electronic journal of contemporary japanese studies
Discussion Paper 5 in 2003
The Reluctant Japanese Litigant
A 'New' Assessment
In general there are two competing academic viewpoints that try to explain the fact the civil litigation in Japan is not frequently resorted to as a means to settle a wide variety of disputes. In Japan there appears to be a preference for mediation and conciliation. This is in sharp contrast to how similar disputes might be settled in the United States and elsewhere in the Western world, where some forms of legal proceedings would constitute an initial position. At the risk of an oversimplification, the two schools of thought can be set out as follows:
I shall consider both viewpoints in this essay and suggest neither is entirely correct nor entirely incorrect, rather by adopting a dynamic assessment of the social relationships of would-be litigants and carefully considering the socio-psychological factors which control human interaction in Japanese society, we will be in a better position to understand why a lawsuit in a given situation may or may not be entered.
Haley Argues that Litigation Does Not Pay
In the introduction to his provocative essay "The Myth of the Reluctant Litigant" (ibid.), one of very few studies written by non-Japanese academics, Haley comments:
Haley argues this non-litigious tendency is a "myth". He also argues that the number of new cases filed on a per capita basis in Japan is by no means low and that since Meiji times (1868-1912) the number of civil legal cases is directly related to the numbers of lawyers available; i.e. when there are more lawyers, then there are more lawsuits, and correspondingly when there is a decrease in the number of lawyers, then the number of civil suits also declines (ibid., 372, 381-3). Haley concludes that any reluctance to litigate does not derive from cultural factors, such as the lack of a "legal consciousness" as Kawashima and others have strongly argued, but rather results from a deficient legal structure that obstructs litigation (ibid., 389-90). 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.
Tanaka's Critique of Haley
The Japanese legal academic Professor H. Tanaka (1980, 61-3; see 1985, 285-298) has considered and criticised Haley's work, emphasising five points which he argues Haley has overlooked. First, Tanaka objects to Haley's failure to distinguish his (Tanaka's) views from those of Professors Kawashima and Noda (1976) and other leading academics. Tanaka claims that a lack of "legal consciousness" among Japanese has resulted from the influence of social mechanisms. Conversely Kawashima et al seem inclined to believe in a sort of spiritual "group mind", to which most Japanese are joined and by which all their actions are influenced in a subtle way.
Second, Tanaka argues that Haley has accepted uncritically the numerical data supplied by A. Sarat and B. Grossman (1975, 1,200, 1,208) which purport to present the figures for civil litigation in Japan, yet these lawyers mistakenly include certain statistics of civil or administrative misdemeanour (karyō), which fabricate an exaggerated picture. Consequently Japan is in fact less litigious than Haley supposes.
Third, Tanaka points out that Haley has failed to understand why the number of lawyers fluctuated so widely during the 1930s. Furthermore Tanaka claims Haley is also mistaken in correlating the number of lawyers with the number of civil lawsuits during this period. Haley says:
The growth in the number of lawyers at the beginning of the 1930s was due to the world-wide economic depression concomitant with the fact that all law graduates of Imperial Universities were entitled to register as attorneys. As the depression deepened no Imperial graduates registered and those already registered withdrew because there was no legal work and fees for membership of the bar associations were beyond their means. In addition, the increase in lawsuits at the beginning of the depression, and the fall-off as the depression deepened were caused not by the numbers of lawyers, but by the depression itself. At first creditors sued and later realised that suing was unlikely to lead to a successful outcome as debtors were without monetary resources.
The fourth point of criticism raised by Tanaka is with regard to the question of bond-posting, which Haley considers an important factor inhibiting lawsuits. Haley argues "bond-posting requirements...may place an intolerable burden on the parties seeking relief" and cites Articles 107-117 of the Japanese Code of Civil Procedure (Minji soshōhō) (ibid., 380). However, the cited articles relate to specific situations where the plaintiff does not have a permanent address (jūsho), an office (jimusho) or place of business (eigyōsho), and therefore cannot have the general implication that Haley argues for.
Finally, Haley argues that in Japan there is no power of contempt of court in civil cases. Therefore without the voluntary compliance of parties "a court has no way to enforce its decrees on its own motion" and "instead must rely on procurators to initiate criminal proceedings" under Article 96-2 of the Japanese Penal Code (Keihō) (ibid., 387). Tanaka says that this seems to be a total misunderstanding of available enforcement procedures. For instance, in an action for debt under a judgement or a certificate issued by a notary public (kōshōnin) confirming the liability, execution may be achieved by resort to the civil enforcement courts (Shikkō Saibansho) or through an executor (a kind of bailiff) being enacted in the Law on Civil Enforcement (Minji Shikkōhō) (1980).
Haley's Essay - A Flawed Classic?
It has been necessary to consider Tanaka's criticism of Haley's essay simply to illustrate the fact that in several respects Haley's work is flawed. There are only a limited number of English language sources on this topic and in the view of the American academic Ramseyer (1988, 111), Haley's essay has acquired the status of a "classic". It is easy to imagine that for future research, where original Japanese language materials cannot be looked through, these errors will be accepted and compounded.
