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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, and Health 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
p
a
p
erback
ISBN 0-511-03407-5 eBook
Eric A. Feldman 2004
2000
(Adobe Reader)
©
CONTENTS
PrefacePageix
Acknowledgmentsxii
1ReconsideringrightsinJapaneselawandsociety1
2RightsinJapanesehistory16
Therootsof‘‘rights’’16
Rightsbeforekenri:earlyantecedents20
Rights,protest,andrebellioninTokugawaJapan22
TheMovementforFreedomandPopularRights27
Statepowerandthecontrolofrights31
3Patients,rights,andprotestincontemporaryJapan38
‘‘New rights’’ movements and traditional social
protest38
Studyingthe‘‘newrights’’39
Patients’rightsas‘‘newrights’’:conceptualization,
litigation,legislation43
Law,rights,andpolicyincontemporaryJapan:two
narratives50
4AIDSpolicyandthepoliticsofrights53
AIDS,publichealth,andindividualrights53
Anepidemiologicalview55
Hemophiliacsandgaymen:rights,risks,and
repression56
Proposal, debate, and enactment of the AIDS
preventionlaw58
AIDS,activism,andaccommodation72
5Assertingrights,legislatingdeath82
Rights,braindeath,andorgantransplantation82
Death,culture,andbodyparts85
vii
CONTENTS
Scientific, legal, medical, and political attempts to
definedeath92
Power politics and body politics: the Ad-Hoc
Committee for the Study of Brain Death and Organ
Transplantation98
Atentativetruceinthefightoverdeath108
6 Litigationandthecourts:talkingaboutrights110
Rightsandthelegalprocess110
AIDS:crisis,compensation,andthecourts112
Brain death and organ transplantation: accusation
anddiscretion130
7AsociolegalperspectiveonrightsinJapan141
Rights,modernization,andthe‘‘uniqueness’’ofthe
Japaneselegalsystem141
Rightsandthemetaphoroflegaltransplants145
Legalculture,legalinstitutions,andJapaneselaw148
Conclusion163
Notes166
Bibliography198
Index214
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
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