character and style. First of all，all the
texts are basically limited to 1,945 Chinese characters in common use and hiragana.Some
Chinese characters outside the list are written with phonetic transcriptions in hiragana at
the side at their first appearings in the text，Needless to say，proper punctuation anddeclension along with dots indicating voiced consonants and p-sounds are used.
Furthermore，a caption for an article is included.Extremely difficult wording isparaphrased in understandable wording.
Despite the improvement of language in the Present Code, it is still difficult for lay
persons to understand the Penal Code. Several Penal Code books translated in simple
language are still published and sold well.
Readability in Japanese language is measured by two major factors: the ratio ofChinese characters and the length of a sentence.６ The high use of Chinese characters anda longer sentence are considered to be difficult factors to read and understand the text.
TableⅠis Morioka's readability scale.７― 202 ―

日本の法律言語の平易度について─刑法

ＴＡＢＬＥⅠ
Length of Sentence

Ratio of Chinese Characters

Very Easy

Below 30

Below 10%

Easy

About 35

Below 20%

Normal40―45

About 30%

Difficult

50―60

35―40%

Very Difficult

Above 70

Above 45%

The Penal Code consists of two books: general provisions and crimes. These two books
are the same in style and language. TableⅡis the average length of a sentence and theratio of Chinese characters of all the sentences counted in Book I of the Previous Code，
the Present Code，and the Spoken Language Version.８

ＴＡＢＬＥⅡ
The Previous CodeThe Present Code The Spoken Version

Length of Sentence

NA

39.19

42.07

Ratio of Chns Chrtrs

59.41

50.44

47.04

Since the previous code did not have periods, it is not appropriate to measure thelength of sentences. The length of sentence in the Present Code is shorter than that of
the Spoken Version. However, it does not mean that the Present Code is easier to readthan the Spoken Version. More words are simply used in the Spoken Version to explain
the Code and thus each sentence tends to be longer than that of the Present Code. The
fact that both the Present Code and the Spoken Version have about 40 characters per
sentence indicate that both are much easier to read than the local news page (51characters) and editorials (58.7 characters) of newspaper.９
The ratio of Chinese characters indicates that the Previous Code is in the range ofdifficult and very difficult . The Present Code is also difficult ,but is close to normal .
The Spoken Version is between difficult and normal .Although much improvement isshown in the length of sentence in codes, the use of Chinese characters seems to have
limits in reducing its number due to the precise use of legal terms. The following is one
example of legal language use.

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第二〇二条

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人を教唆 し若しくは幇助して自殺させ、又は、人を、その嘱託を受け若しくはその承諾を得て殺した者は、六月以上七年以下の懲役又は禁錮に処する。

English translation
Article 202. A person who instigates or assists another to commit suicide，or kills
another at the request or with the consent of the latter shall be punished with penal
servitude or imprisonment for not less than six months nor more than seven years.

The terms such as 教唆 (instigation)，幇助 (assistance)，
嘱託 (commission)，
懲役 (penal
servitude) 禁錮 (imprisonment) need to be distinguished from each other to convey theexact meaning of the Code. If we replace those terms with traditional Japanese terms, そそのかすこと (instigation)，
人のすることをやりやすくしてやるために手助けすること (assistance)，
まかせること (at the request or with the consent of)，監獄にとどめおいて決められた労働を行わせること (penal servitude), 監獄にとどめおくこと (imprisonment)，we would be able toconvey the meaning but we would end up with longer legal terms. Chinese character words
are often difficult to understand，
but they are precise and efficient in meaning and can also
form new words such as 嘱託殺人 (murder by contract). If we stick to traditional Japanesewords， murder by contract would be translated as 頼みをきいて人を殺すこと. Therefore，
the use of every day words does not guarantee readable and pertinent legal text.
We should continue to revise the classical style of legal texts to get for a more readable
one; however, at the same time we need to work for the familiarization of laws. This isparticularly true in the case of Japan. Some Japanese cannot even distinguish between
criminal cases and civil cases. Laws had been regarded as something enforced by lords，
not as something which had protected one s democratic right. Many lay Japanese have
not read the Penal Code nor the Civil Code. Living in a homogeneous society，one isreluctant to resort to court in disputes. Therefore, some subjects regarding laws should
be set up as a part of social studies in high school.10 By reading codes in one s highschool days one would be able to become familiar with legal reasoning, which would
enable him／her to comprehend the legal texts clearly.

