I sometimes worry about my continuing failure to devote a column to vagina-kayak creator Megumi Igarashi, the controversial artist currently appealing her May 2016 conviction for the obscene act of distributing data for the topographical coordinates of her naughty parts so that anyone with a 3-D printer can replicate them. Somewhere along the line, she used the data to make a kayak (as one does). It all fits together in a rich tapestry of law interwoven with culture and the absurd double standards applied to genital depictions in Japan.

However, Igarashi has already received plenty of attention, that sort of being the point of her quixotic struggle against the phallocracy. I recall there is some business book that says we should seek to sail in “blue oceans,” free of competition, so in order to avoid the red oceans already crowded with (commentary about) yonic watercraft, I am going to talk about the arguably more important subject of public urination.

As you might expect, it’s a crime — a minor crime, that is, proscribed under the Minor Offenses Act and punishable by jail or a fine. A total of 242 people were nabbed for extemporaneous number ones or twos in 2014.

Actually, a lot of things are crimes under the Minor Offenses Act: wearing medals you didn’t earn, deliberately scaring cows, interfering with funerals, peeping tommery, being homeless or jobless, not reporting dead bodies or abandoned fetuses, as well as using streets and bushes as a toilet. In fact, the act may form part of the foundation of Japan’s famed politeness, and its legislative history shows it was part of an effort to effectively legislate public morality. Queue-jumping, for example, is also a crime (two busts in 2014!), as are some other behaviors that we will get to later.

Dating back to 1948, the Minor Offenses Act replaced a 1908 regulation that empowered the now-defunct Home Ministry (which once controlled the police) to issue decrees defining minor infractions and their punishments. In essence, the police could themselves criminalize whatever bothersome behavior they wanted to deter, punish or use as a pretext for locking someone up.

The list of offenses was much longer back then, and rather more quaint, including as it did: bothering people with religious nonsense, abusive hypnotism, bewildering the ill with bogus mystical potions on them, and aggravating people with false statements or rumors (this was before Facebook, remember). Not only did the police make and enforce these rules, but they tried the cases as well, with initial hearings being conducted before the local chief of police rather than a judge.

This arrangement was incompatible with the country’s postwar Constitution and its bothersome separation of powers. The Home Ministry was dismantled, the police decentralized and the judicial function clearly separated from the rest of the government. The Minor Offenses Act was then passed by the Diet so cops could continue arresting people for being annoying jerks without causing a constitutional crisis.

The legislative history of the Minor Offenses Act is worth reading because at one point there is a back-and-forth between a couple of the participants speculating as to why public urination has become such a problem. One speaker suggests that it has become so common that “even American soldiers are doing it.” Another snorts at the fantastical idea of well-behaved members of the occupation forces engaging in such behavior; no, it is clearly due to some deficiency in Japanese people today.

This exchange resonates with me because it captures how many discussions about Japan end up playing out. Someone says something like “Japanese people are X.” Then, if I am involved, someone assumes I am American and says something like “Oh yeah? Well America is even more X, and Y too.” Another person may agree that Japan is in fact X, but it is actually America’s fault. An ojisan with an advanced degree may be on hand to help explain why his countrymen (implicitly excluding himself) are so backward compared to other (read: Western) countries. Invariably some clever lad scolds everyone else for daring to discuss anything without reference to empirical data on the comparative ethnography of exo-structural micturition. As compelling as these discussions may be, they typically miss the point.

When talking about what the law is or should be — which is what most discussions about law are usually about on some level — the most important thing is usually how the law is used and by whom for what purpose. Laws are just tools, designed and enforced by rational people with rational goals. A random assortment of people of different races and nationalities, washed ashore on a deserted island, probably all quickly learn it is easier to use rocks to break open coconuts than the reverse. How tools can be used — or misused — is an issue that transcends a lot of usually nonsensical generalizations about race- or nationality-based groupings. Whether public urination (for example) is an American innovation or a Japanese vice is a pointless distraction when compared with what authorities can do once it is criminalized (as opposed to sanctioned through nonpenal fines or other civil penalties).

