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The Ritual of Rights in Japan demonstrates that rights-based conflict is

central to Japanese legal, political, and social practice. Challenging

cultural stereotypes about harmony and consensus, the author spent

three years in Japan analyzing groundbreaking battles over AIDS policy

and the definition of death. His vivid descriptions of these struggles

supports an innovative conclusion – that Japan is a nation where rights

are potent weapons in battles over politics and policy, asserted by those

seeking both individual remedies and social change.

Eric A. Feldman is Associate Director at the Institute for Law and

Society, New York University. He has been a Fulbright Fellow at the

University of Tokyo, a Robert Wood Johnson Health Policy Research

Scholar at Yale University, and an Abe Fellow at the Institut d’Etudes

Politiques in Paris. He is co-editor of Blood Feuds: AIDS, Blood, and

the Politics of Medical Disaster (Oxford, 1999), and has written for pub￾lications including the Journal of Asian Studies, the Los Angeles Times,

the Hastings Center Report, and Social and Legal Studies.

CAMBRIDGE STUDIES IN LAW AND SOCIETY

Series editors

Chris Arup, Martin Chanock, Pat O’Malley

School of Law and Legal Studies, La Trobe University

Sally Engle Merry, Susan Silbey

Departments of Anthropology and Sociology, Wellesley College

Editorial board

Richard Abel, Harry Arthurs, Sandra Burman, Peter Fitzpatrick, Marc

Galanter, Yash Ghai, Nicola Lacey, Boaventura da Sousa Santos, Sol

Picciotto, Jonathan Simon, Frank Snyder

The broad area of law and society has become a remarkably rich and

dynamic field of study. At the same time, the social sciences have

increasingly engaged with questions of law. In this process, the borders

between legal scholarship and the social, political and cultural sciences

have been transcended, and the result is a time of fundamental re￾thinking both within and about law. In this vital period, Cambridge

Studies in Law and Society provides a significant new book series with

an international focus and a concern with the global transformation

of the legal arena. The series aims to publish the best scholarly work

on legal discourse and practice in social context combining theoretical

insights and empirical research.

THE RITUAL OF RIGHTS

IN JAPAN

Law, Society, andHealth Policy

Eric A. Feldman

Institute for Law and Society

New York University

         

The Pitt Building, Trumpington Street, Cambridge, United Kingdom

  

The Edinburgh Building, Cambridge CB2 2RU, UK

40 West 20th Street, New York, NY 10011-4211, USA

477 Williamstown Road, Port Melbourne, VIC 3207, Australia

Ruiz de Alarcón 13, 28014 Madrid, Spain

Dock House, The Waterfront, Cape Town 8001, South Africa

http://www.cambridge.org

First published in printed format

ISBN 0-521-77040-8 hardback

ISBN 0-521-77964-2 paperback

ISBN 0-511-03407-5 eBook

Eric A. Feldman 2004

2000

(Adobe Reader)

©

CONTENTS

Preface Page ix

Acknowledgments xii

1 Reconsidering rights in Japanese law and society 1

2 Rights in Japanese history 16

The roots of ‘‘rights’’ 16

Rights before kenri: early antecedents 20

Rights, protest, and rebellion in Tokugawa Japan 22

The Movement for Freedom and Popular Rights 27

State power and the control of rights 31

3 Patients, rights, and protest in contemporary Japan 38

‘‘New rights’’ movements and traditional social

protest 38

Studying the ‘‘new rights’’ 39

Patients’ rights as ‘‘new rights’’: conceptualization,

litigation, legislation 43

Law, rights, and policy in contemporary Japan: two

narratives 50

4 AIDS policy and the politics of rights 53

AIDS, public health, and individual rights 53

An epidemiological view 55

Hemophiliacs and gay men: rights, risks, and

repression 56

Proposal, debate, and enactment of the AIDS

prevention law 58

AIDS, activism, and accommodation 72

5 Asserting rights, legislating death 82

Rights, brain death, and organ transplantation 82

Death, culture, and body parts 85

vii

CONTENTS

Scientific, legal, medical, and political attempts to

define death 92

Power politics and body politics: the Ad-Hoc

Committee for the Study of Brain Death and Organ

Transplantation 98

A tentative truce in the fight over death 108

6Litigation and the courts: talking about rights 110

Rights and the legal process 110

AIDS: crisis, compensation, and the courts 112

Brain death and organ transplantation: accusation

and discretion 130

7 A sociolegal perspective on rights in Japan 141

Rights, modernization, and the ‘‘uniqueness’’ of the

Japanese legal system 141

Rights and the metaphor of legal transplants 145

Legal culture, legal institutions, and Japanese law 148

Conclusion 163

Notes 166

Bibliography 198

Index 214

viii

PREFACE

This book began as a study of Japanese public policy, more specifically

the legal, ethical, and political dimensions of health policy debates in

Japan. Having studied medico-legal conflicts in the United States,

and the tensions they generated between public health and individual

rights, state power and personal privacy, medical paternalism and

patients’ rights, I decided to examine how such concerns were

addressed in Japan with regard to AIDS policy and the definition of

death. Would HIV lead to policies of isolation? How would the Minis￾try of Health and Welfare handle reporting requirements, access to

