Cornell International Law Journal


This article treats the striking divergence between Japanese and U.S. civil cases as to standards of proof. The civil law of Japan requires that facts be proven to a high probability similar to beyond a reasonable doubt, while the common law of the United States requires that the burdened party satisfy merely a more-likely-than-not standard. This divergence not only entails great practical consequences, but also suggests a basic difference in attitudes toward the process of trial. As to the historical causation of the difference in standards of proof, civil law and common law standards diverged in the late eighteenth century, probably because of one system's French Revolution and the other's distinctive procedure. The French Revolution, in the course of simplifying the civilian law of proof, hid the standards of proof from view. Meanwhile, the common law jury served to induce judges to articulate standards of proof for the adversary system. As to the systems' current motivations to adhere to the old standards, the different standards conform to the subtle differences between the two systems' procedural objectives. The civil law system seeks the legitimating benefits of the myth that its courts act only on truefacts and not on mere probabilities. Common law courts seek legitimacy elsewhere, perhaps in other myths, and thus are free to adopt preponderance of the evidence as the standard of proof that more efficiently and fairly captures the real truth of the case.

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