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A Culture of Harmony:
Exploring Japan’s Low Litigation Rate
Jacob Schale
Academic affiliation: Oklahoma State University
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Goodman, Carl F. “The Somewhat Less Reluctant Litigant: Japan’s Changing View Towards Civil Litigation.” Law and Policy in International Business 32.4 (2001): 769-810. Goodman compares litigation rates of Japan and America by defining the social objectives behind both legal systems. In America, politicians seek to avoid accountability for decisions and leave lawmaking up to citizens through the court system. In Japan, politicians rely on bureaucracy to establish laws and enforce legal norms. Inefficient remedies, prohibitive lawyer fees, lack of a jury system, and a shortage of judges are factors that discourage litigation in Japan. Further, the Japanese more routinely negotiate rather than sue because the concept of punitive damages does not exist. Goodman describes recent changes in Japanese law that are removing some of these restraints. Legal scholars could gain a better perspective of law from this comparison with American courts.

Haley, John O. “Apology and Pardon.” The American Behavioral Scientist 41.6 (1998): 842-67. Haley investigates certain elements of Japanese culture that may have contributed to the country’s success in reducing crime rates since World War II. The research into the importance of apology and repentance in Japanese culture would be invaluable to those comparing world legal cultures. These concepts are also present in American culture, but to a different degree. Moreover, by considering Japan as an example, the United States can learn to incorporate these ideas into American criminal justice. Haley also looks at the role that law enforcement authorities play in a society by comparing those of the United States and Japan. Anyone interested in how a legal system shapes a culture would find this article compelling. Legal scholars and behavioral scientists may find this article thought provoking as well.

Johnson, David T. “American Law in Japanese Perspective.” Law & Social Inquiry 28.3 (2003): 771-98. Legal systems can be analyzed based on style of decision making and the organization of authority. David T. Johnson breaks his analysis down to the three areas of criminal, civil, and social justice. Johnson mentions scholars of American law, particularly Robert A. Kagan, who have analyzed America’s system of adversarial legalism. Kagan cites examples of how the American legal system has failed. In addition, Kagan describes adversarial legalism as arising from America’s demand for total justice and its fragmented government. Through comparisons with Japan, Johnson counters the position of Kagan with comparisons to the Japanese system to show that the virtues of the American system are too often ignored. Law enthusiasts will find a great guide to the legal aspects of predictability, public participation, politicization, and plea bargaining in this article.

Kidder, Robert L., and John A. Hostetler. “Managing Ideologies: Harmony as Ideology in Amish and Japanese Societies.” Law & Society Review 24.4 (1990): 895-922. Research of the Amish and of the Japanese has revealed similarity in ideology and practice. In both societies, an anti-law ideology of harmony and consensus is promoted by elites. Important aspects of this ideology of informal dispute resolution are routinely misunderstood. One belief about Japanese legal culture is that legal institutions are largely unneeded in Japan. Further, the Amish are often mistakenly grouped together with other conservative Christians. Although obvious differences exist between these groups, both seek to avoid adjudication and development of rights consciousness. Kidder and Hostetler provide excellent descriptions of how the Amish work out their differences with outsiders. Examples of the Amish negotiating the military draft, Social Security, and teacher certification could prove useful to anyone researching these cultures in a sociological or legal context. In both cases, preservation of community is the primary goal.

Miwa, Yoshiro, and J. Mark Ramseyer. “Capitalist Politicians, Socialist Bureaucrats? Legends of Government Planning from Japan.” Antitrust Bulletin 48.3 (2003): 595-627. Miwa and Ramseyer detail how Japan’s post World War II industrial policy has not been directed by bureaucracy. In fact, their claim is that no industrial policy was devised and that businesses regularly and successfully rose against the advice of the bureaucracy. Students of Japanese business would find that most research assumes the Ministry of International Trade and Industry (MITI) used its power to threaten uncooperative businesses. Scholars continually perpetuate this view of Japanese policy based on a few key analytical works from authors such as Frank Upham. As the most successful steel producer, Sumitomo Metals did not conform to the wishes of other major steel producers who, along with MITI, pushed for price controls. Miwa and Ramseyer cite Sumitomo’s refusal to reduce steel production to prove that MITI had no legal power over industrial policy. With no legal authority to enforce cooperation, business serves its own interests.

