Prisons are closed environments that pose severe information asymmetry problems. One regulatory mechanism commonly believed to open prisons up to scrutiny is civil prison oversight, which is seen as protecting prisoners’ human rights and promoting prison reform. Civilian monitors are sent in to visit prisons, interact with prisoners and staff, and report what they find. Inspection mechanisms like this are an example of ‘regulatory state’ governance, where the state relies on private actors to fulfil state functions.

Both Japan and the ACT chose to establish civil prison oversight systems about 15 years ago. While Japan chose a 19th century Imperial German design, the ACT followed European models that incorporate contemporary international human rights standards. So it seemed clear that an empirical study would find the Japanese model weak in impact, while the richly featured, well-resourced normative ACT system would shine.

However, the data provided by over 2500 prison staff, civilian monitors and prisoners reveals remarkably similar trends in the lived experience of the people who animate both systems. Interpreting these results using pyramidal enforcement theory, particularly Valerie Braithwaite’s ‘wheel of social alignments’, shows that the striking surface differences between the Japanese and ACT systems are unimportant. They share the same flawed underlying assumptions, and provide public relations benefits at best, while imposing heavy burdens on staff and prisoners.

These findings reveal the continuity of Japan’s ‘welfare state’ governance in the criminal justice domain even when inviting citizens to participate in ‘regulatory state’ style governance. They also show that efforts to embed European-origin mechanisms for regulating human rights into global contexts can be an exercise in hubris, not best practice. Civil prison oversight has largely escaped rigorous empirical scrutiny, yet has been vigorously promoted as effective, even essential, and adopted globally, particularly in the last 25 years. In the end, Japan’s cautious approach to this mechanism emerges as prudent, while the ACT’s enthusiastic embrace appears regrettable. 

Bios

Associate Professor Carol Lawson at the University of Tokyo Faculty of Law

Carol is an Associate Professor at the University of Tokyo Faculty of Law. She teaches courses in Japanese law, Anglo-American law and lawyering skills, including for the Tokyo Intercollegiate Negotiation Competition. She serves on the Japanese Law Translation Council and as an expert adviser to the Japanese legal translation community. Her research concerns regulation and global governance with particular interests in international criminal justice regulation, corporate governance and the legal implications of digitization for both. She uses a comparative sociolegal lens, and mixed methods to carry out empirical research. Information on her publications, grants and appointments is available at https://orcid.org/0000-0002-0819-9646. 

Associate Professor Stacey Steele at the University of Melbourne Law Centre

Stacey is A/Professor at Melbourne Law School and A/Director (Japan) at the Asian Law Centre, University of Melbourne. Stacey has taught Insolvency Law and Corporate Banking and Finance Law, as well as Issues in Japanese Law and in graduate subjects offered by the Centre. She pioneered a short-course study program for Japanese students at Melbourne Law School (2004-2017) and annual programs for Japanese and Korean judicial and prosecutor visitors (2003-present). Stacey speaks Japanese and has extensive knowledge of Asian legal systems and comparative insolvency and privacy law. Stacey is also a practicing lawyer specialising in financial services, privacy and data protection. Stacey has edited three books: Match-Fixing in Sport: Comparative Studies from Australia, Japan, Korea and Beyond (Routledge, 2018) with Hayden Opie; Internationalising Japan: Discourse and Practice (Routledge, 2014) with Jeremy Breaden and Carolyn Stevens; and Legal Education in Asia: Globalization, Change and Contexts (Routledge, 2010) with Kathryn Taylor. Her most recent publication with Professor Jin Chun is a commentary on contemporary issues in Australian insolvency law in Japanese Jin Chun and Stacey Steele, オーストラリア倒産法 [Australian Insolvency Law] (弘文堂, 2022)  Stacey holds degrees from the University of Queensland (BA (Jap)), Monash University (MA (Jap)) and the University of Melbourne (LLB (Hons) and LLM (by thesis)).

Recording found here

The ANU Japan Institute Seminar Series is supported by the Australian Government through the Australia-Japan Foundation of the Department of Foreign Affairs and Trade.