Ⅳ．Conclusion

Japanese established its legal system by borrowing Chinese laws and language.
Japanese legal language shifted to a more spoken one after the twelfth century. However，― 204 ―

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in the middle of the nineteenth century legal language was reversed to the modified
Chinese classic style. Since the second World War the ordinary language has come to be
used in some codes in every major revision. However，
the Penal Code was one of the codesthat remained unchanged. The revision of 1995 displayed a great deal of improvement interms of readability，
though there exists some parts which are unintelligible. The fact thatlegal terms should be precise and efficient has set some limitation in the use of every day
language in the legal text. Legal language is also one genre of language，of which nature
should be accepted. Therefore，
we need to work for the legal education at the high schoollevel so that every citizen should be familiarized with legal reasoning. We should continue
to revise the classic style of legal language into a more spoken style; at the same time weneed to be aware and appreciate the nature of formal legal text.
（おおかわら

まみ・高崎経済大学地域政策学部助教授）

NOTES

This paper is based on the presentation read at Joint Meetings of Law and Society
Association and Research Committee on the Sociology of Law of the International
Sociological Association, held at University of Strathclyde，Glasgow，Scotland，on 11 July
1996. I would like to thank the Japan Foundation for offering me travel expense forattending the conference.

１．The Penal Code of Japan (1996) by EHS Law Bulletin Series is used for the translation of
the Penal Code in in this paper.
２．The Ideographic system of writing indicates that graphic symbols represent not only
sounds but meanings.
３．Syllabic alphabets represent both single sounds and clusters of sounds. In the case ofJapanese language a cluster of sounds is a combination of consonant and vowel.
４．Matsuo，Kooya (松尾浩也）(1995)，Kei-houten to Sono Heiika (刑法典とその平易化）［ThePenal Code and Its Plain Language Movement］，Jurist (ジュリスト）vol 1067，p.２ .
５．Chigusa，Tatsuo (千種達夫）(1974), Hoorei Yoogo no Kaisei (法令用語の改正）［Betterment［Expression and Declaration］，Kyooiku
to Legal Terms］， Hyoogen Hyooki (表現・表記）
Shuppan，(教育出版）p.165-6.
６．Takagi，Yuuko (高木裕子）(1991)，Sokudoku-yoo Dokkai Kyoozai Kaihatsu ni muketeReadability Kenkyuu wo kiso ni shite (速読用読解教材開発に向けて―リーダビリティー研究を基礎にして―）［Toward Development of Rapid Reading Material-on the Basis of the Research，Nihongo Kyooiku Ronshuu (日本語教育論集）［The Journal of Japaneseof Readability］
Language Education］，
Kansai Gaikokugo Daigaku Ryuugakusei Bekka (関西外国語大学留学生
別科）［Kansai University of Foreign Language Studies］，p.75. The length of a sentence is― 205 ―

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obtained by the characters in the text divided by the number of sentences. The ratio ofChinese characters is obtained from the number of all Chinese characters divided by all thecharacters used in the text.
７．Morioka,Kenji (森岡健二）(1988), Buntai to Hyoogen (文体と表現）［Style and Expression］,
Meiji Shoin (明治書院).
８．Koogo Keiho (口語刑法）［The Penal Code in Spoken Language］published by Jiyuu
Kokuminsha (自由国民社) is used for the Spoken Version.
９．Takagi, Yuuko, Sokudoku-yoo Dokkai Kyoozai, p.78.
10．The Constitution of Japan is referred to in the course of social studies, but none of theother codes are taken up in Japanese high school.

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