On the order our society has lost — a reflection prompted by how we treat children’s wrongdoing
1. A familiar phrase
When a child does something serious, the same sentence tends to surface — in schools, in the news, at the dinner table.
“That child can’t be charged with a crime anyway.”
There is no malice in it. More often than not, it comes from a genuine wish to protect the child. And yet this single phrase contains a leap that any lawyer would catch in an instant. An entire step has gone missing.
What I want to examine here is not the ignorance of any particular person. I want to write about a certain order — one that is missing alike from our schools, our media, our administration, and our own intuitions. And I want to show that this order is preserved, with surprising clarity, in a field that seems at first glance utterly remote from education or care: criminal law.
2. The three gates a crime must pass through
When the law decides that “this is a crime,” the act must pass through three gates, in sequence. The sequence is decisive: you cannot reach the next gate without clearing the one before it.
The first gate is conformity to the legal definition (in Japanese doctrine, kōseiyōken-gaitōsei; in common-law terms, roughly the actus reus — whether the act fits the statutory template at all). Does the actual conduct match a “template of crime” the law has set out in advance — “killed a person,” “took another’s property”? If the conduct fits no template, it never even reaches the threshold. Swatting a mosquito does not amount to “killing a person.”
The second gate is wrongfulness (ihōsei; unlawfulness). Even when conduct fits a template, it may be exceptionally permitted. Self-defense against an attacker is the classic example; if it applies, no crime is established. Conversely, where no such exception applies, the act is fixed as unlawful — in plain terms, as “a wrong.”
The third gate is culpability (sekinin; blameworthiness). Even after an unlawful act, if there are circumstances under which the person cannot be blamed, no crime is established. A severe mental disorder that destroyed the capacity to tell right from wrong — and, crucially here, criminal minority: a child under the age of fourteen.
Picture these as three gates passed in order. Fail to clear even one, and you go no further.
3. The two gates that get skipped
Now hold the opening phrase — “that child can’t be charged anyway” — up against these three steps.
When a child under fourteen injures someone, what is actually happening? The first gate: the conduct fits the template of assault, or whatever it may be. The second gate: absent self-defense and the like, it is unlawful. In other words, a wrong has indeed occurred. Only then, at the third gate alone, does age lead to the judgment that “this child cannot be blamed.”
This is the heart of it. The wrongfulness of the act has not disappeared. It remains. It is only that “the child cannot be held to account.”
But the phrase “can’t be charged anyway” skips the first and second gates entirely and extracts only the third conclusion. And then, unnoticed, an implication slips in: “so it wasn’t really a wrong at all.”
This is no mere turn of phrase. Real harm follows.
So long as an unlawful act genuinely exists, self-defense against it is valid. The misconception that “since the child can’t be charged, fighting back against that child is itself unlawful” is born right here. Likewise, an adult who uses a child under fourteen as a tool to commit a crime is held gravely responsible as a perpetrator-by-means (indirect principal). It is precisely because wrongfulness remains in the child’s act that we can punish the adult who exploited it. Say carelessly that “no crime is established for the child,” and this becomes impossible to explain.
The law is far more precise. “A wrong has occurred. It is simply not the stage at which to punish this child.” It never lets go of this two-tiered structure.
4. Why it is especially serious when educators skip these steps
For a lawyer, this distinction may be a matter of theoretical precision. For an educator it is not. What they face every day is exactly this: “a child who has done something unlawful but is not yet of an age to be held accountable.”
Failing to hold this distinction distorts all three of an educator’s duties.
Guidance of the child who caused harm collapses. Start from “can’t be charged,” and “didn’t really do anything wrong” slips in. But what the child needs is the two-tiered message: “What you did was indeed wrong. It is only that the law will not yet punish you.” An adult who cannot convey this either blurs the very thing they ought to confront, or swings the other way and treats the child excessively as a “criminal.”
Response to the child who was harmed breaks down. “The other child can’t be charged anyway” lands on the victim’s side as nothing but “put up with it.” What ought to be said is that the act itself is unlawfully established, and the school will confront it head-on as an unlawful intrusion.
And consistency with the law is lost. Japan’s Act on the Promotion of Measures to Prevent Bullying does not presuppose criminal liability in the first place; it is built to have schools intervene against unlawful and harmful conduct as such. The notion that “since it isn’t a chargeable crime, there’s little need to respond” runs head-on into the purpose of that law.