To their credit, many who debated the draft Minor Offenses Act back in 1947 were cognizant of its potential as a tool of state oppression; that was, after all, their experience (in the case of some, personal experience) with the regulations and enforcement regime that it was supposed to replace.

A recurring concern of some was that the law would leave the police countless pretexts for suppressing workers attempting to exercise their new constitutional rights to strike and collective bargain. Indeed, any large gathering of workers at a factory or public space would probably result in a certain amount of public weeing. So efforts to criminalize it may not have just been about social decorum, though in the minds of some commentators the law was about just that: stemming the crushing tide of declining Japanese morality, the favorite lament of Japanese elites since forever. When the first modern prohibition on indiscriminate whizzing was introduced early in the Meiji Era (1868-1912), the reason is said to have been to help make Japan seem more “civilized” in the eyes of Western visitors.

Following the development of the Minor Offenses Act and after it was duly passed into law, what is interesting is that in the 1960s, one of the top grounds for arrests under it became “putting up posters or interfering with the posters of others.”

During the turbulent years of protests by students and labor groups against the Japan-U.S. Security Alliance and the Vietnam War, the Minor Offenses Act became a useful tool for suppressing political speech — posters expressing protest or calling for action — in the name of protecting property rights of utility poles and factory walls. Even today, you may notice the only constituency reliably able to post notices on phone poles (“Beware of burglars,” etc.) is … the police.

The role of the Minor Offenses Act in chilling various forms of expression — anti-establishment expression, that is — is rarely noted but may be significant. In fact, the “social nicety” that the various trivial offenses defined by the law may easily be misinterpreted as cultural. In fact, they may reflect a much more guarded relationship with authority.

The use of these tools only occasionally makes the news. In 2010, a man was arrested for mocking the police by putting up a poster saying “Congratulations on the first anniversary of failing to solve this case” at the site of a gruesome multiple homicide. In 2015, another gentleman was arrested for the heinous crime of adding Hitler mustaches to posters of Prime Minister Shinzo Abe.

Perhaps such actions should be crimes. Yet it is where the police exercise their discretion not to act that the true shape of the law becomes apparent. In 2015 the Diet passed the nation’s first anti-hate-speech law. Some may see it as a step forward, but it is an oddly-written thing, containing no criminal penalties, limited in scope to discriminatory speech directed at “people from other countries” who are “legally in Japan.”

I suppose credit should be due for drafting a law with enough specificity that it can’t be used to suppress critical, negative or sarcastic (!) speech of any sort (“Your snarky tweets about our dumpling festival mascot character were hateful,” etc.). However, that still may not save it from appearing to be a ridiculous law. Insofar as the primary victims of hate speech have been Japan’s ethnic Korean community, which has roots going back for generations, a legislative response that characterizes them as “people from other countries” seems pointlessly mean-spirited. Moreover, by defining hate speech in terms of the visa status of its victims, the law bizarrely seems to greenlight by omission hate speech directed at illegal immigrants, visa overstayers, children born into such categories and numerous disadvantaged communities of Japanese people.

And here’s the thing: If authorities really wanted to do something — that is, use the coercive tools of the state to stop it, as they have done to people defacing Abe posters — the necessary tools already seem to exist in the Minor Offenses Act. In fact, the legislation seems to include tools for dealing with abusive right-wing sound trucks and, for that matter, stalkers as well: that is, “inconveniencing large numbers of people in public places with significantly coarse or violent words or behavior,” “using abnormally loud sounds such as voices, musical instruments or radios to disturb the peace and inconvenience the neighborhood, in violation of official instructions to cease and desist” and “following other people around in a way that is frightening or bothersome” are all crimes under the Minor Offenses Act. If standing outside a school and shouting hateful, threatening things at the children inside through a megaphone at (as was the case at a Korean school in Kyoto a few years ago) doesn’t trigger one of these proscriptions, I can’t imagine what else possibly could.

Whether any particular type of expressive behavior should be criminalized or regulated as hate speech is a subject well worth extended discussion. However, the subtle ways in which enforcement decisions are already shaping behavior should never be forgotten. It shouldn’t take a whiz to figure these things out.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Law of the Land usually appears on the second Monday Community Page of the month. Your comments and story ideas: community@japantimes.co.jp