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Culture Differences: Exploring Japan’s Low Litigation Rate
Jacob Schale
Academic affiliation: Oklahoma State University
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Disputes have arisen among citizens since the existence of societies. These disputes had to be dealt with in some manner, and in the interest of social order, governing bodies inevitably devised means of resolving these disputes. These legal systems reflect the values and beliefs of the cultures they are created to serve. Research from both behavioral scholars and legal analysts provides an ongoing discussion about what guides Japanese behavior in cases of dispute. Japan has a documented history of formal law in which citizens litigate to address their grievances when resolution cannot be found another way. Japan was forced by the United States to adopt its current Constitution after World War II. Japan now has a system of code law, similar to that of Germany and other European nations, in which bureaucracy plays a primary role in shaping law. The Japanese still maintain comparatively low crime and litigation rates in spite of their Western legal system. The adoption of Western law by the Japanese has prompted scholars to evaluate what cultural elements, such as apology and pardon, give rise to this unique development. The purpose of this essay is to examine Japan’s low litigation rates and to explain the process of interaction between legal systems and cultural behavior.

There are two basic viewpoints that scholars compare to initiate discussion about civil litigation in Japan. Professor Takeyoshi Kawashima claims that the Japanese “lack a ‘legal consciousness,’ and do not conceive of or define their relationships and transactions in terms of legally enforceable rights” (Yoshida 1). Kawashima views early Japan as a pre-modern society and correctly predicted that as modernization came about, so would an increase in lawsuits. John O. Haley believes that the reluctant Japanese litigant is a myth, and that the major cause of limited litigation is the lack of legal machinery. He lists a shortage of lawyers, judges, and expensive court processes as reasons why informal settlement is often the more practical approach to settling differences. However, Haley points out that the value of apology and pardon in Japan is high and has an impact on the system (855). Much discretion is given to law enforcement officials as to what crimes are punished. Whether the accused offers an apology becomes a deciding factor in determining whether going to court is necessary. Apology is sometimes more important to victims of crimes than receiving rewards for damages. Despite the different perspectives, supporters of both views agree that the culture and the legal system impact each other.

Japan’s low litigation rate has a connection to the low crime rate. Haley lists differences between the United States and Japan including: “social cohesion, ethnic homogeneity, family stability, and respect for authority” (849). Not only is the crime rate lower, but compared to other industrial nations that share many of these attributes, Japan’s crime rate is decreasing where other country’s crime rates have steadily increased. This reduction in crime rate is the key point that Haley makes. Setsuo Miyazawa studies these cultural anomalies from a behavioral perspective. Miyazawa, supports the Kawashima view by exploring legal consciousness with respect to individual attitudes and behavior. Miyazawa suggests using surveys to make a connection between individual and cultural behavior that is often missed: “What we need is research that does not explain away Japan by attributing every finding to ‘Japanese uniqueness’ but instead applies theories and methods that treat Japan as a point on a universal continuum” (239). So far, useful data has been difficult to obtain. Most studies show when mediation was chosen, but not why. A lack of reliable studies has led critics to continue questioning the role that culture plays when individuals decide to go to court.

Although Haley is credited with launching the first criticism of the accepted Kawashima view, he is also criticized for missing the deeper meaning that drives Kawashima’s thesis. Yoshida summarizes Haley’s argument: “Rather than being unaware of legal means for remedies, Japanese would-be litigants are only too aware that litigation is unlikely to lead to a beneficial outcome, i.e. they know it will not ‘pay’ to sue” (2). Miyazawa responds by clarifying the Kawashima view: “Kawashima was discussing a general framework for perceiving and evaluating social relationships, not attitudes about a concrete system of positive law” (222). Where these two arguments miss each other, Miyazawa finds common ground between them stating that “nonlitigiousness may be a dependent variable of Japanese legal conception, but it is not Japanese legal conception itself” (223). The traditional culture and beliefs of Japanese may keep them out of court, but staying out of court is not a core belief.

