Nina C. Ayoub
Law in Everyday Japan: Sex, Sumo, Suicide, and Statutesby Mark D. West
Lawsuits are rare events in most people's lives. High-stakes cases are even less commonplace. Why is it, then, that scholarship about the Japanese legal system has focused almost exclusively on epic court battles, large-scale social issues, and corporate governance? Mark D. West's Law in Everyday Japan fills a void in our understanding of the relationship/i>
Lawsuits are rare events in most people's lives. High-stakes cases are even less commonplace. Why is it, then, that scholarship about the Japanese legal system has focused almost exclusively on epic court battles, large-scale social issues, and corporate governance? Mark D. West's Law in Everyday Japan fills a void in our understanding of the relationship between law and social life in Japan by shifting the focus to cases more representative of everyday Japanese life.
Compiling case studies based on seven fascinating themes—karaoke-based noise complaints, sumo wrestling, love hotels, post-Kobe earthquake condominium reconstruction, lost-and-found outcomes, working hours, and debt-induced suicide—Law in Everyday Japan offers a vibrant portrait of the way law intermingles with social norms, historically ingrained ideas, and cultural mores in Japan. Each example is informed by extensive fieldwork. West interviews all of the participants-from judges and lawyers to defendants, plaintiffs, and their families-to uncover an everyday Japan where law matters, albeit in very surprising ways.
David T. Johnson
Gary D. Allinson
Robin M. Le Blanc
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Law in Everyday Japan
Sex, Sumo, Suicide, and Statutes
By MARK D. WEST The University of Chicago Press
Copyright © 2005
The University of Chicago
All right reserved.
Chapter One INTRODUCTION
The literature about law in Japan is dominated by studies of broad-based, high-stakes phenomena. At the center of this fetish with the big in Japanese law is a longstanding preoccupation with Japanese litigation rates. Some scholars argue that Japanese culture is responsible for low litigation rates; others argue that institutions and the economic disincentives to sue that they create are the causes. Apart from that debate, much of the remainder of work on Japanese law, both in and outside Japan, is about similarly "big" topics such as corporate law and large-scale social issues.
It is time to move on. Although looking at lawsuits and large-stakes phenomena has enriched our knowledge, it has also created a potentially misleading and irrelevant model of Japanese law. Lawsuits are rare events in most people's lives in Japan as elsewhere, and high-stakes phenomena are by definition not commonplace. Basing our study of law in Japan, and especially of the role of law in Japanese society, on these sorts of events is a bit like assuming that the Super Bowl is played every day.
This book is about the role of law in everyday Japan. It examines the incentives created by law and legal institutions in everyday lives, the ways in which law intermingles with social norms, historically engrained ideas, cultural mores, and phenomena that cannot easily be explained. By examining how these concepts play out in everyday contexts, this book attempts to gain insight into Japanese law as it functions in society, and into Japanese society through a study of its laws.
WHY EVERYDAY JAPAN?
This book is a search for a richer, more resonant account of law through a study of its role in such everyday situations as sex, sumo, and suicide. The study of law in everyday life is not new. True, most legal scholars "generally prefer to pitch their tents in the shadow of the Supreme Court rather than on Main Street," but a fair amount of literature recently has appeared. And at the same time, the study of everyday life in Japan is becoming more prevalent.
What has not yet taken place is an in-depth study of law in everyday Japan. Anecdotal accounts have always been available. In one of my personal favorites, Melvin Belli, in a 1960 book with a foreword by Errol Flynn and Belli's name in the title ("Belli Looks at Life and Law in Japan"), attempted to describe law's role in Japanese everyday life in tales of chivalrous outlaws, illegal lottery tickets, and "mama-san, papa-san, and the geisha girl." That's not quite what I have in mind.
The paucity of analysis is something of a surprise. When I teach Japanese law in the classroom, part of the struggle is to keep the conversation relevant, encouraging students, American and Japanese, to discuss their experiences in Japan without turning the class into one on "the role of law in my homestay experience." Students know, and are eager to talk about, the frustration of dealing with Japanese law on a daily basis. While discussions in my other classes often turn to examples from television movies-of-the-week (criminal law) or the business pages (corporate law), my students of Japanese consistently turn the comparative lens on the everyday.
In this book, I follow my students' lead to examine the role of law in everyday Japan in seven intriguing but ordinary settings: daily occurrences, sports, leisure, housing, sex, work, and the troubling nexus of personal finance and suicide.
I begin in chapter 2 with an analysis of lost-and-found practices. Japan is famous for the willingness of its citizens to return lost items to their rightful owners. What most observers do not realize is that these transactions are governed by recognized, centuries-old legal rules that mesh with norms, institutional structures, and economic incentives. Chapter 3 addresses sports through an analysis of sumo wrestling and the relation between law and norms in this culturally "Japanese" institution. Chapter 4 examines leisure though the lens of karaoke-based noise complaints, focusing on the social and legal reasons why people don't sue. In chapter 5, I look at the role of law in solving disputes about condominium reconstruction before and after the Kobe earthquake of 1995. In chapter 6, I turn to sex and love hotels, exploring the extent to which law and social change account for the popularity and usage patterns of these establishments. Chapter 7 examines the role of law in shaping long working hours in Japan, focusing on the role of working-hour statutes and judicially created rules regarding employee dismissal. Chapter 8 navigates the phenomenon of debt-caused suicide, where the evidence suggests that law is an important part of the mix of factors that lead to certain kinds of suicide.
