Introduction

The author went on a business trip to the capital city of Canada, Ottawa from 13 to 18 June, 2018, an opportunity that came about as the result of becoming a President of the Japanese Association for Canadian Studies^[1] which is a regional research association on April 1, and being scheduled to participate in the Annual General Meeting of International Council for Canadian Studies.^[2] Although it was not made because I had anticipated representing the Private University Research Branding Project of Chuo University “Comprehensive Analysis on Diversity of Legal Systems in Asia-Pacific Region and Convergence towards Establishment of the Rule of Law,” it was a great opportunity to think about legal research from a comparative perspective and furthermore expressing the research in English which are the core part of research branding.

That’s why I would like to introduce the current progress of work in the above-mentioned research branding project, while introducing the experiences gained from visiting Canada.

Two legal systems and English

In the above-mentioned research branding project, English is a common working language. This is based on the fact that, in reality, the only language that can be utilized as a common language by countries in Asia and the Pacific is English. However, the problem is that the English language in the fields of jurisprudence and actual practice of law has been connected with British law throughout its development. British Law was propagated later in England’s colonies, and many countries and regions still apply it today after making modifications to suit each society, while keeping its basic characteristics intact, which makes it safe to say that it has become a borderless legal system. We often see the expression Anglo-American Law, but this expression was modeled by America after the global widespread of British Law adaption. However, in reality, legal systems that have common characteristics while also having some variations exist, such as English-Canadian Law, English-Hong Kong Law, and English-Australian law.

Meanwhile, the law of Japan was heavily influenced by laws of the United States especially after the Second World War, but the core principles of that legal system was derived from laws in Germany and France, which are known as “Civil Law.” As a result, a considerable degree of major discrepancy in legal systems exists between the English-Canadian Law and Japanese Law. The problem with this is, when trying to interpret Japanese laws in English we often face situations where a corresponding system simply doesn’t exist, or a similar system exists but varies in essence or in principle.

The delicate relation between law and language from my experience in Canada

For instance, during my business trip, I used the interval time of the international conference to go on a guided tour to Supreme Court of Canada, which I haven’t been to for a while, and there I had a rather intriguing experience. The tour took nearly an hour, and the number of participants was as small as 10. The guide was a current law student at a university in Canada, so he welcomed any questions about the legal system of Canada, and received many enthusiastic questions. An old American who apparently looked like a lawyer asked the most number of questions (By the way, I was probably the second). What I found most interesting was the discussion on the differences in Canada’s and America’s legal systems regarding application of “double jeopardy.”

In Japan, this concept is translated as “Niju no kiken (二重の危険),” which means that “Citizens are required to bare the risk of criminal prosecution for the same offense only once. (They are not liable to accept a second prosecution). In the United States, it is combined with the application of the system when a trial judge grants acquittal at the first trial (or a verdict of “not guilty” in case of a jury trial), the government side (prosecutors, etc.) cannot appeal. While in Canada, appeals from the government side are allowed. “Canada doesn’t have double jeopardy then?” the American lawyer responded directly after hearing that “Government can appeal.” However the guide answered, “We do have it.” As a matter of fact, the provision exists in Section 11, Item h of Canadian Charter of Rights and Freedoms in Constitution of Canada. It states that “Any person charged with an offence has the right … if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.” The wording “finally” here is interpreted to allow an appeal by prosecutors. In the end, the student guide and the lawyer winded up speaking privately, while I stood nearby listening. Although the American lawyer understood the difference in legal systems, he was not convinced, saying, “This is not double jeopardy.”

This trivial experience made me realize once again that from the differences between legal systems, untranslatability can exist even for the U.S. and Canada whose legal systems are derived from the same British law and which share a common English language.