Miyazawa, Setsuo. “Taking Kawashima Seriously: A Review of Japanese Research on Japanese Legal Consciousness and Disputing Behavior.” Law & Society Review 21.2 (1987): 219-42. Miyazawa supports and expands Kawashima’s concept of legal consciousness as a cultural factor. Studies of Japanese culture are examined on the individual level to explain the connection between attitude, regional culture, and disputing behavior. Miyazawa suggests that to accurately assess these connections, a large-scale study must be undertaken in order to separate behavioral patterns from previously ambiguous data. Through extensive surveys, he learns that the number of attorneys in Japan is inversely related to certain types of litigation. This very in-depth article adds weight to an argument that is often difficult to substantiate. Scholars with an interest in opinions supported with research will find a great deal of information in this article.

Ramseyer, J. Mark, and Eric B. Rasmusen. “Why Are Japanese Judges So Conservative in Politically Charged Cases?” The American Political Science Review 95.2 (2001): 331-44. Ramseyer and Rasmusen use statistical data and mathematical formulas to test whether Japanese politicians indirectly influence judges. They describe the Japanese court system and why it may not be independent from politics as the Japanese Constitution sets forth. Courts will be less independent if the majority party can expect to continue winning elections. The authors examine three types of rulings: the constitutionality of the military, vote apportionment, and injunctions against the government. Judges who go against wishes of the ruling party in politically volatile cases pay a career penalty. Penalties include transfer to an undesirable location and denial of pay increases. Lawyers looking for a focused study of judicial independence in Japan will find this article worthy of evaluation.

Tanaka, Hideo, and Akio Takeuchi. “The Role of Private Persons in the Enforcement of Law.” The Japanese Legal System: Introductory Cases and Materials. Ed. Hideo Tanaka. Tokyo: U of Tokyo P, 1976. 331-52. Tanaka and Takeuchi evaluate the structure of Japan’s legal system to explain its development. They point out that law is a social device for achieving goals. Governmental agencies have a predominant role in law enforcement and social control. The authors advocate more private initiative to enforce laws. Lawyers should create incentives to go to court and barriers should be removed. Public agencies are not equipped to collect court claims. The Japanese Antimonopoly Act requires government approval before a case can be brought to action. Private persons should serve as the vehicle for enforcing statutes side by side with government. People seeking a guide to individual rights in Japan can find a clear, easy to understand summary within this article.

Upham, Frank K. “Weak Legal Consciousness as Invented Tradition.” Mirror of Modernity: Invented Traditions of Modern Japan. Ed. Stephen Vlastos. Berkeley: U of California P, 1998. 48-64. Historians and law students may learn from this writing that litigation has been part of Japan’s social behavior for centuries. From the 1800’s through post World War II Japan, there are documented cases of small farmers going to court. Despite this fact, official action to suppress litigation has been standard practice in Japan. Upham claims that culture and politics are intertwined. Because political elites have promoted certain legal procedures and abandoned others, the Japanese have a low litigation rate today. The post-war Constitution of Japan prohibits compulsory conciliation, so the government offers free mediation services as alternatives to formal disputes. What appears to be Confucian harmony is actually a pattern of court avoidance engineered throughout history to preserve harmony. Casual readers may find the historical background of this text surprising and enlightening.

Yoshida, Masayuki. “The Reluctant Japanese Litigant: A ‘New’ Assessment.” Electronic Journal of Contemporary Japanese Studies 13 Oct. 2003. 26 Sept. 2004 <http://www.japanesestudies.org.uk/discussionpapers/Yoshida.html>. There are two viewpoints that try to explain why civil litigation in Japan is not frequently resorted to as a means to settle disputes. One view is that the Japanese do not have a conception of relationships and transactions in terms of legally enforceable rights. The other view claims that the reluctant Japanese litigant is a myth, and that the true reason for this lack of litigation is a lack of legal machinery such as the shortage of lawyers. Yoshida explains the concepts of duty and obligation in Japan in relation to litigation. Key scholars in the fields of law are critiqued based on the legitimacy of their research. This essay is useful for those interested in the legal practices of Japan. Those mildly interested in the way cultural norms define and interact with the law will also find this work useful.

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