Two elements unify these topics. First, each is commonplace for many people in Japan. Second, each is seen by many both in and outside Japan to be "Japanese." I regard the latter factor as important not only to hold your interest but also to deflect charges that I have skewed the inquiry toward a U.S. or Western legal tradition by choosing topics that are culturally "non-Japanese" and thus exceptions to our knowledge, or at least to our preconceptions, of Japanese culture.
Still, my topic selection might be criticized in at least two ways. First, a critic might argue that choosing "Japanese" topics marginalizes the inquiry or perhaps even stereotypes Japan. But as more than one scholar has pointed out, study of "the everyday" does the opposite; because the everyday exists everywhere, focusing on it is one way to broaden an otherwise limited analysis of that nation. I have no desire to further the cute, misleading, and sometimes contemptuous coverage of Japan that has plagued accounts by the popular press. My goal is a rigorous analysis of several interesting Japanese phenomena, with the aim of showing the role of law in some ordinary, but perhaps quirky, places. The evidence presented in this book suggests that even the quirkiest of phenomena, and those subject to the usual claims of Japanese exoticism, are not beyond analysis.
Second, a critic might suggest that I focus more on "law" than on "everyday," choosing topics that enable a more rigorous comparative study of legal provisions. Although my first response to such a claim is to note the boredom entailed in such an inquiry, there is more at stake than intellectual hedonism. Especially given the dearth of research on the issue in the Japanese context, I share the view that "scholarship on law in everyday life should abandon the law-first perspective and should proceed, paradoxically, with its eye not on law, but on events or practices that seem, on the face of things, removed from law, or at least not dominated by law at the outset."
For this book, then, I avoid subjects that simply are known spheres of legal regulation, even if those topics are "everyday," so as to avoid painting an unfairly legalistic picture of Japan. I chose topics that sounded interesting and Japanese. I tried to find areas that, at least on the surface, seemed unconnected to the law. In many cases, the evidence that I uncovered for this book-both of law's importance and of its triviality-surprised me, and perhaps it will surprise you as well.
METHODOLOGY AND ARGUMENT
I rely primarily on three sets of analytical tools. First, I assume that institutions, the "rules of the game," matter. I focus not only on law but also on less formal humanly devised behavioral constructs such as social norms.
Second, in each case, my analysis is informed by the basic assumptions of rational choice theory: maximizing behavior, stable preferences, and market equilibria. Although rational choice theory has been extraordinarily useful and robust in the social sciences, these are merely assumptions, and often these assumptions are broken down by something as ordinary as anxiety, fear, joy, or a mistake. I try not to shy away from the areas in which individual behavior may not always comport with the assumptions. In other words, the cases are "problem-driven," not "theory-driven"; they are motivated by my own sheer curiosity, not grand theory. Still, without some model with which to begin, it would be hard to get much of anywhere at all.
Third and finally, I assume that in an exploration of how the world works such as this, empirical analysis, with all its requisite caveats, is more useful than other methods. In a couple of cases, I collected the kind of data that is amenable to statistical analysis, and I use regression and other techniques to develop or test hypotheses. But quantitative analysis alone produces results that are sometimes weak and almost always dry and yeastless. To inform this study, I also rely on evidence gathered from fieldwork. I visited sumo stables to learn about sumo rules, lost objects to learn about the lost-and-found system, visited debt counselors to learn about debt-suicide, toured Kobe condominium rubble to learn about reconstruction, and helped love hotel cleaning staff hunt for semen stains with black lights to learn about the love hotel trade. I did these things not so much to advance some kind of gonzo anthropology as to create opportunities to formulate and ask questions in context. Sometimes I asked questions in formal interview settings, but as these examples suggest, I gathered a lot of information from casual conversations as well.
Interviewing, or for that matter, conversing, is rare in studies of the law, and it was virtually unheard of in studies of Japanese law until very recently. Although I cannot be sure, I believe (and my Japanese colleagues agree) that many respondents were more open to me than they normally would be to fellow Japanese. This book attempts to utilize their candor to present a Japan rarely seen in print.
This combination of techniques is not easy to characterize succinctly. Consider two of the more dominant schools of legal scholarship, "law and economics" and "law and society." Law and economics "tends to focus on market processes, to emphasize efficiency, to assume rational behavior by individuals, and to use formal mathematical models." Law and society "tends to focus more on nonmarket processes, to emphasize norms, to make few simplifying assumptions, and to adopt an empirical approach to understanding social behavior." In this book, I do all of those things: in some cases, I treat individuals as the basic social unit, as does the law-and-economics view, but in others, I look more carefully at how social interaction affects behavior, as in the law-and-society view. I borrow tools from and blur the lines of both schools to create a richer and more accurate portrayal of the available evidence. If that approach does not satisfy purists, so be it.