Ramseyer has commented that most Japanese academics have chosen to ignore Haley's assertions (ibid., 123): in the words of Tanaka he is suffering from "benign neglect" by the Japanese legal academic establishment (Tanaka 1980, 60). It could be thought that the main reason for this is that Haley failed to consider the effects of Japanese cultural factors and omitted an analysis of Kawashima's Mindset argument. Rather he conceived and investigated relationships only as roles, of the litigant, the lawyer and the judge, and assumed that everyone was inclined to act pragmatically in their own interest. However Japanese academics hold the prevailing opinion that Japanese frequently adopt a course of action harmful to their own interests by their reluctance to litigate. They are thus irrational or anti-pragmatic and this is explicable in terms of the unique culture which has formed in Japan with its stress on "collective harmony" (wa).
Kawashima's Theory of "Legal Consciousness"
Kawashima first advocated his ideas about the Japanese lack of "legal consciousness" about forty years ago. His original theory became accepted as an orthodox view, and was strongly supported for two decades. In the late 1970s however various criticisms (by Japanese academics) started to gain support in repudiating some of Kawashima's claims. Kawashima maintained that his theory was based on Japan as a pre-modern society and that with the development of industrialisation, modernisation, and internationalisation a general consciousness of legal rights would grow, leading to an increase in cases of litigation (1967, 200-3). This anticipation seems to have proved to be correct in terms of the increasing number. As a matter of fact, although the number of newly initiated civil cases in the district courts had widely fluctuated between 50,000 and 100,000 within the post-war twenty year period in which Kawashima continued to claim his "Mindset argument", the number reached 150,000 for the period between 1993 and 1997, and 180,000 between 1998 and 2002 (Shihō Tokei Nenpō 2002). However, it is unclear whether the development of a legal consciousness is a chief factor for the increasing number of cases. It may be helpful to examine Kawashima's claims in greater detail.
Lack of Consciousness of Legal Rights
Kawashima takes as his starting point the argument that Japanese lack any consciousness of legal rights (ibid., 139). To support this he pointed to the fact that Japanese had no term for "legal right", and consequently the term kenri was adopted in the Meiji era (ibid., 16). Kawashima emphasised that a Japanese sense of law centred on the notion of "duty", without any corresponding "right". For example, in labour relationships employees did not regard themselves as workers with the right to claim wages from their employers, but as workers with gratitude towards their employers. This is an approximation to the consciousness of tenant farmers to their landowners (ibid., 16-9).
The reference that Kawashima makes to the need for Meiji scholars to adopt in a new term to represent the idea "legal right" may in fact be a red herring. Professor Ohki has pointed out that the mere absence of a word is not conclusive evidence that the idea of legal rights was actually missing from Japanese society (1983, 234). He also highlights that Kawashima is partial in his analysis that the term for "duty" (gimu), also did not exist and was coined at the same time (ibid.). Recently Feldman (2000) examined the debate on the kenri consciousness from an analysis of social and legal phenomena on AIDS and brain death in Japan and refuted the Japanese legal consciousness thesis that, he argued, stands on somewhat easy assumptions.
Without examining the meaning of "rights" in Western European legal systems, Kawashima assumes there is a uniform and coherent concept of rights, one that does not (and could not) accurately describe Japan. If that is so, his argument can be re-conceptualised as saying that there is a concept of rights in Japan different from the concept in the West, and the two must be distinguished (ibid., 154).
In his related essay Feldman recommends an approach that "[w]hen comparing assertions of rights in the United States and Japan, it is necessary to distinguish between rights, rhetoric about rights, and rights rhetoric" (1997, 216). For something to be a right, it should be guaranteed by substantial law endorsed by legal enforcement. He argues that, in both the United States and Japan, "there is much jurisprudential literature on precisely what rights are and how they should best be defined" (ibid.). Rhetoric about rights refers to "the relative importance attributed to rights in a particular society" (ibid.) by members of that society. Rights rhetoric refers to "the politics of rights" relating to "the examination of how rights are used to frame, discuss and debate issues relevant to social policy" (ibid.), for example. Feldman precisely points out that Japanese discussion on rights has not been rightly categorised in that way ever since Kawashima started with the Japanese legal consciousness thesis based on socio-legal analysis (discussion on that is not our purpose in this section).
Ambiguity and the Japanese Language
Kawashima also maintains that in Japan laws are uncertain and the scope of their enforcement is uncertain as well. However either factor is conducive to the establishment of a widely held legal consciousness. He says that this uncertainty is a result of the idiomatic features of the Japanese language and its usage. He then continues to generalise that due to such language characteristics, Japanese are not accustomed to precision, clarity of thought and expression, and that this has inhibited the development of a wide variety of areas which depend upon logical reasoning, including the science of law (1967, 34-8). Kawashima cites a comment by the Japanese novelist Tanizaki, who purports to establish that Japanese and English operate in different ways. This operation renders translation nearly impossible and emphasises why Japanese thought is resistant to logical ideas, such as the idea of individual legal rights. Tanizaki is comparing Arthur Waley's classic translation of the "Tale of Genji" (Genji Monogatari) with the Japanese original:
Tanizaki relies on several pervasive beliefs (in Japan) about the Japanese language, which are based on the social preference for using ellipsis and ambiguous expressions. The idea that using few ambiguous words is in a way "inflexible" is quite pervasive, and a silent man will be respected and an articulate man mistrusted as a result. However, it is important to note that Japanese as a language almost never lacks, either in grammar or vocabulary, the means to be precise, thus forcing it to be ambiguous. Ambiguity arose from a socially enforced idea of what is and what is not polite. Due to the "fog" created by the ambiguous use of language Kawashima concludes that the boundaries of rules in general, and legal rules in particular are invisible to the Japanese, lead to a situation which results in a lack of a legal consciousness.