5. But this is not the fault of the individual on the ground
Let me pause here. To blame frontline educators as “ill-informed” is easy, but unjust. The problem lies further upstream, in the design of their training.
The law that teacher-training programs cover is heavily tilted toward “education-related statutes.” The Educational Personnel Certification Act, its enforcement regulations, and the “Core Curriculum for Teacher Training” that defines what every program nationwide must impart — all of these fall under Japan’s Ministry of Education (MEXT), and all concern law that relates to education, not the doctrinal architecture of criminal law. The three-step structure — conformity to definition, wrongfulness, culpability — is simply not part of what the standard training route is designed to teach.
Those certified in civics or social studies may encounter the general part of criminal law as a subject specialty. But primary-school teachers — who deal on the front line with children of exactly the age that cannot be charged — and teachers of other subjects have no institutional occasion, on the standard route, to learn this logic.
In short, many teachers receive only the conclusion — “under fourteen can’t be charged” — severed from its logical structure. Knowledge memorized as conclusion alone cannot be applied on the ground. And so they misjudge across all three duties. This is not individual negligence; it is a “conclusion-only, logic-removed” imprint left at the training stage.
6. The distortion swings the other way, too
So far this has been about “skipping in the direction of going easy on the child.” But the same misunderstanding works in the opposite — and more dangerous — direction.
When criminal procedure decides, at the third gate, “no punishment,” that is a cautious conclusion that restrains the power to punish. It is bound by strong constraints: legality, due process, the principle of restraint in punishment.
But school discipline — suspension, expulsion — is not punishment. It is a separate track under the School Education Act. So it need not pass through the criminal gates at all. Just short of the point where the criminal process cautiously stopped, school discipline proceeds freely.
What follows? Without passing through the three steps that criminal justice painstakingly builds, discipline can be triggered by a character assessment — “a habitually badly behaved child.” Where the question ought to be whether this act warrants discipline, the accumulation of everyday problem behavior breeds the prejudgment that “this child deserves to be disciplined,” and it slides all the way to an expulsion that would be excessive for the act taken alone. A child whom the criminal process would stop short of, on grounds of incapacity, is treated more harshly at school precisely on grounds of character.
Two injustices overlap here. First, discipline of the act has been swapped for discipline of the person. Second, it falls on children of exactly the age that most requires procedural protection. On expulsion, the courts have taken a strict stance: as a grave measure directly bearing on a student’s right to receive an education, it is to be limited to cases where no other means can achieve the educational aim. Yet on the ground, schools run on character assessment without borrowing the criminal logic at all.
The same misunderstanding abandons the child who ought to be protected as “having done nothing wrong,” and punishes harshly, on grounds of character, the child who ought not to be punished. It works at both extremes at once.
7. “Not scolding” — another layer
Onto this I want to lay another tendency often seen in recent years: an excessive avoidance of scolding children.
At first glance this looks continuous with the “indulgence” of section 3. But its roots run deeper. To avoid scolding is to abandon the very act of evaluating conduct head-on.
What is scolding, really? Considered calmly, it is a remarkably precise legal operation: to evaluate, individually, that “what you did (the act) was wrong (unlawful),” while at the same time conveying a reservation of blame — “I do not reject you entirely.” It is nothing less than translating the second gate (the fixing of wrongfulness) and the third gate (the judgment of blameworthiness) into terms a child can receive.
A setting that avoids this is left with no language for evaluating conduct. What remains is only the label on the person: “that child is a problem child.” And so, when the moment for discipline arrives, with no yardstick for the gravity of the act, it swings all at once toward suspension or expulsion on accumulated character assessment.
Not scolding and excessive discipline are linked not by opposition but by cause and effect. Because the daily practice of evaluating conduct is never built up, the principle of act-based responsibility hollows out, and in a crisis there is nothing left to lean on but assessment of the person.
8. What makes the front line behave this way
But fairness must be kept. The aversion to scolding, the abandonment of conduct-evaluation, the person-centered discipline in a crisis — none of these can be said to arise spontaneously from frontline negligence. Many are chosen as a defensive reaction against being denounced.