Harrumph. As much as I'd like to leave it at that, having so boldly thumbed my nose at the purists, the difference is not merely methodological. If one were to read only the culture-and-society literature regarding Japanese law, one would assume that Japanese don't sue because harmony (wa) matters, respect duties but not rights (it's a samurai thing; you wouldn't understand), leave money on the table to keep the peace, and suppress the self for the sake of groups, shame, face, and appearance (tatemae) instead of reality (honne). Japan, like Cleveland, is certainly different, and sometimes these concepts help explain how. But Japan can't be boiled down to a few exotic Japanese keywords that explain everyone's behavior, and attempts to do so often result in beautiful models of circular reasoning.
The picture would be different, but not necessarily better, if one were to read only the economics literature about Japanese law. Were that your library, you would assume that Japanese people make decisions about suing based solely on court costs, expected damages, and attorney fees, they exercise rights with abandon, they bargain ruthlessly, and they always bow to the gods of efficiency, self-interest, cost-benefit, and rationality. As a starting point for analysis, sometimes this approach works well, and in many contexts, the framework produces interesting, often fascinating, results. But this just can't be the whole picture.
I am caricaturing the literature a bit. There are contexts in which one explanation works better than another, and for analytical purposes, it's often better to separate the parts. But when the economics-versus-society exercise is repeated again and again by Japanese and non-Japanese scholars alike, it creates the false impression that Japan is a monocausal, homogeneous exception to the rule that the world is a complicated place.
To be sure, simplicity is often a virtue. I wish that I could distill the entirety of law in everyday Japan to the back of a business card that you could carry in your pocket, ready to impress at your next cocktail party with the announcement that Japan is 67.2 percent economics and 32.7 percent culture, with a 0.1 percent residual. (You'd be the life of the party!) I'm not so virtuous.
At the other extreme, we can't allow ourselves to become mired in the nihilistic carnival of throw-up-your-hands-in-desperation complexity that often threatens to envelop inscrutable Japan. By starting with an assumption of rationality and then exploring critically a few different contexts of everyday Japan, we can derive a few principles, or at least some hints as to how the world works. This approach allows us to examine the really interesting part of the story that has been lost in the dichotomy: the ways in which multiple causes intertwine in tangled, multifaceted ways to produce intriguing and colorful outcomes.
Law, as we shall see, matters in everyday Japan. But how law matters also matters. Beginning with chapter 2, we'll see that law matters in concert with social and other factors, it matters in unexpected ways, and it matters in different ways to different people-even in Japan.
Chapter Two LOST AND FOUND
We begin with an everyday occurrence: losing things. The Japanese system for reuniting owners with their lost possessions is said to be especially efficient. A recent survey of five hundred Tokyo and Osaka "businessmen" found that 41.4 percent had lost something in the past year and on average lost 2.7 items per year. Of the persons surveyed who recovered their lost items, only 22.5 percent found the item on their own; the remaining four-fifths received calls from strangers or found the items at lost-and-found stations. All in all, in 2002, Japanese police received more than ten million items and cash totaling $129 million in voluntary finds from ordinary citizens. Find rates are highly correlated to loss rates, and more than 70 percent of the yen and 30 percent of noncash items are recovered by the original owner.
For readers familiar with Japan, these figures may not be all that surprising. I have heard many a tale of cash, CDs, keys, cameras, briefcases, confidential legal memoranda, and books that reappeared after having been presumed lost forever, as well has a few stories of items that stayed lost (mentioning "lost property," I have learned, is an invitation for anecdotes). "Just think," a well-traveled Japanese friend said to me after recovering his computer in Tokyo, "what would have happened if I had left my laptop on the subway in New York."
Among other tasks, this chapter presents the results of experiments conducted to determine whether my friend actually had a better chance of recovery in Tokyo or New York (the relatively unsurprising answer: Tokyo) and to uncover the reasons why. As for the latter, the focus of this chapter, most accounts attribute Japan's apparent success at lost-and-found to social factors or Japanese ethics. As the Los Angeles Times put it, "Drop something in a public restroom or in a subway corridor in Tokyo and there's a good chance you'll get it back, here in one of the most honest nations on Earth."
Maybe people in Japan are honest and altruistic. I do not argue that they are not, and I happily acknowledge that some of the factors that support honesty appear to be in abundance in Japan. In this chapter, though, my central claim is that the Japanese lost property system works well in large part because of well-designed formal institutions that efficiently allocate and enforce possessory rights. Those formal institutions at least coincide with, perhaps are caused by, and may in addition foster informal institutions, the informal enforcement of which coerces outliers who might not otherwise do the right thing.
Excerpted from Law in Everyday Japan by MARK D. WEST Copyright © 2005 by The University of Chicago. Excerpted by permission.
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Meet the Author
Mark D. West is the Nippon Life Professor of Law and director of the Center for Japanese Studies at the University of Michigan. He is coauthor of Economic Organizations and Corporate Governance in Japan: The Impact of Formal and Informal Rules.
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