Are Japan's Laws Ambiguous?
It is necessary to comment on Kawashima's claims that Japan's laws are ambiguously constructed, and that their enforcement is also subject to ambiguity, i.e. enforcement is arbitrary. Kawashima fails to supply any examples to substantiate his thesis of ambiguous legal provisions (1967, 37-43). Statutory codes are not ambiguous or at least not intentionally so. Where some unexpected ambiguity is identified in a court action then amending or adding legislation will usually follow to rid the ambiguity in the same manner evidenced by Western legal systems. On the other hand the case for ambiguity of enforcement is ubiquitously found. For example, although prostitution is illegal in Japan (Law on the Prevention of Prostitution No.118, 1956) there are numerous commercial sex zones which are infrequently prosecuted. Similarly, despite the illegality of most forms of informal gambling more than half the adult male population are engaged in illegally gambling, playing pachinko (a form of pinball) for money without any attempt by the police to intervene. The effect of the authorities turning a blind eye to the reality of the daily breach of various criminal laws is to undermine the idea that laws aim to establish absolute values largely beyond situational modification, and instead leads to a "case by case" or "situational" value system.
Examples of Lack of Legal Consciousness
Kawashima goes into detail on the lack of consciousness of legal rights of profession and of contract, giving a variety of examples (some rather strange) in support of his argument.
Kawashima maintains that in Japan a consciousness of rights of possession or ownership is not well developed. He provides several examples of this. First, he cites the fact that among Middle School students participating in their school memorial trip (shūgaku-ryokō) shoplifting sprees are not uncommon, but are apt to be ignored by being regarded as mere naughtiness (itazura) and are thus generally forgiven. In discussing this phenomenon a distinguished Japanese novelist suggested in a column in a weekly general magazine that "naughtiness" of this kind derives from "innocence" (junsui) and is a natural accompanying matter of such an innocent state (Yamaguchi, 1965, 72-3). Presumably Kawashima mentions this to maintain that both the Middle School students and the adults who forgive their acts of theft as "naughtiness" lack the consciousness to regard shoplifting as criminal conduct (Kawashima, 1967, 75-6). Second, Kawashima argues that the likely reactions to acts of trespasses in Japan would be quite unusual, and that this derives from a lack of a consciousness of the right to exclusive possession of land which is privately owned (ibid., 77-8).
Finally, a related point becomes clear with reference to the widespread practice of providing "side benefits" (yakutoku) in commercial or administrative activities. Such side benefits take the form of a gift in kind or money, or even services provided without charge. Kawashima argues that this custom, which blurs the distinction between personal and corporate property (and in some cases, personal and publicly owned property) arises from a lack of consciousness of this distinction, due to a lack of significance of property rights (ibid., 80-5).
It is suggested that Kawashima may have been carried away in his attempt to support his hypothesis of the lack of a legal consciousness in Japan. In the case of the young shoplifters it seems strange to attribute their behaviour as a form of innocence. A better explanation of their conduct may be that they were fully aware shoplifting was illegal, but were also aware that punishment was most unlikely and were thus persuaded that shoplifting offered some risk-free thrill. Additionally, the failure to overlook trespassers is not unique to Japan, and can be found elsewhere without a corresponding lack of legal consciousness, and may simply reflect the fact that trespassers are not much regarded as hostile beings in Japanese society.
In Japan there is a widespread reluctance to document agreements, which may or may not amount to contracts at law. Verbal agreements are thus pervasive (Fujikura 1989, 203-17). Kawashima argues that this situation derives from a lack of consciousness of contract. Of course Japanese multinational corporations resemble multinationals world-wide in which they fully document their business transactions (Michida 1987). This is perhaps an area where real change has taken place.
Litigation: A Public Challenge
Kawashima argues that substitution of a legal consciousness is a co-operative sense, which is too fragile to stand the pressures of a public disputes such as litigation:
Kawashima does agree that both high costs and lengthy delays are a factor in the reluctance to litigate, but argues strongly that the decisive factor is the lack of a legal consciousness.
Adjudication and Conciliation Procedures
If Kawashima is right and due to cultural factors open conflict in the form of litigation is an unattractive means for the resolution of disputes, we might expect institutions to evolve to provide non-conflict based means for the resolution of disputes such as conciliation etc. and would-be litigants to be urged to use these options. Has this in fact occurred? Yes, it has indeed.
Among the various alternatives to adjudication in Japan, the most formally instituted is chōtei or conciliation proceedings. This is widely available in the district courts, summary courts and family courts. In 2002, out of 822,192 newly initiated civil cases in the summary courts 487,943 cases accepted civil conciliation proceedings or 59.3% of the total (Shihō Tokei Nenpō 2002). This percentage is higher than that of the time when Kawashima claimed his "Mindset argument"— 45.7% in 1965 and 40.8% in 1975. In terms of the relation between the kenri consciousness and chōtei, it would be plausible to say that the then people’s legal consciousness was far higher than that in the present time.