Scold, and “that’s corporal punishment,” “you wounded the child’s heart” spreads on social media, and the press picks it up. Treat the child who caused harm firmly, and that child’s parents protest; fail to fully protect the child who was harmed, and that child’s parents and public opinion string the school up. In a structure where one is denounced whichever way one moves, evaluating conduct head-on — saying outright “this is unlawful” — becomes the single riskiest choice. So the front line avoids evaluation, blurs it, and escapes into formal measures that deflect responsibility. Not scolding may be less a pedagogical conviction than a rational consequence of avoiding a firestorm.
The supervising ministries sit within the same dynamics. They ought, by rights, to set out the framework — “evaluate the act strictly, treat the person with consideration” — and stand as a shield protecting the front line from the unreasonableness of public opinion. But the ministries themselves fear the scrutiny of the Diet, of public opinion, of the media, and avoid setting out clear standards. Issue a standard and responsibility arises, and you become the target of criticism. The result is that what descends to the front line is not principle but only the do-nothing pressure of “don’t cause trouble.” Those who ought to protect, in order not to be hit themselves, leave the front line alone before public opinion.
9. The louder the voice, the thinner the logic
And at the very top of the stream lies an overlooked inversion. Those who understand the three steps least are often those who denounce most fiercely.
Reporting appeals most when it draws an incident as a binary of “an unforgivable aggressor” and “a victim who must be protected.” To this narrative, the law’s two tiers — “unlawful, but cannot be held accountable” — are nothing but an obstacle. So the media extract only the third gate and rage either “how can it be that no charge can be brought?” or, conversely, “don’t treat that child like a criminal.” Both furies, in failing to separate the wrongfulness of the act from the blaming of the person, are the same misunderstanding. The more justice is invoked, the more the logical hierarchy is trampled.
The siloing of the ministries reinforces this. MEXT, which administers education, is not the ministry with jurisdiction over criminal law. So there is no guarantee it can issue guidance that adequately reflects the architecture of criminal doctrine in cases involving children below the age of accountability — knowledge that lies outside its remit. The three steps that the Ministry of Justice and prosecutors take as a matter of course are, for the education administration, a matter outside its jurisdiction, hard to handle with precision.
It is not that inter-ministerial coordination does not exist. The regional support by which juvenile classification homes take in consultations from schools; the placement of “school lawyers”; the system of referral to child guidance centers — the mechanisms are there. But all of that coordination leans toward “psychological support,” “welfare response,” “legal consultation.” Nowhere is there coordination that translates the criminal-law evaluation — “this act is unlawfully established” — into the language of guidance on the ground. It is not the absence of coordination, but that the content of coordination passes right by the one essential point: the evaluation of the act.
Thus the whole picture of the distortion turns inside out. It is the front line, furthest downstream, that has been blamed most — yet what most lacks the logic is, rather, the upstream: the media that denounce in the name of justice, and the education administration that, lacking jurisdiction, cannot handle criminal law with precision. The lack of understanding deepens the further it moves from the front line, the louder the voice grows. And the ill-understanding upstream judges the downstream, itself uncomprehending.
10. It is all one and the same “inversion of order”
So far we have seen layer upon layer: the skipping of logic, the action at both extremes, the aversion to scolding, the gap in teacher training, the external pressure on the front line, the siloing of ministries, the righteous fury of the media.
They converge on a single error. The inversion of order.
The correct order is this. First, evaluate the act. If it fits the definition and is unlawful, fix it as “a wrong.” Only after this fixing does one, at the stage of culpability, take age into consideration — and only further beyond that does educational care ride on top.
Consideration and care alike are stacked upon having fixed the act as “a wrong.” One cannot skip the evaluation of the act and enter care directly. It is no accident that the law’s three steps place the fixing of wrongfulness before the judgment of culpability. To say “cannot be blamed,” one must first presuppose the existence of “a wrong worthy of blame.” Protective measures under the Juvenile Act, the welfare response to children below the age of accountability — all are justified only by taking “an unlawful act has actually occurred” as their point of departure. Care is not a substitute for the fixing of wrongfulness. It comes after it.
Held to this light, the distortion of every layer turns out to be a variation on the same inversion.
