Drivers with disabilities in Japan are given special blue-and-white stickers for their cars that allow them to park in convenient places so they don’t have to travel too far across a parking lot to get to their destinations. If you don’t have such a sticker, you could be fined for parking in the same spot.
The sticker is part of an elaborate system that consists of multiple overlapping statutory regimes that define disabilities and clarify the process of certifying those who have them. Those who qualify are given a shōgaisha techō (disability certificate) to help prove their status in various situations. Disability is a component of the holder’s legal identity, showing they are entitled to privileges and benefits that try to counterbalance the disadvantages that come with having a disability.
Not having a legally recognized disability is also a component of identity. For example, you can’t legally park in the aforementioned parking space or take advantage of benefits programs that are intended for those with disabilities. To most people, this form of discrimination is perfectly acceptable.
Identity-based discrimination sounds bad — and sometimes it is — but it is also what a lot of day-to-day law is actually about. Governments implement policies through laws and regulations that distinguish between people (real and corporate) depending on a variety of attributes. Rich people (hopefully) pay more taxes than poor people, children can’t be sent to prison but have to go to school, and so forth.
Many government policies are based on attributes that are often a component of identity, components that aren’t just relevant to the individual, but to the rest of society as they may affect other people or how you interact with various governmental systems (which includes property rights). Common components of your “legal identity” may include your name, gender, age, nationality and place of residence. Think about how often you find yourself writing this sort of information on application forms.
Insofar as it impacts other people, legal identity may also involve familial components. Parents have the authority to represent their children in all sorts of dealings. Married couples may enjoy various tax benefits, and have joint ownership of property as well as liability for debts. The state of being married is also an impediment to marrying other people.
Thanks to the internet, there has been a massive increase in technology-based, largely privatized identity components that are necessary to do things online: user names, passwords, IP addresses, location data or bitcoin keys. Your “digital ID” is how other people (and maybe the occasional robot) decide if and how to interact with you virtually, sometimes in ways that impact you in the real world.
Most people likely associate identity with their sense of self, tied to things such as cultural background, values, likes and dislikes, but your taste in music doesn’t affect other people. Therefore, neither the legal system nor the architecture of the internet really care about it.
The key point is that your identity is, in part, a legal construct precisely because it is potentially relevant to other people. Which brings us to COVID-19.
In Japan and other countries, a common criticism of government responses to the current COVID-19 pandemic has been that not enough testing is being done. On that subject, I express no views. However, those calling for more testing presumably expect something to be done with the results. After all, there will be a lot of data.
There is value in merely possessing statistical data about how many people have been tested, how many of them tested positive, where they live and so on. There is more to think about when we get to who.
What if your COVID-19 test score gets tied to your name and impacts your ability to work, go to school or travel? Could your relationship to the novel coronavirus — tested or not, immune or still susceptible, vaccinated or not — become a component of your identity?
Tests are still unreliable and a vaccine is a thing of the future, yet Chile is already reported to be rolling out an “immunity passport” for those who have recovered from the virus, with Germany currently debating the ethics of a similar move. Some places, including Japan, are also adding contact-tracing apps to their arsenal of countermeasures. Despite numerous unanswered questions about COVID-19 — including whether those who have it and recover become immune — politicians and businesses will be increasingly likely to look to what information is available to provide at least some comfort about an individual’s likely immunity and/or lack of infection. In short, even outdated testing information could become a legal or de facto component of our identities.
Japan’s arsenal of tools for defining and validating various components of legal identity include disability certification, residence registries and the koseki (family registration) system. The maternal health handbooks given to pregnant women are used to keep records of (and prove) her child’s vaccinations after birth.
The country also has a lot of experience in using rules based on physiological components of identity to implement policy, not all of it good. Until 1980, the Civil Code provided that blind, deaf or mute persons could be judicially declared incompetent, and that status be reflected in their family registry, subjecting them to legal impediments on their ability to transact or obtain various licenses or qualifications. Disability-based presumptions of legal incapacity are now gone, having been replaced with the modern system of adult guardianship recorded in a separate registry where it no longer taints family records.
A more shocking example involves Hansen’s disease, otherwise known as leprosy. Starting in the 1930s, Japanese authorities launched an aggressive campaign to eradicate the disease by rounding up those who suffered from it and locking them away in sanitariums. Doctors were required by law to report cases to the authorities, police were involved in roundups and there was even an Orwellian aspect of community-based informing on those thought to carry the disease. Entire families were caught in the net, in part due to fears the disease might be genetic.
Interrupted by World War II, the policy resumed during the Occupation under the new Constitution. In 1953, it was sanitized through a new, more “civilized” Leprosy Prevention Law that nonetheless empowered authorities to force people with the disease to live in isolated facilities, where being listed on a “patient register” became a grimly all-encompassing component of identity. Facility administrators were legally empowered to force inhabitants to work and to administer punishments. Education programs were made available for children. Involuntary sterilization was also part of the program.
Medical treatments for leprosy were developed in the 1940s, and had become much more effective by the 1960s and ’70s. Yet forced isolation of those suffering from the disease continued long after it was unnecessary; the law was not repealed until 1996.
Lawsuits were soon brought by groups of former sanitarium inhabitants against the government. In 2001, the Kumamoto District Court ruled in favor of the plaintiffs, finding constitutional violations so prolonged, obvious and egregious that the government did not even bother with an appeal. Eventually, all three branches of government subsequently apologized to the community of Hansen’s disease sufferers — even the judiciary, which had for decades used “special” closed courtrooms to try them for crimes. Compensation programs exist for those for whom the disease remains a part of their identity, together with the now unlawful discrimination that still accompanies that identity. Other leprosy-related lawsuits were still underway in 2019, keeping the collective memory of what happened alive.
Given that the government was able to deal with a different infectious disease in this manner for decades, it was strange to watch overseas commentators attribute the lack of enforcement tools behind Japan’s COVID-19 approach to the Constitution, when it was simply a matter of the statute in place not being fit for that purpose. Steps such as those taken against Hansen’s disease sufferers probably no longer pass constitutional muster, but if the Diet passed a law authorizing more stringent restraints on liberty than those currently available to address the coronavirus, they would survive constitutional challenges due to the public welfare interest at stake.
Whether Japan should pass such a law is not the issue, nor is its past treatment of people with leprosy. The point is this: Japan may actually be better equipped to think about the ramifications of linking an infectious disease to identity. It arguably has more experience, positive and negative, with the use of comprehensive systems of identification both generally and in the context of disease.
By contrast, a country like the United States may be particularly poorly equipped; “identity” tends there to be conceptualized in personal, subjective terms, the systems by which the components of legal identity are verified are a ramshackle mess of federalism. And the nation lags behind much of the world when it comes to formal legal protections of personal data, particularly outside of the health care context. Getting some Americans to even receive vaccinations, let alone prove them appears to be a struggle.
COVID-19 may have a profound impact on identity, reversing recent trends toward greater protection of sensitive personal data. Whether legal systems can adapt to this new reality will be a thing to watch in the days to come.
Colin P.A. Jones is a professor at Doshisha Law School in Kyoto and primary author of “The Japanese Legal System” and “The Japanese Legal System in a Nutshell” (West Academic Publishing, co-authored with Frank Ravitch). The views expressed are those of the author alone.
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