Anyway, the percentage of 59.3 % would seem to indicate either conciliation is preferable to the courts or that some pressure to conciliation is being brought to bear. According to the Law on Civil Conciliation, the aim of conciliation is "to resolve disputes through the mutual concession of the parties, taking into account actual state of affairs and in accordance with reason" (Art. 1). What, therefore, is chōtei like, and how does it achieve the resolution of disputes in Japan? In one of the very few significant texts in English on contemporary Japanese law, Professor Oda explains chōtei as follows:
Kawashima comments on conciliation by reference to kankai, a Meiji period conciliation procedure and the direct predecessor to chōtei. He points out that by utilising this kankai, the authorities coerced disputes into being resolved, of course without stressing rights and duties (in a legal sense), and that after the abolition of kankai (1890) the new conciliation procedure encouraged the maintenance of peaceful relations and represented the role previously performed by powerful persons such as shōya or nanushi (feudal village or district heads) (1967, 167-70). Perhaps because of the last point, the conciliator group exerted authority in dealing with the disputants and in urging mutual concessions. But typically legal positions would be ignored and social harmony (wa) would be stressed. This, Kawashima claims, further contributed to the general lack of a legal consciousness (ibid., 171-8).
The Non-Evolution of Conciliation?
Between the period prior to the Second World War and today, how have conciliation proceedings changed? Kawashima maintains that although methodical reformation under a democratic legal spirit has been enacted, there has been no change in the values and ideas which emphasise a peaceful or harmonious resolution of disputes. He says the shift towards a modern legal consciousness has been ignored in the actual procedures of conciliation. For over ten years after the Second World War even the officials involved were frequently the same persons as those who administered the pre-War version of conciliation. This suggests changes in form did not lead to a change in the legal consciousness of the officials (ibid., 178-82).
Kawashima points out that two Japanese social rules, that of "respectful obedience" (kyōjun) and "authority" (ken-i), are features of most basic business and certain other relationships. Consequently one party to a transaction is usually regarded as the superior party. This does not easily excuse the challenge to such authority implied by attempting to settle any dispute through legal means. If lawsuits are based on the assumption of basic equality before the law, this situation in the hierarchical Japanese society inhibits a legal consciousness.
Some Criticisms of Kawashima
As previously mentioned, Kawashima felt the process of industrialisation and modernisation would inevitably lead to an increasing awareness of legal concepts, such as "rights". This moreover would result in an increase in civil litigation (1967, 202-3). Fortunately, in terms of a meaningful outcome this would seem to be the case at present time.
Yet, are there any indications that an awareness of legal concepts, a legal consciousness, in Japan has been increasing? Yes, there are some (Hironaka 1971, 138). However this is not easy to establish one way or the other. The available data is somewhat inconsistent and has not been systematically analysed. There does seem to be an increase in published accounts of litigation in the media such as newspapers, which in reality suggests that in some situations public disputing is acceptable.
Looking at the figures of new cases for Formal Trial Proceedings (Soshō) (see Table 1 in Haley 1978, 369), Haley concluded that for the periods 1891 to 1941 and 1949 to 1974 there was no discernible trend in litigation, either upwards or downwards (ibid.). What about more recent trends? Figure 1 below suggests from the ups and downs of the number that there are other factors, other than legal consciousness, which have caused the dramatic fluctuation. The reason why the number exceeded 100,000 for the first time in 1982 would not be based on the evolution of the Japanese legal consciousness but on social and institutional factors, for example, that lawsuits over consumer credit dramatically began to increase in the summary courts, and that in 1982 the summary courts had jurisdiction over proceedings where the contested account is less than 900,000 yen.
Therefore such data seem to evince there is little support for the belief that there has been a greater willingness to litigate in the post-war period. Then, does anything else point to a developing legal consciousness in the absence of a simple increase in litigation? Perhaps it is significant that the type of legal action has changed with several newly discernible areas in which there is a growing willingness to challenge and dispute legally, eg. disputes between pupils and their schools, disputes involving environmental pollution, disputes for medical negligence or negligence by drug manufacturers (Hirai 1979, 23-4), and constitutional cases on the controversial Article 9 of the Japanese Constitution and the role of the Japanese flag and national anthem. Do these developments portend a change in the legal consciousness of Japanese? Some commentators think so (Tanaka 1981, 2), while others remain sceptical (Ishida 1976, 139; Watanabe 1984, 39-41).
Although the evolution or the non-evolution of the Japanese legal consciousness would seem not to have conformed to Kawashima's model, it is significant that there are inherent difficulties in accurately measuring such changes. A possibility is that the various studies adopt their own criteria of measurement and thus there is a failure to compare like with like. It would seem that there is an unresolved methodology for the study of the structural reality of a legal consciousness (Rokumoto 1986, 217).
