Abstract
In Japanese jurisprudence, it is widely maintained that lawyers should practice in accordance with a legal way of thinking that can be reduced to the form of an if-then statement: "If you find facts specified by the statutes (for example, the defendant was negligent, and the plaintiff exercised due caution), then you must award the decision to the plaintiff." Niklas Luhmann (1972) pointed out that the if-then form is a crucial feature of the modern legal system, and that it carries the advantage of exonerating judges from an examination of all relevant consequences of their decisions.
This article explores the function of this type of exoneration in actual judicial arguments and argues that it can lead judges toward contrary decisions. It mainly examines two important cases in Japan: one concerns punitive damages for nonpecuniary loss (pain and suffering) and the other involves a case in which the plaintiff claimed damages for the loss of the future earnings of his/her children who died in the accident. In the second case, the plaintiff wanted to be paid in yearly installments on the deceased's obit, hoping that yearly payments would make the defendant recall the accident. In both cases, the plaintiffs were trying to punitively punish the defendants through tort liability. As the Japanese jurisprudence provides that tort liability must not be punitive, the court declined the claim for punitive damages. On the other hand, the installment payment was awarded in the latter case in favor of the plaintiff's right to choose the method of payment, regardless of his/her intention behind the punishment; the decision did not support the reasoning that the defendant should recall the accident. In both cases, the advantage of the if-then form played a pivotal part in the arguments.