treatment, and anonymous testing? Would hemophiliacs infected with

HIV through the blood supply demand compensation? If so, from

whom, and in what venue? How would the impact of traditional views

of life and death affect the determination and definition of brain

death? What position would the Japan Medical Association take with

regard to organ transplantation, and how would it influence the pro￾cess of legalizing a definition of death and implementing an organ

transplant program? Who would have the power to make decisions

about extracting and implanting organs – doctors, patients, their fam￾ilies, or some combination of these parties?

AIDS and the definition of death were interesting for a variety of

other, more general reasons. First, both issues in Japan had experi￾enced quite different life cycles than they had in the United States.

Whereas the definition of death as brain death in the United States

happened quickly and with minimum controversy, AIDS policy was

a vocal and visceral battle. Quite the opposite appeared to be the case

in Japan; there, it was the definition of death, not AIDS, that was a

major controversy. I was interested in learning why.

Second, both AIDS and death invade personal, private realms of

social life, such as the family, sexuality, and health. Examining how

legal and policy conflicts arose and were resolved with regard to these

issues promised to be revealing of how conflict in less intimate areas

would progress. Third, both AIDS and the definition of death afforded

ix

PREFACE

the opportunity to study Japanese law and legal institutions in a vari￾ety of contexts. These were not cases that played out in isolated

courtrooms. Instead, they both were infused with law on a variety of

levels – courts, legislatures, executive committees, professional codes,

and more general social norms and practices – and thus provided a

rich assortment of approaches to Japanese law well beyond the realm

of litigation.

As I accumulated literature and interviewed participants in the

controversies, I discovered that the Japanese word for ‘‘rights,’’ kenri,

was frequently and widely invoked. Perhaps this should not have been

a surprise; discussion of both AIDS and the definition of death in the

United States had long been framed in the language of rights. But

the literature on Japanese law and policy strongly suggested that rights

in Japan were peripheral, a non-issue in the study of disputes, not

even worth an index entry in a work titled Conflict in Japan (Krauss

et al. 1984).

This disjuncture between empirical, case-based observation and

received wisdom piqued my curiosity; I decided to take a long look at

rights in Japan. Doing so led me to review the writings of Japanese

and Anglo-American historians, and carefully examine their findings

to determine whether the assertion of rights in contemporary health

policy conflicts was a postwar phenomenon or had deeper roots. It

caused me to study the etymology of kenri, a word that was created

by Meiji reformers to translate European codes. It required that I

examine Japanese and Western scholarship on Japan’s legal culture

that has strongly influenced the conventional view of rights in Japan.

And it persuaded me to undertake two analyses of contemporary

policy conflicts, one over the definition of death, the other over

AIDS. The details of the policy conflicts are presented in Chapters 4,

5, and 6, once the necessary historical and legal background is pro￾vided in Chapters 2 and 3. Readers who desire a fuller discussion of

rights in Japan may want to first read Chapter 7, where I focus on

their sociolegal dimensions.

Induction, rather than deduction, is the method I used to study

rights in Japan, but in fact they are closely related. The idea that

research consists of formulating hypotheses on the basis of theoretical

ideas, gathering data, and testing hypotheses has been called ‘‘the

folklore of mainstream social science’’ (Ragin, The Comparative

Method, 1984). In practice, there is an interplay between concepts

and facts, and both develop and confound as a project progresses.

x

PREFACE

Robert Ellickson, in Order Without Law (1991), describes how he

abandoned ‘‘library-based legal scholarship’’ in favor of fieldwork.