Another criticism is that a variety of elements which generate the characteristics of a legal consciousness have been ignored in Kawashima's evaluation. Few would agree that only cultural elements, such as language or social customs, form the legal consciousness of a given society. Rokumoto argues that in the long run the legal consciousness of a people has gradually been formed and changed through its contact and interaction with the legal system in place (ibid., 218). This would appear to be right. A society and its legal system are in dynamic relationship. Changes in society will influence lawsuits, and the ruling of lawsuits will in turn influence the consciousness of members of society. Such repeated interaction leads to a continuous adjustment and reaction of litigants.
If it is correct to presume that the development of a legal consciousness can lead to improvement by the reform of the judicial administration, then it would prove the development of the idea that the Code of Civil Procedure was significantly reformed for enhancing the availability of courts in 1996 and the new Code introduced a less complicated procedure for claims of 300,000 yen or less in 1998, the procedure which is handled by summary courts.
The Impact of Giri
Despite the rapid change of Japanese life, ideas, and society, the "curious" concept of giri has remained and still strongly governs Japanese social behaviour. To analyse giri Benedict's famous work, The Chrysanthemum and the Sword, might be a useful starting point. Although this book is now a "classic," it has some errors and misunderstandings, such as the confusion of giri with chū (ibid., 137-8); [see for example the comments by Professor Sakurai (1961, 278-82) for a more comprehensive critique]. Thus we have to take care to avoid citing such errors from her work.
The concept of giri is even now accepted as forming an important part of Japanese social relationships, and has been a perpetual theme in a variety of arts, such as the plays of Chikamatsu Monzaemon the Yedo Playwright, in ningyō-jōruri (puppet dramas) and Kabuki. Even modern television soap operas and cinema films use giri themes to draw tears from the audience.
What then is giri? A general definition may be "duty" or "obligation" which arises from a social interaction with another person. But this fails to reveal a wide range of significant nuances. Several scholars have tried to provide a framework for defining giri more completely (Noda 1976, 174-9; Yasuda 1974, 179-85). I shall use their categories to provide a number of examples of giri effects in modern Japanese society, which I hope will render this concept more easily understood.
As giri is dynamic and complex the above examples may overlap, so that giri is raised from a mixture of obstinacy, consideration for others, moral indebtedness, or community obligation, etc.
Some Features of Giri
In a giri relationship there is no explicit request by one party that the
other act under an obligation to do, or refrain from doing, something.
Indeed a large part of giri is for parties so obliged to act in advance of
the need arising to ask for any particular favour etc. However, as giri
conduct does not result from agreement between the affected parties, there
is always an unsettled doubt as to whether what is done is sufficient, which
leads to a feeling of frustration. Giri actions are therefore subjective and
will depend on the sensitivity of the parties involved. In a giri situation
law and morality do not ignore personal considerations, and are not clearly
separated (see Rokumoto 1986, 223-7).
How does giri affect the settlement of disputes? There is a definite effect. In the event that parties under giri should fall into a dispute then they will adopt a conciliatory and flexible concessionaire approach. The presence of giri might be incompatible with the nature of litigation and operate to inhibit a resort to legal resolution of disputes.
In managing disputes where the parties interact under giri there will be an effort to consent and to act spontaneously rather than to force agreement. This has led to a large gap between the expectations of legal codes and the daily reality, which results from numerous compromises based on human relationship considerations (Inako 1981, 131-45). It may seem strange, but in disputes law, lawyers and the courts do not seem to have a primary role and are actively avoided in giri situations. In Japanese disputes there is an emphasis on such mentality as "sincerity" (sei-i) rather than on "rights" in any legal sense (Rokumoto 1986, 228-9).
Another Factor - Sekentei
In studying the question of the apparent reluctance to litigate among Japanese we have looked at Kawashima's ideas of the lack of a legal consciousness, especially the lack of an awareness of legal rights. We have also examined giri, which affects all aspects of Japanese social conduct. It is necessary, however, to look into another concept, that of sekentei, usually translated as "social appearances," but like giri having a number of nuances.
Giri evolved from the business practices of the merchant class (shō or shōnin) and the class of artisans (kō or shokunin) in the Yedo period. Sekentei derived from the warrior class (shi, bushi or samurai) who, perhaps more than anyone, were concerned to maintain "face" — the honour of their name and status among their contemporaries. Despite a great many social changes even since the end of the Second World War, both giri and sekentei continue to exert considerable influence over the Japanese mind and social behaviour.
To understand the concept of sekentei it is again helpful to consider some examples, set against the background of contemporary life. If some of the situations depicted seem unlikely they are however no less real and perhaps might be classified as problems resulting from the transformation of a traditional society into a modern one.
Seken means the community of people with whom we share daily life. Such people might include shopkeepers with whom we chat or say hello to, and our neighbours. The suffix tei refers to "appearances". Therefore, sekentei means how we appear before the people of seken or "social appearances".
From a socio-psychological perspective we can diagram (Figure 2 below) the structure of seken using concentric circles (Inoue 1977, 91). The outermost circle is the world of strangers (tanin or yosono hito, "strangers") to whom we are indifferent and towards whom we feel less sense of shame. The innermost circle is the family and close relations and intimate friendships (miuchi or nakamauchi, "insiders") in which there is generally no need to be modest or to keep up appearances. In between is the realm of seken, and there would seem to be a sub-division in terms of narrow seken, which is the most sensitive group and might include near neighbours, work colleagues and those in authority over you, and the wide seken, which includes anyone else who knows you and who is not in the uchi or narrow seken category.
