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Japanese will fight for rights

by Florian Coulmas

THE RITUAL OF RIGHTS IN JAPAN: Law, Society, and Health Policy, by Eric A. Feldman. Cambridge University Press, 2000, 219 pp., 14.95 British pounds (paper).

Debunking myths is a noble endeavor, especially for scientists who are in the business of separating fact from fiction. The belief that Eric Feldman here sets out to expose as myth is that Japanese culture is antithetical to the idea of rights.

It is a common perception, in Japan and abroad, that in Japan there is an unwillingness to assert one’s rights, as well as a general reluctance to go to court. This has to do with the ideas of harmony and consensus that are usually used to describe the Japanese social system. The Japanese are averse to litigation and do not think highly of asserting their rights or of those who do. Conflict resolution before the courts is not favorably regarded — or so the standard argument goes.

Feldman’s project is to challenge this view. “Rights-based conflict,” he says, “is not so anomalous in Japan.” This judgment is possible only on a comparative basis; that is, if we have a standard for what is normal. The author’s yardstick is the U.S. legal culture, which is widely perceived to rely heavily on the courts for social and political conflict resolution.

Cultural stereotypes, such as those about harmony and consensus, are grounded in reality one way or another. Japanese social history differs in many ways from that of the West. It would hardly be surprising, therefore, if its legal culture were also different. And there can be little doubt that it is. After all, until Meiji, there was no Japanese term for rights, in the Western sense.

The author briefly reviews Japan’s legal history in pre-modern times, during which justice tended to be viewed as a matter of grace rather than right. However, the focus of this book is on the present, where the assertion of rights is becoming ever more salient.

His particular interest is in two legal controversies that grew out of health problems and progress in medical science: the AIDS epidemic and transplant medicine.

AIDS came to Japan relatively late and was long regarded as a “foreign disease” that attracted little attention. But the need for an AIDS law could no longer be put off when it became clear that a large number of Japan’s hemophiliacs were HIV-positive, having fallen victim to the importation and distribution of tainted blood, and that their misery could perhaps have been prevented by more scrupulous screening on the part of the Ministry of Health and Welfare and the pharmaceutical industry.

In his meticulous reconstruction of the battle over AIDS policy and a suitable law, Feldman demonstrates that the assertion of rights was a major element in the process. Many legal aspects are involved that can be phrased in terms of rights: the right to proper treatment, the right to privacy, the right to compensation for negligence, to name but the most important.

A major theme in what Feldman calls the AIDS narrative has been the tension between individuals and the state, between the personal and the social. While many Japanese lawmakers were inclined to give precedence to the protection of public health over respect for individual rights, the whole debate has come increasingly to resemble that in the United States.

The other debate Feldman examines, the one about brain death and organ transplantation, reveals more evident differences with Western notions. Death, after all, is one of the core issues of any culture. The meaning of death is difficult to ascertain in medical terms, but even more so in cultural terms. The concept of a human being divided into a body and a soul is radically different from one that lacks this typically Western dualism.

It is here that explanations must be sought for the fact that Japan did not readily adopt the notion of brain death and that defining death as brain death remains controversial in Japan.

An unambiguous and generally agreed-on definition of brain death is essential for transplantation medicine. Japan’s first heart transplant was carried out in the absence of such a definition as early as 1968. The knowhow and the technology were available, but society wasn’t ready for it, and to some extent still isn’t.

The controversies surrounding this operation were partly responsible for the fact that an Organ Transplant Act making brain death a legal definition of death was passed only in 1997. Even today there is no general acceptance of brain death as death, and Japan lags far behind Western countries in transplants.

Whether one should talk about “lagging behind” when cultural concepts about human existence are at issue is, of course, a different question. Put differently, it is the question whether the forces of modernization have caused a shift in Japanese legal thinking and behavior so that they conform more to Western ways.

The AIDS controversy suggests that this is so, while the brain-death controversy is less conclusive. Feldman is able to demonstrate with many fascinating details that, contrary to common assumptions, the Japanese both assign rights an important role in their ethics and assert them in many ways. From this, however, it doesn’t necessarily follow that Japan’s legal culture isn’t all that different, after all, and continues to converge with that of the West.

Both of Feldman’s examples are very recent. That a heart has stopped beating is relatively easy to verify. Brain death, in contrast, is a highly complex notion that defies simple comprehension and, therefore, must be given legal definition. The medical and social determinants of AIDS are similarly complicated. Arguably, the multifarious repercussions of these two complexes make legalization inevitable. The question then is whether these cases are really suitable to prove his point.

The fact remains, however, that there is relatively little recourse to courts in Japan. Perhaps this is because of structural conditions that make people reluctant to go to court — perhaps not. Feldman is right to point out that the influence of institutions on culture and vice versa is a chicken-and-egg problem. Both sides must be considered.

His book succeeds in calling into question the simplistic notion that rights have no place in Japanese culture. At the same time, it demonstrates the need for more studies on the interaction of rights and culture in Japan.