Going to Court to Change Japan Michigan Monograph Series in Japanese Studies Number 77
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Going to Court to Change Japan MICHIGAN MONOGRAPH SERIES IN JAPANESE STUDIES NUMBER 77 CENTER FOR JAPANESE STUDIES THE UNIVERSITY OF MICHIGAN Going to Court to Change Japan Social Movements and the Law in Contemporary Japan EDITED BY PATRICIA G. STEINHOFF CENTER FOR JAPANESE STUDIES THE UNIVERSITY OF MICHIGAN ANN ARBOR 2014 Copyright © 2014 by The Regents of the University of Michigan All rights reserved. Published by the Center for Japanese Studies, The University of Michigan 1007 E. Huron St. Ann Arbor, MI 48104-1690 Library of Congress Cataloging-in-Publication Data Going to court to change Japan : social movements and the law in contemporary Japan / Edited by Patricia G. Steinhoff. p. cm. -- (Michigan monograph series in japanese studies ; no. 77) Includes bibliographical references and index. ISBN 978-1-929280-83-4 (pbk. : alk. paper) -- ISBN 978-1-929280-84-1 (ebook : alk. paper) 1. Law reform--Japan. 2. Law--Social aspects--Japan. 3. Courts--Japan. 4. Procedure (Law)--Japan. 5. Justice, Administration of--Japan. 6. Japan--Social policy. 7. Sociological jurisprudence. I. Steinhoff, Patricia G., 1941- editor. KNX470.G65 2014 340’.30952--dc23 2014032100 This book was set in Times New Roman, with titles in Cambria. This publication meets the ANSI/NISO Standards for Permanence of Paper for Publications and Documents in Libraries and Archives (Z39.48—1992). Printed in the United States of America Contents Preface vii Introduction 1 Patricia G. Steinhoff 1. No Helmets in Court, No T-Shirts on Death Row: New Left 17 Trial Support Groups PATRICIA G. STEINHOFF 2. Karōshi Activism and Recent Trends in Japanese Civil Society: 45 Creating Credible Knowledge and Culture SCOTT NORTH 3. Courting Justice, Contesting “Bureaucratic Informality”: 73 The Sayama Case and the Evolution of Buraku Liberation Politics JOHN H. DAVIS, JR. 4. Becoming Unforgettable: Leveraging Law for Labor 101 in Struggles for Employment Security CHRISTENA TURNER 5. Suing for Redress: Japanese Consumer Organizations and the Courts 129 PATRICIA L. MACLACHLAN 6. No Voice in the Courtroom: Deaf Legal Cases in the 1960s 147 KAREN NAKAMURA 7. Cause Lawyering in Japan: Reflections on the Case Studies and 165 Justice Reform DANIEL H. FOOTE List of Contributors 181 Index 183 v Preface The impetus for this book began a decade ago, with panel presentations at the Association for Asian Studies by graduate students who were studying social movements in Japan that had used lawyers and support groups to make legal chal- lenges. As the publication project took shape, we added scholars who had done research on other interesting cases, and Daniel Foote graciously agreed to reprise his role as panel discussant to provide a legal perspective on the case studies. Alas, it has taken even longer to get this book into print than the usual lengthy gestation period for an edited volume, and the graduate students who listed this forthcoming publication on job applications are now tenured professors. Most of our authors have written elsewhere about their social movement research, but without the central focus on lawyers, support groups, and litigation that character- izes their chapters for this volume. The chapter by Karen Nakamura is a substan- tial revision and rearticulation of chapter 6 of her monograph Deaf in Japan: Sign- ing and the Politics of Identity (Ithaca, NY: Cornell University Press, 2006). Some of the background segments of chapter 1 are adapted from my “Doing the Defen- dant’s Laundry: Support Groups as Social Movement Organizations in Contem- porary Japan,” Japanstudien, Jahrbuch des Deutschen Instituts für Japanstudien 11 (1999). We thank the publishers for permission to use these materials. My introduction provides a basic overview of the Japanese legal system at the time these studies were conducted. Since then the Japanese government has introduced an array of legal changes concerning issues raised in the case studies, which did not affect any of the cases directly. Conversely, some of the creative legal strategies used in these cases may have indirectly affected subsequent legal changes, although of course the Japanese authorities would resist that interpre- tation. Foote’s concluding chapter describes these recent legal reforms and dis- cusses what impact they have had to date. Despite the reforms, social movements today still have to contend with most of the same problems as they use the courts to try to change Japan. My thanks to the anonymous reviewers who provided constructive com- ments, and to Bruce Willoughby for getting it into print at last. I hope this volume vii PREFACE will raise awareness of the many ways that social movements in Japan work with support groups and lawyers to bring about change, and will inspire others to do similar research into other social movements. Patricia Steinhoff August 2014 viii Introduction Patricia G. Steinhoff This book examines the relationship between social movements and