If Japan is a shame culture, it is shame towards the seken group which controls mind and behaviour and not a general sense of shame. This is a key element of Japanese social behaviour (ibid., 182). The belief that a member of the seken group disapproves of some action of yours is very forceful and can reach levels akin to mental torture, causing very extreme reactions such as suicide.
Haley refers to sekentei as follows:
It would seem that Haley believes sekentei is only operative in special situations involving some particular social prejudice, rather than a general reluctance to do anything which might draw disapproval from the seken group. I would, however, maintain that seken considerations are quite general and operate to preclude lawsuits where a seken factor is involved.
An expression exists which emphasises the role of sekentei, "omotezata ni suru", which means "not to keep secrets within the family". In this expression "secrets" means anything which would provoke shame if revealed to the seken group. Although such ideas are not uniquely Japanese they are, perhaps, a good example of the shame tendency operating in a modern society as if it were still somewhat a feudal community.
In some social phenomena such as divorce, the social factors such as sekentei have influenced the form of proceedings, which is too shameful if it should become known to their seken group. Haley has chosen to gloss over this and largely excludes it from his analysis of the myth of the reluctant Japanese litigant! (see ibid., 369 "with the exception of divorce actions..."). A look at the figures might provide a clue as to why he does not wish to go into this. The numbers in 2001 published by the Ministry of Health, Labour and Welfare showed that Japanese divorces are 91.5% by consent, 7.7% by conciliation and a mere 0.8% by litigation. Furthermore this ratio has remained almost the same for three decades. In comparison with the high rate of litigated divorce actions in the West, the extremely low rate in Japan must be regarded as truly remarkable and somewhat significant. The operation of sekentei in divorce situations is, it should be suggested, the explanation.
Other Reasons For the Reluctance to Sue
Costs of Lawsuits
With the exception of certain tort actions, the general rule is that parties to civil litigation must pay their own legal costs which they cannot recover from the losing party. This must operate as a discouraging measure where the amounts in disputes are less than the costs of a lawsuit.
A contingency fee system has not been adopted in Japanese litigation practice. It is possible to maintain that the legal profession in America "finances" litigation through the contingency fee system, whereas in Japan (and in England and Wales) the litigant must "finance" his/her own litigation expenses. Pre-financing being usual, Japanese lawyers require fees on account in the form of a non-returnable deposit (chakushu-kin).
On the other hand, we should note that systems which enable the winner to recover legal costs from the loser are not free of problems. One of the problems is that a financially powerful party can use the threat of many very expensive lawyers to attempt to coerce a less wealthy party into giving up litigation through fear of having to meet enormous legal costs in the event of losing. Perhaps the contingency fee system encourages litigiousness because it can open litigation as an option to parties who could not otherwise afford it.
Some surveys have monitored the views of those involved in litigation. Those questioned included first litigants and those with experience of more than one lawsuit. When asked to explain why they might be reluctant to litigate, 322 out of a total 324 experienced litigants said "litigation results in monetary loss" and a "strong worry about the high legal costs". To another question "Do you think litigation should be avoided?" 36% of first time litigants said "no" and 55.8% of experienced litigants said "yes" (Sasaki 1967, 123). This suggests that the litigation experience leads to cynicism. In another survey the question "Do you think litigation is a time consuming and costly means to resolve disputes and that even if you win you will regret it from a financial point of view?" drew a 55.8% "yes" response. Although litigation is a major inhibition, the cost of lawyers has led to a significant number of lawyerless cases (21.3% of the total of civil actions in district courts in 2002) and a large percentage (39.8% of that) where only one party is legally represented in court.
A related issue is the question of legal aid. Although the Code of Civil Procedure had no provision for a state funded legal scheme, in October of 2000 the Civil Legal Aid Law took effect for providing services of legal aid by public funds and free legal consultations by legal experts. In 2001, however, legal aid was provided in 29,855 cases, a rise of 48.5% in comparison with the previous year. Whilst the number of applications is on the increase, legal aid in Japan is far from sufficient.
Delay in Court Proceedings
The Japanese court system is notorious for its lengthy delays. Although the big reform of the Code of Civil Procedure in 1996 resulted in enhancing to some extent the efficiency of the procedure, the average length of an action was 20.3 months in contested cases which require the examination of witnesses and the average interval between hearings around 50 days in these cases (Mainichi Shinbun 2001).
One cause of these delays is the shortage of judges (Oda 1999, 76). There are approximately 2,300 judges, excluding summary court judges. In the 1920s there were almost 1,500 judges and since that time the Japanese population has approximately doubled, while the number of corporations has had an "astronomical" rate of progression. A 53% increase in the size of the judiciary is not equal to the task before it, and an expansion in their numbers is clearly necessitated. A civil case held up at the court of first instance for more than fifteen years is not exceptional. In order to obtain judgement in the Supreme Court (the highest judicial forum) it is necessary to be prepared to litigate for half your adult life. For example in the case Hyakurikichi-soshō, which was concerned with a constitutional challenge as to the legality of the Japanese Air Self Defence Forces and their base at Hyakuri, more than thirty years passed between the filing of the action and the eventual rejection by the Supreme Court of the plaintiffs' claims. Everyone who reads a newspaper will be familiar with at least one lengthy legal saga of tremendously patient plaintiffs. This can hardly lead to public confidence in the process of litigation.