While scholars agree that the Japanese are reluctant to litigate, they disagree about what constitutes an appropriate amount of litigation. Carl F. Goodman questions whether comparison to American litigation rates is an accurate one and proposes that “in order to determine if a society is overly litigious, it is necessary to first explore the purpose of its litigation system” (770). The Japanese legal system differs from the American one in several respects. Due to restrictions of the number of lawyers, it is much more difficult for a person to become a lawyer in Japan. Further, most students in four-year law schools have no intention of becoming lawyers because the required exam sifts out only the very best. Out of roughly thirty thousand who take the exam each year, only about three percent will pass. Those that pass are the only ones allowed to serve in the court room and appear in front of a judge. These lawyers only serve a few specific functions in court. This opening leaves room for non-licensed law graduates to fill the role of almost every other job in the legal field. These jobs tend to be focused on document production and contracts; functions which are served by lawyers in the United States. Because of the scrutiny applied to chosen candidates and the rigorous training they must undergo, lawyers in Japan are remarkably similar to one another. Prosecutors, defendants, and judges are all chosen from the same pool of candidates. This homogeneity within the legal system leads to a shared idea of justice and predictable outcomes in which judges overwhelmingly favor the prosecution. When the outcome is known, negotiation is more likely to occur. Related to the issue of lawyer predictability, J. Mark Ramseyer and Eric B. Rasmusen have analyzed what makes judges so conservative when it comes to politically charged cases: “We have found that judges who write administrative law opinions that are reversed receive worse transfers, as do those who acquit criminal defendants on formalistic grounds” (331). Judges are regularly encouraged in this manner to base their decisions on their societal impact rather than sticking to the explicit letter of the law. Ramseyer and Rasmusen do not discredit the behavioral approach of Miyazawa as much as verify that behavior can be directed from above by judges who are directly accountable to a powerful bureaucracy. The view is that the cultural factors that lead people to stay out of court are manipulated on purpose to maintain the appearance of harmony. Whatever the cause, this sense of harmony exists and has a profound impact on the social relationships of the Japanese.

Adding to the two factors apology and harmony, the Japanese culture stands out because of its sense of community. There are few societies today which have comparable practices and ideologies. In their studies of the Amish culture, Robert L. Kidder and John A. Hostetler point out the similarities between the Amish and the Japanese: “Both societies maintain public postures of legal informalism, rejecting the use of legal institutions and the encouragement of rights consciousness in favor of responses to conflict which are not rule bound or defined in terms of rights…Indeed, in both societies, the avoidance of public confrontation is taken as an important measure of societal success” (895). Although one is a very modern society and the other is a picture of the past, both operate with an anti-law ideology and consensus mentality. Another similarity is that these ideologies are promoted by elites within the culture. Ramseyer and Rasmusen identified that Japanese judges will not go against government lawmakers when the consequences imply profound cultural change. Kidder and Hostetler confirm this observation: “In a more recent publication, Frank Upham…demonstrates that the postwar, development-minded Japanese government has consistently avoided confrontation in cases where lawsuits threatened to create new, unwanted legal precedents that would be binding on future government action” (900). The culture is preserved by preventing large-scale change in mentality. Frank Upham adds more to the argument that culture and politics are intertwined. He claims that what appears to be Confucian harmony is actually a pattern of court avoidance engineered throughout history to preserve harmony. Upham states that “the expressed rationale for avoiding the legalization of social and political issues in Japan…has been the creation, preservation, or nurturance of particular cultural values. The political decision to limit litigation, in other words, has been justified in cultural terms” (63).

Legal systems can be analyzed based on the style of decision making and the organization of authority. Goodman proposes that researchers should question what amount of litigation is appropriate in America before making comparisons with other countries. Further exploring this idea, David T. Johnson explains how the American and Japanese legal systems differ from one another on a structural level: “There is no doubt that American law is vastly more adversarial and legalistic than law in Japan” (777). The American system emphasizes justice, easy access to the system, and representation by a jury. Johnson names two consequences that distinguish the American system: costliness and legal uncertainty. Johnson states, “Litigant-controlled, formal contestation is complicated, protracted, and above all costly….At the same time, fragmented authority and adversarial advocacy generate legal norms that are complex, malleable, variable, unpredictable, and uncertain” (773). America relies on its citizens to set standards of law in court. American legal scholar Robert A. Kagan argues that America’s demand for total justice and its fragmented government give rise to costliness and unpredictability (Johnson 773). Japan currently has no jury system but may switch to one in the future for cases involving lower level crimes such as theft. Presently, it makes sense to the Japanese that high level cases such as murder would not be decided simply by a jury of citizens with no formal legal training. Even with such a stark contrast in systems, some scholars claim that these differences are minimal. Kidder and Hostetler argue that “new research in both Japan and the United States has led to a view that both popular opinion (especially in Japan) and scholarly writings (e.g. Kawashima, 1963) have exaggerated the differences” (898). Whether the gap is large or small now, the American and Japanese legal systems are tied to their cultures by one constant heading into the future: change.

Works Cited

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.

Haley, John O. “Apology and Pardon.” The American Behavioral Scientist 41.6 (1998): 842-67.

Johnson, David T. “American Law in Japanese Perspective.” Law & Social Inquiry 28.3 (2003): 771-98.

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.

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.

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.

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.

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>.

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