The aversion to scolding: an inversion that skips the first step and heads straight for kindness. The “can’t be charged” skip: an inversion that leaps to the conclusion without passing through evaluation of the act. Excessive discipline: an inversion that leaps to a measure on character assessment without passing through evaluation of the act. The media’s fury: an inversion that skips the cool fixing of wrongfulness and leaps straight to condemnation or to defense. Coordination that leans toward welfare and psychology: an inversion that turns the machinery of care without mediating the evaluation “this is unlawful.”
Every one of them skips the first step — the evaluation of the act — and races ahead to consideration, care, or condemnation.
11. This order is the very ideal of the Constitution
Let me press one step further. The “order” just described is not merely a convention of criminal law. It is nothing less than the on-the-ground implementation of what the Constitution promises the individual. At least three articles support this order, each from a different angle.
First, Article 31 — the guarantee of due process. The spirit of this article — that “no one shall be deprived of liberty, nor subjected to any other criminal penalty, except according to procedure established by law” — has been read to reach beyond punishment, to every situation where a disadvantage is imposed on a person. The order of this essay — “evaluate the act correctly, and only then impose a measure” — is due process itself. Excessive discipline that leaps to a measure on the impression of conduct or character runs head-on against the ideal of Article 31. That school discipline does not pass through criminal procedure does not free it from the spirit of due process. If a disadvantage is to be imposed, pass through a proper process keyed to the act — this is the Constitution’s demand.
Second, Article 14 — equality under the law. This cuts twice. To judge by the person rather than the act approaches discriminatory treatment by an attribute: “a badly behaved child.” For the same act to be treated more heavily on grounds of “habitual problem behavior” betrays the premise of evaluating acts equally. And more fundamentally, the principle of act-based responsibility this essay has maintained throughout — that a person is to be evaluated by what they did, not by who they are — is the very core that Article 14 derives from respect for the individual. The slide into character assessment is an erosion of the principle of equality itself.
Third, Article 18 — freedom from bondage and from involuntary servitude. This article, which seems remote from our theme, in fact has deep reach. For it is a fundamental prohibition against treating a person not as a “personhood” but as an “object to be processed.” To discipline and exclude a child by the label on the person, without evaluating the act, approaches an abandonment of treating that child as a single personhood. The aversion to scolding — to evaluating the act individually while not rejecting the person entirely — is, turned around, nothing but sparing oneself the labor of confronting the child squarely as a person. The dignity of personhood that Article 18 protects becomes the constitutional ground for the two-tiered structure: “evaluate the act, but treat the person with consideration.”
The single line running through all three articles is one principle flowing from respect for the individual (Article 13): a person is evaluated by their act, yet treated as a personhood. Article 31 carries the procedural aspect, Article 14 the aspect of equality, Article 18 the aspect of dignity. What this essay has drawn as the three steps of criminal-law doctrine turns out to be, in fact, a device that gives concrete form to these constitutional ideals in the criminal setting.
If so, the inversion that skips evaluation of the act is not merely an error in criminal-law logic. It simultaneously hollows out three ideals the Constitution guarantees the individual: due process, equal evaluation, and dignity as a person. The distortion in our schools is also a retreat of constitutional value on the ground.
12. To make kindness work as it should
Do not misunderstand. There is nothing wrong with care itself. It is only that the order is reversed.
Care given without first fixing the act as “a wrong” leaves the child with the mistaken message that “what I did wasn’t wrong.” It leaves the victim with the injustice that “the act itself was made light of.” Kindness ends up wounding both.
So this is not a call to punish anyone. Quite the reverse. Evaluating the act correctly and treating the person with consideration are not opposed. Without the former, the latter cannot stand. Kindness is not a substitute for strict evaluation of the act; it is what ought to come after it.
The three-step logic that lawyers take as a matter of course — “look at the act strictly, but treat the person with consideration” — is rooted neither in our training, nor our administration, nor our reporting, nor our own intuitions, to anything like the degree it should be. The whole of that absence quietly goes on distorting our judgments about children.
To be kind to a child, first acknowledge, head-on, that “that was a wrong.” Restore the order. What saves kindness is, as it happens, this order that looks so cold. And that order is also the one and only path by which the proper evaluation, the equality, and the dignity of personhood that the Constitution promises to each and every child are realized on the ground.