The Supreme Court suggests that, if the number of judges increases by 450 in district courts, family courts and appellate courts, the average length of trial at the three kinds of courts will shorten by around a year and the average interval of trial by around a month (Mainichi Shinbun 2001).
The bringing of an action, particularly when unrepresented, imposes enormous mental burdens on plaintiffs (Ryūzaki 1988, 2ff). The atmosphere in a court room serves to coerce litigants: the formal clothing worn by judges, the anachronistic and technical language used in proceedings, and the physical distance created by the design of court rooms where the judge is seated on an elevated platform and so on.
Additionally, as defendants may not appear in person it is not uncommon for plaintiffs, who hoped to argue with the defendant face-to face in court, to feel frustrated and thus to be unable to state their claims in an abstract way. In any action the outcome is usually quite unpredictable and the litigant commonly undergoes huge emotional swings, from hope to despair.
In matters of procedure sometimes judges fail to read the papers which form part of the case. This is especially so if they should have been transferred to the court recently. To gloss over this inadequate approach judgements often do not address the detailed testimony of the parties, dismissing them with the expression "soshin-shigatai" which means that the judge does not find such testimony reliable (no reasons for such a view are given). An action to the Supreme Court seeking to strike down the practice of soshin-shigatai was unsuccessful, see "Judgement, 13th November 1981" (Hanrei Taimuzu 1982, 85). Judicial training has been criticised and it was proposed that judges should attend the Legal Training and Research Institute or anywhere else to improve their abilities (Aoki 1986, 54-5). Many ordinary people consider and feel that judges are remote from ordinary life and lack sympathy and insight into many current social problems (see Kadota 2003).
Problem with Lawyers
In England and Wales there are over 10,000 practising barristers and approximately 85,000 practising solicitors, i.e. 160 practising lawyers pre 100,000 of the population. As of 31st August, 2003 Japan has 19,484 practising lawyers (bengoshi), i.e. 16.0 per 100,000 of the population. Clearly in Japan there is a demonstrable shortage of lawyers as well as a shortage of judges. Haley is absolutely right in saying "the failure of Japan to provide more judges and lawyers has been clearly a matter of governmental policy" (1978, 385).
Japanese law students would be well advised to travel abroad to pursue their legal studies and qualify. In Japan to qualify to practice law, as a lawyer, State prosecutor or judge, it is necessary to pass the National Judicial Examination (Shihō Shiken). This examination is notoriously difficult and moreover, irrespective of the number of examination entrants each year since 1949, and the fact that since 1960 only 500 are allowed to pass each year, the pass rate expressed as a percentage has been steadily falling. In 1949 10.5% of candidates passed, falling to 4.2% in 1960 and to a mere 1.7% in 1975. Although about 1,000 have become allowed to pass each year since 1999, the percentage of candidates passed is still less than 3%, whilst the rate of candidates passing examinations in the United States is approximately 60% in recent years.
In consequence of the difficulty of qualifying as a lawyer it is hardly surprising that most successful candidates pursue law as a commercial activity and try to increase wealth as a primary aim. This leads to involvement in questionable business dealings and various other examples of wrongdoing. Professor Shimojima investigated 56 cases of disciplinary action against lawyers, concluding that most involved a breach of Article 56 of the Law on Attorneys (Law No.205, 1945) "dishonourable conduct or wrongdoing" (1986, 8). A survey conducted by a market research organisation showed that judges were generally regarded as reliable, but lawyers failed as a category to make the top twenty professions ranked by reliability (Nihon Bunka Kaigi 1973). There are recently 60 to 70 disciplinary actions imposed among cases requiring a preliminary examination to the Bar Associations each year.
A further problem is the fact that lawyers are unevenly distributed throughout Japan. In 2002 there were in Tokyo 74 lawyers per 100,000 of the population, while in Osaka there were 30 per 100,000. In other prefectures there are some lawyers in the prefectural capitals where district and appellate courts are located but few lawyers in rural areas. For example, there are only 4 lawyers per 100,000 in Tottori Prefecture.
The Popularity of Conciliation
Conciliation has been more popular than litigation in Japan in most areas. What are the reasons for this? Firstly, the outcome can be achieved by agreement between the parties. Second, the proceedings are in private, unlike many forms of litigation. Third, the format of the proceedings is informal and can take any form agreeable to the parties, in particular legal terms and technical language play no part and lay litigants will feel more comfortable with this procedure. Moreover, conciliation procedures are less costly (see the objections of Koyama 1991, 28) and take less time in a typical case than equivalent litigation (Rokumoto, 1986, 365). Finally, resolving a dispute by agreement in the conciliation process preserves some sense of social harmony, "ignores" rights and duties in deference to the assumption of the lack of a legal consciousness, preserves privacy to avoid problems involved with sekentei, and might be regarded as an easier means to accept from a cultural standpoint all round.