the law in bringing about social change in Japan. Six fascinating case studies take us inside social movements that have taken up causes as disparate as death by overwork, the rights of the deaf, access to prisoners on death row, consumer product safety, workers whose companies go bankrupt, and persons convicted of crimes they did not commit. Each chapter chronicles many attempts to bring about change through use of the courts and assesses their frequent failure and occasional suc- cess. Along the way we learn much about how the law operates in Japan as well as how social movements mobilize and innovate to pursue their goals using legal channels. To those unfamiliar with Japan’s judicial system and more familiar with the Anglo-American system, many regular practices of the Japanese judicial system are quite shocking. Japan’s modern system was initially crafted during the Meiji era based on German and French models; hence, it followed the Continental legal tradition to produce comprehensive criminal and civil law codes and codes of procedure that were designed to be administered by elite bureaucrats to protect the interests of the emperor-centered state over its subjects. In contrast, a read- ing of Japan’s current Constitution, enacted during the Allied Occupation, would suggest that contemporary Japanese have the same legal rights and protections as people in countries following the Anglo-American legal system, which is based on the common law tradition of protecting the rights of citizens in relation to the state. In fact, however, when the war ended, most of Japan’s prewar law codes were carried over along with virtually all of the personnel who administered them. Consequently, major aspects of the old system have remained in practice up to the present. For example, the 1922 Code of Criminal Procedure was revised in 1948 in an effort to shift from an inquisitorial system to a more Anglo-American adversary 1 STEINHOFF system, but it remains strongly inquisitorial, with judges and prosecutors far more powerful than defense lawyers (Abe 1957). Foote (2010) argues that the Japanese judiciary has shaped criminal justice policy by interpreting the Constitution and code changes very narrowly in deference to prosecutors, “granting broad authority to the prosecution and limiting rights and protections for suspects and defendants, often in the face of rather explicit language in the Constitution, at times buttressed by even more detailed language in the Code.” Similarly, some changes were made to the Code of Civil Procedure in 1948, also with the purpose of making the adjudication of civil claims more adversarial, but practice quickly reverted back toward the earlier practice of an inquisitorial judge dominating the proceedings. Even today, many civil actions are brought by parties without legal counsel (Taniguchi 2007). Reflecting this elite bureaucratic orientation, Japan did not even have an administrative procedures law until the mid-1990s, despite some earlier attempts to produce one (Uga 2007) The Penal Code of 1907 remained in force with only minor changes until the 1990s, despite several unsuccessful efforts to draft a new one (Matsuo 2007). The Civil Code of 1896 has also remained in force along with the Commercial Code that was partially amended in 1950, and there was little change in the way contracts were written and treated in Japan until well into the 1980s (Uchida and Taylor 2007). Certainly there were specific laws passed over the years, but the ba- sic framework of both civil and criminal law, and the way disputes were resolved and crimes were prosecuted, remained relatively unchanged until reform efforts began to take shape in the 1990s. Although very recent reforms to the judicial system have been enacted that promise to alter some of these practices, they are just coming into effect, and their impact will not be known for some time. The research for the studies in this volume was conducted under the rules and practices that prevailed throughout the postwar period and into the first decade of the twenty-first century. The follow- ing are the distinctive features of the Japanese system as of the period of study, emphasizing those that differ from Anglo-American expectations and practices as they relate to the studies presented here. PROFESSIONAL PERSONNEL: JUDGES, PROSECUTORS, AND LAWYERS The two main types of bureaucratic officials in the prewar Japanese judicial sys- tem, judges and procurators (renamed prosecutors), carried over to the postwar system quite directly. Lawyers had somewhat marginal status and roles in the prewar system but were elevated to formal parity with judges and prosecutors in the deliberate effort to create an adversarial system for postwar Japan. All three receive the same types and levels of training in postwar Japan, and then they move into different types of positions. 2 INTRODUCTION Law is an undergraduate major in Japan, intended to prepare students as gen- eralists to enter the government bureaucracy or private corporations and not to fill positions in the judicial system.