Ellickson sought to explore the Coase Theorem by studying cattle

trespass disputes in rural California. ‘‘Although vaguely confident

from the outset that fieldwork in Shasta County would turn out to be

enlightening in one way or another,’’ Ellickson writes, ‘‘I began with

no particular hypotheses in mind.’’ Ellickson concludes that ‘‘[i]n

many contexts, law is not central to the maintenance of social order,’’

despite the assumptions of law and economics, and the perception

that Americans are attuned to formal legal rules. My method is sim￾ilar, but my conclusions are the inverse – that in contrast to the vision

of Japan as having a premodern legal system and no tradition of rights

assertion, many conflicts are pervaded by rights talk and brought to

the courts. In short, this book presents and analyzes a series of obser￾vations and conclusions that contradict the conventional view of

Japanese law and dispute resolution.

xi

ACKNOWLEDGMENTS

When I started to read Japanese texts in preparation for writing this

book, I discovered that I was spending large blocks of time struggling

through difficult academic writings and coming up empty handed.

Why is it, I wondered, that I seem to be reading so much, and learning

so little? I had honed my critical reading skills as a graduate and law

student at the University of California at Berkeley, but suddenly I was

experiencing the frustrations of a first time reader of some types of

philosophy – the kind that make you realize that the deeper meaning

of the words is eluding your grasp.

So I sought the counsel of a friend who had spent many years in

Japan, and asked if he had some suggestions as to how I could be a

better consumer of Japanese scholarship. As he listened to my travails,

he smiled knowingly. Don’t expect the original insights of the author

to be placed prominently on the first page, he told me. Don’t even

look to the conclusion for a summary of the author’s contribution.

Instead, look for the unexpected. A jarring transition, a naked non

sequitur, a confusing connection – those are the signs that an interest￾ing and original thought is on the way.

What he told me has paid dividends, I hope, not only in how I

have approached the written word in Japan, but also how I have

observed social, legal, and political interactions. Meaning resides no

further below the surface in Japan than in any other place I have

spent time; the Japanese ‘‘mask’’ offers no greater disguise than do

those in other cultures. But one must remain attentive to a new range

of sounds and smells, voices and vices, if the goal is to be a sensitive

observer of Japanese life.

I was reminded recently of the importance of a broad scholarly gaze

when I sat in on an undergraduate architecture class at Yale Univer￾sity. In the concluding lecture of the semester, the professor was sum￾ming up the message of his course, and presented two contrasting

images: the pyramids of Egypt and Ise Shrine in Japan. Both were built

xii

ACKNOWLEDGMENTS

for a combination of religious and secular purposes; both represent the

height of creative and aesthetic grace from cultures at a certain point

of maturity. Yet in glorious contrast to the stoney permanence of the

pyramids, the aerial view of Ise Shrine shows two adjacent, mirror￾image sites. From ground level, visitors might feel as if they are within

an enduring, holy monument from Japan’s past. Yet every twenty years

the structures on one site are ripped down, and activity shifts to the

newly built version of this ancient place of worship. It was a stunning

visual demonstration of the deep connection between cultures and

their structures, between the rituals of social and political action and

the institutions through which they are manifested. If my discussion

of the ritual of rights in Japan moves some readers to think about

those connections, the aim of this book will be met.

The debts that I owe – intellectually and more literally – to those

who have contributed to my work on this book feel more like the

enduring pyramids of Egypt than the grassy shrines of Ise. My intellec￾tual debts began with the first audience for this work, the three people

who were on my dissertation committee; Malcolm Feeley, Martin

Shapiro, and Chalmers Johnson. Each of them was generous with

both criticism and praise. Without them, I would not have mustered

the sustained energy needed to finish this project.

At the University of Tokyo, I was hosted by Shibagaki Kazuo at

the Institute of Social Science, and Fujikura Ko¯ichiro and Watanabe

Hiroshi at the Faculty of Law. Their kind and gracious welcome made

my stay in Japan a pleasure in every way. A number of friends and

colleagues have read and/or talked with me about earlier versions of

this book, in whole or part. They are Ronald Bayer, Robert Bullock,

John Campbell, Ikegami Naoki, David Johnson, David Kirp, Kitamura

Yoshinobu, Robert Leflar, Margaret Lock, Theodore Marmor, Ugo

Mattei, Miyazawa Setsuo, David Nelken, Dorothy Nelkin, Nudeshima

Jiro, Mark Ramseyer, Donald Richie, Frank Upham, Wada Mikihiko,

Charles Weathers, David Wolff, Yonemoto Shohei, and two anonym￾ous reviewers at Cambridge University Press. I am grateful to them

all. At New York University’s Institute for Law and Society, I am

fortunate to work with Christine Harrington. She has provided me

with a wonderfully collegial institutional home, and has been unspar￾ing in her willingness to discuss my work and offer her always thought￾ful views. Alexandra Kowalski-Hodges and Tsutsui Yuko have taken

time from their own work and provided me with invaluable research

xiii