Alternatives to Litigation
Recently certain legal tribunals have been established, which specifically deal with areas which might otherwise result in litigation in the courts. For example, see the Law on the Management of Pollution Disputes (Law No.108, 1970), and the activities of the Centre for the Settlement of Traffic Accident Disputes. There also seems to be an increase in resort to various "extra-legal" solutions to disputes. Japanese organised gangsters, Yakuza, are sometimes hired to press a debtor or act in other kinds of disputes. In this way "compromise" is achieved by threats of violence. Figures drawn from a Police hotline established to advise on business extortion indicated that incidents of "economic violence" numbered 8,900 in 1980, but grew to 20,000 in 1989 (Asahi Shinbun-sha 1991, 37ff). In 2002 the Police Security Consultation nationwide dealt with around 750,000 complaints concerning problems on daily life, commercial business, human relations, etc., although the number of the complaints retained the range of 320,000 and 340,000 each year between 1996 and 1999.
The Vanquished Victor?
A further matter to consider in any reluctance to litigate is the fact that winning a court action may nevertheless lead to frustration. For example, a plaintiff succeeded in establishing his right to drill for hot mineral water, intending to establish a hot spring bath. However, he was ostracised by his neighbours until he gave up his digging (Kawashima et al 1964, 382ff). In another case the parties to a negligence dispute involving the accidental drowning of a child were coerced mainly by their local community until they abandoned their action (Hoshino 1984). And in a case where an office worker successfully sued over a labour dispute, he was ostracised on return to work, such pressure eventually led to his resignation (Watanabe 1989, 48).
Attitudes of the Supreme Court
An analysis of the judgement in many cases of the Supreme Court leads to the conclusion that the court's primary aim is the maintenance of public order rather than the preservation of the fundamental rights of individuals (Satō 1990). There are hardly dissenting opinions in the Judgement of Supreme Court cases, rulings being typically 10 vs. 0 or 5 vs. 0. This reality strongly suggests the absence of an exchange of opinions (Ohno 1966, 5). In this way public confidence in the impartiality and fairness of the highest judiciary has been undermined. Many controversial issues are centred on the post-war "Peace" Constitution of Japan. For example, Article 19 guarantees freedom of thought and conscience and Article 20 guarantees freedom of religion and prohibits religious acts and education by the State. This last provision is especially sensitive as it enshrines the separation of the State and religion. For older generations of Japanese educated under the Imperial Rescript on Education (Kyōiku-chokugo) which identified the Emperor as a living god, this is problematic, sensitive, and emotional. Furthermore in the pre-war system State Shintoism was compulsory and was regarded as the national religion.
As the memory of the War fades there has been a move back to certain ceremonies and practices deriving from Shinto. A typical example regarding this concerned the enthronement of the new Emperor Akihito in 1990 on the demise of his father. The ceremonies which took place as part of the Emperor's public acts had a strong Shinto imprint, and this was not compatible with the Emperor's secular constitutional status as provided for in the Constitution (Oda 1992, 123-4). This resulted in a number of cases being brought to the courts.
On the 24th November 1992 a case brought by a number of plaintiffs seeking to have the enthronement ceremonies declared unconstitutional was dismissed. A leading lawyer for the plaintiffs said of this:
By presenting some information on the peculiar or curious social mechanisms surrounding giri and sekentei, I hope that a case has been made for the need for a dynamic model to consider the reluctance or non-reluctance of Japanese civil litigants. A most important preliminary question in any dispute is what relationship exists between the disputing parties. For example, do they owe each other duties imposed by giri which might serve to override all practical and legal considerations? Alternatively, how will any contemplated litigation impact on the litigant seken group? The question of a legal consciousness, the Mindset argument, or practical considerations over whether it will pay to sue, the Pragmatic argument, should be considered after making such enquiries.
Some of Kawashima's specific examples of the lack of a legal consciousness are now seen as odd or farfetched, especially when the reluctance to sue can be better explained in terms of giri and sekentei. However, despite the errors in his essay Haley's basic claim is right: that the Japanese legal machine inhibits lawsuits rather than facilitates them. Clearly there is a need to both expand the legal profession and the judiciary. As I previously mentioned, nevertheless, the judicial reform has been recently proceeding in Japan. This year (2003) a law on reforming part of the Code of Civil Procedure was established for the purpose of enhancing the efficiency of the procedure and prompting the availability of courts. Next year (2004) many Hōka Daigakuin Daigaku, or Rōsukūru, higher educational institutions which are modelled after American law schools, will be set up for the purpose of increasing the number of lawyers and providing better legal services. If the establishment of such judicial reform is an indication or representative of the development of the law-consciousness, Kawashima’s argument that the Japanese legal consciousness will be greatly evolving from the times when he and Haley were debating would be correct and at the same time Haley’s argument that Japanese can pragmatically deal with their disputes would also be correct.
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Ever since he graduated in Law from Waseda University, Dr Masayuki Yoshida has spent many years devoting himself to writing non-academic books and articles, and editing many magazines, on education, economics, finance, crimes, people, and so on. He also holds a MA degree in socio-legal studies from Sheffield University and has recently completed a PhD in law at the same university. His research interests have ranged widely over bioethics, jurisprudence, sociology, Japanese studies, criminology, and economics. He is now a Tokyo-based independent scholar and freelance academic writer. In the near future he plans to publish books and articles (both in Japanese and English) relating to abortion, the stock market, Japanese capitalism, and Japanese legal systems.
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