On the Ethics of Exporting Ethics: The Right to Silence in Japan and the U.S.

At the end of WWII, U.S. occupation forces transformed Japan from an autocratic polity into a constitutional democracy. Part of the plan called for transplanting the constitutional right to silence for criminal defendants, to replace the traditional Japanese emphasis on confessions. The failure of this effort is the starting point in this essay for reflecting on the possibilities of ethical deliberation across cultures. It is argued that U.S. legal experts failed to appreciate what is compelling in the Japanese view that citizens have a moral duty to be accountable to one another for their conduct. To facilitate this appreciation, the essay assesses standard justifications of the right to silence in the U.S. and discusses the duty of confession in a context more accessible to U.S. scholars—college tribunals—which is a resource for reflecting on Japanese practice. Connecting these different contexts is the claim that, in determining whether a right (such as the right to silence) should be recognized or not, the crucial determinant is the nature of valued relationships. Rights are not freestanding attachments of individuals but constituent components of associational ideals.