Actually it can be said that the exact same problem occurs in Japan. Article 39 of the Constitution of Japan provides “何人も、実行の時に適法であつた行為又は既に無罪とされた行為については、刑事上の責任を問はれない。又、同一の犯罪について、重ねて刑事上の責任を問はれない.” And its official English translation is “No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he has been acquitted, nor shall he be placed in double jeopardy.”^[3] Thus, the second sentence “重ねて刑事上の犯罪を問われない” (shall not be criminally liable for the same crime twice.) was not translated directly, but was expressed as “nor shall he be placed in double jeopardy.” That part’s translation is considered attributable to the fact that the draft prepared and presented to Japanese side by General Headquarters during the process of creating the Constitution of Japan had already included double jeopardy. Japan is also like Canada in that appeals from prosecutors are allowed, so if the above-mentioned American lawyer had seen that provision he would have probably screamed “this is not double jeopardy.” From the Canadian Law’s perspective, the double jeopardy in Canadian law and that in Japanese law can be said to be theoretically a common system.

In the survey for research branding

Currently, research branding project led by the author is conducting surveys to compare diversities in laws of data privacy, international transactions, and conflict resolution including its cultural background in the 6 jurisdictions: Japan, South Korea, Thailand, Hong Kong, Singapore and Australia. The process includes sending questionnaires to overseas research partners, and getting the responses. The language used for this is unified to English, which brings with it the difficulties of handling the English language.

The second year of the project in 2017 was rather focused on collecting basic information such as the provisions of statutes, so there were no major problems. However, work in the third year is about conducting case studies, and there exists the problem of untranslatability. For example, in the field of data privacy, we created a scenario based on a real case that happened in Japan. We then ask what possible legal actions and social responses might follow if a case with a similar scenario occurred in a different jurisdiction. In the first place, making a problem with a Japanese social structure fit into a scenario in English is a difficult challenge in itself.

Concretely, when providing a scenario about “illegal transfer of personal information to third parties regarding transactions among enterprises of Keiretsu (an affiliated companies),” firstly, expressing the concept of Keiretsu becomes a problem to begin with. In newspapers for example, it’s even expressed as “Keiretsu” often, but there should be some ingenuity in finding out how to express it in a way that’s easy to understand. However, that is not the essence of the problem. Keiretsu is one actual form (but typical) of business combination in Japan, but because actual forms of business combination in each jurisdiction are expected to vary in economic, social, and legal form, it is necessary in the scenario to indicate that a problem pertaining to “Keiretsu” (business combination) can occur in Japan, and then imply the actual situation in each jurisdiction in response. By including such points in the scenario in English, it is required that responses in English from research partners allow research partners from jurisdictions other than said jurisdiction to also understand background circumstances in said jurisdiction.

Conclusion: English as the language of common law and English as an intermediate language

Actually, the ongoing research is targeting 3 jurisdictions using the common law system, and 3 jurisdictions using the civil law system. Another problem is that research partners from the former 3 jurisdictions use English as a language to present their own country’s laws, while research partners from the latter 3 jurisdictions do not. As a matter of fact, researchers from the latter 3 jurisdictions including Japan are aware of the entailed difficulties to represent one’s country’s laws in English, so discussions about how to express one’s country’s laws including the cultural backgrounds and use English expressions as an intermediate language rather than English as the language of common law are becoming more apparent. However, as English is the legal language for the former 3 researchers, they don’t seem to be fully aware of the untranslatability of English from their countries to English for other countries, as well as relativity of English legal expressions. The conversation above between the American lawyer and the Canadian student as well as the American lawyer’s conclusion is probably a typical example of that.

This trip to Canada confirmed that this research has a diversity of methodologies.

Nobuyuki Sato／ Professor of Public Law, British & American Law, Information Law, Chuo Law School, Chuo University
Areas of Specialization: Public Law, British/American/Canadian Law, Information Law

Born in Fukushima Prefecture in 1962.
Finished the Doctoral Program at the Chuo University Graduate School of Law in 1992. Holds a PhD in law (Chuo University, 2000).
After serving as a Full-Time Instructor at Kushiro Public University of Economics, assumed his current position in 2006. In 2016, he was appointed as Director of the joint research project introduced in this article.
His edited works (all co-written/edited) include First Encounters with Canada (2009, Yuhikaku Publishing), Abridged Constitutional Cases 205 (2007, Gakuyo Shobo/Henshukoubou Q), Fundamental Knowledge of Information Education (2003, NTT Publishing) and more.