The heart of the law
Litigation and politics in Japan
By William Wetherall
A review of
Frank K. Upham
Law and Social Change in Post-war Japan
Cambridge: Harvard University Press, 1987
x, 269 pages, hardcover
Versions of this article appeared as
"The Heart of the Law" in
Mainichi Daily News, 24 April 1988, page 9, and as
"See you in Court" in
Far Eastern Economic Review, 142(50), 15 December 1988, pages 93-94
Blue phrases were cut from the FEER version.
Purple phrases were added to the FEER version.
Other phrasing may also differ from the FEER version.
Caution -- The so-called burakumin referred to in this article do not exist.
See Buraku residents under Minorities.
How does law speed or slow social change in Japan? What is the role of the legal system in a society where the ideal of harmony is supposed to minimize conflict and discourage recourse to law as a means of resolving conflict?
Frank K. Upham, a professor of law at Boston College Law School, attempts to dispel this stereotype of Japan in his book Law and Social Change in Postwar Japan. Furthermore, he analyses the legal battles that rage on four broad social fronts in Japan: environmental pollution and related diseases; discrimination against the burakumin (members of former outcaste communities); equal employment opportunity for women and other civil rights issues; and industrial policy.
In Chapter 1, his introduction, Upham discusses two Western models and one Japanese model of law and social change. Central to both of the Western models is "the limited role of the state in litigation." In rule-centered law, the legislature makes the rules but then loses control of their social spread. In court-centered law, the state is only one party in the judicial process.
In the Japanese model, the state -- the "tripartite elite coalition" which consists of "the leaders of the Liberal Democratic Party (LDP), top business management, and elite bureaucrats" -- identifies litigation as "a threat to the political and social status quo." And so "self-interest has led the Japanese elite to take deliberate steps to discourage litigation."
Japan's "skilled and dedicated bureaucracy" is the main vehicle for control over the processes of social conflict and change. Elite bureaucrats may believe that they act out of "a sincere desire to preserve unique cultural values and avoid the economic and social cost of litigation."
But Upham thinks that, while their efforts to control "the pace and course, if not the substance, of social change in Japan" may reduce the amount of litigation, their anti-legalistic measures "have failed to prevent litigation from playing an important social and political role in contemporary Japan."
The impetus for change usually comes from the ruling coalition, as it does in connection with measures concerning burakumin -- Japan's non-ethnic minority group of between 1 and 2 million -- and industrial polices. But at times it comes from social movements outside the coalition, as has happened in the case of employment discrimination and pollution.
Four major pollution cases
Upham focuses on four major pollution suits involving four Japanese corporations -- Showa Denko, Yakkaichi, Toyama, and Chisso -- filed in the late 1960s. In all these cases, rulings were made against both industry and government.
"The movements mobilized by the Big Four cases," Upham writes, "directly challenged not only the limited-access, consensus-based style of the governing elite but also, what is perhaps more important, the self-image of the Japanese as preferring harmony to conflict."
To prevent Japan's fragmented environmental groups from consolidating their action on a nationwide scale, and to prevent their legal and political tactics from spreading to other issues, Upham says "the ruling coalition had to do three things: eliminate the pollution that was the underlying cause of political dissatisfaction, discredit or weaken this new model of social action, and settle the moral accounts unbalanced by the actions of business and government in the course of the Pollution episode."
The bureaucracy regained control by inviting citizen participation in environmental impact assessments that work much differently from their US counterparts.
In the United States, assessment guidelines and criteria are legally enforceable in court because they are mandated by statute. In Japan, each ministry develops its own in coordination with the Environment Agency, and whether an agency or company complies is not subject to judicial review.
"In this sense they (Japan's environmental impact assessments) remain legally informal -- legal non-events that do not increase the possibility of judicial intervention or ministerial loss of control."
However, as Upham points out, the bureaucracy's success in keeping assessment outside the realm of legal review does not mean that its guidelines are meaningless, or that the coalition has complete control in development planning. His observation that "local opposition can still force delay or cancellation of a particular project" is substantiated by news reports of citizen groups against everything from airports and housing projects to biotech labs and crematoriums.
Buraku Liberation League
In the third chapter, Upham explains why the Buraku Liberation League (BLL) prefers "denunciation" (kyudan) to litigation. Denunciation tactics call for direct confrontation of people accused of discrimination against the burakumin, either by using verbal threats or, in some case, intimidation, such a shoving and other forms of physical violence, rather than litigation.
The BLL resorts to denunciation because it does not trust the courts. This attitude delights the ruling coalition, for "as long as the BLL is directing its energy and protest against the bureaucracy through denunciation rather than against basis public and private policies" through the courts, the government can be sure of continued control over the pace and nature of the movement."
The bureaucracy further co-opts the BLL by allowing it to help administer welfare programs in "integration" (dowa) neighborhoods that it controls, and by exploiting its ideological split with the Japanese Communist Party (JCP).
This attitude appears to satisfy Japan's bureaucracy, while also allowing the BLL to help administer welfare programmes in so-called integration neighborhoods it controls. "The result is that the BLL becomes the only channel for benefits; without BLL certification of status [for burakumin], no application to the government bureau is considered complete."
Apparently this leads to abuse in the form of discrimination against majority Japanese (non-burakumin) who live in the neighborhoods, and against burakumin who are sympathetic with the JCP.
Chapters on equal opportunity employment for women and on industrial policy provide similar insights into the political and legal convolutions of social conflict and change in Japan.
In providing a perspective on Japanese law, Upham concludes that while the Japanese legal system appears to function "on the basis of harmony, consensus, and compromise rather than legally binding rights and duties, it is also vulnerable to exploitation by the bureaucracy, industrialists, and LDP politicians.
Upham believes that, at a time when "values of community and social responsibility seem particularly devalued" in the United States, there is no doubt a great deal that Americans "can and should learn from Japanese visions of justice and society. But, he warns, Americans must ask themselves whether and to what extent they want "to move toward a legal culture where the minister of justice, when asked why he opposed legislation to make buraku discrimination illegal, responded that 'discrimination is a matter of the heart, not the law.'"