Keep distant the hell of accusation
Aug. 21st, 2009 12:43 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
imomusAlan Macfarlane is an anthropology lecturer at Cambridge University who recently published Japan Through the Looking-Glass. Now, I'm often wary of Japanologists, but Macfarlane (I stumbled across his lectures searching YouTube for material about my sociological hero Max Weber) says things which chime with my understanding of Japan's essential difference from the West -- things which I think even long-term Japan-resident foreigners often fail to understand deeply enough (I'm thinking particularly of eager litigant and Click Opera whipping boy Debito). I wanted today just to give you his undergraduate lecture Law and Justice in Japan, followed by my lecture notes.
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Nick's lecture notes
There's no jury service in Japan, though the Japanese are trying to adopt the system. AM considers that attempt a complete disaster, unlikely to be achievable. What the Japanese are setting up is a modified version. Instead of 12 individual humans who make a decision, Japan has the judge sitting with some lay people who are guided by him. [This, by the way, is dealt with in the TV drama Majo Saiban, The Witch Trial notes Nick.]
Western legal concepts have been involuted, convoluted and changed in Japan. Western imports have given Japanese law a surface resemblance to the law of the West (even in courthouse design), but when you look deeper, everything is different.
Absence of Crime: When societies modernize, crime rises. But Japan is a total exception. The crimes rates are low and falling. The murder rates in the US are ten times higher than those in Japan, rape rates fifteen times higher, robbery rates two hundred times higher, theft about six or seven times higher. These are corrected for under-reporting.
Japanese cities are habitable places where one may move about freely at any time of the day or night without feeling any danger.
Guns are involved in only twenty crimes a year in Tokyo. Not bad for a city of 20 million. No hard drug problems. So why?
It's not the harshness of the punishments. Japan's punishments are extremely light. Fines and suspended sentences are preferred. Very few people are sent to prison. Less than 2% of all those convicted of a crime ever serve a prison sentence. In the US that's 45%. Half the prison sentences in Japan are for one year or less (in the US, only 4% of sentences are less than a year). Japanese prisons aren't nice if you do go, though.
Are the Japanese police or prosecutors inefficient? No; they have much better solving rates (57% of reported cases solved) than US prosecutors. The conviction rate of those going to trial is 99% -- they won't send people to trial unless they're 99% certain they can convict.
A wider explanation is ethics. People don't offend because of interpersonal responsibilities. Montesquieu talked of group responsibility in Japan; whole villages were punished for one inhabitant's crime. This has maintained itself to this day; smaller groups still feel the shame if one of their members transgresses; the whole family weeps, takes the blame. A professor is responsible for their students.
A managed society: Japan is a managed society, where everyone manages, polices and surveys everyone else. This is called kanri shakai. You are reflected in the other. This is the opposite of a Western individualistic society. It stops people deviating or committing serious crimes.
There's also a sophisticated system of tracking; koseki registration at the town hall and police provides an ID card system which makes it easy to trace people.
The yakuza: Finally, the yakuza reduces crime rates in Japan. In all advanced societies, much behaviour is in the grey area between legal and illegal; drink, soft drugs, gambling, prostitution. Attempts to police them fail; the police easily get corrupted by the money, become part of that world.
The yakuza is a guild (za), about 500 years old. It began as a guild to control gambling, then drink, then prostitution and other entertainments. The yakuza have always been semi-legal. They're not like the mafia, but a public body with recruiting offices and annual meetings in big hotels. The police provide special car parking for their stretch limos, for instance.
The police have lists of yakuza members. When a crime happens, the mafia may pass on information to the local police to help them solve it.
The yakuza aren't allowed to have guns, and they don't use hard drugs. They aren't nice people -- they can be bullies -- but they do keep crime low.
Some companies use yakuza to sit in on shareholder meetings and look troubled if a shareholder raises a difficult question. In return, the yakuza might be given large holiday homes on nice Japanese beaches. The yakuza own their own legitimate businesses too; travel agencies, hotels. Income tax inspectors go and inspect their books sometimes.
Litigation: Japan is a tribal society rather like one AM studied in the highlands of Nepal. Dishonour is a bigger disincentive than legal punishment. Japan is a very large village in that sense.
Rates of civil litigation -- people suing each other about contracts, debts and so on -- are very, very low. Between one tenth and one twentieth of the rates of litigation seen in Britain or America, and falling. There are fewer lawyers and judges now in Japan, per capita, than there were in the 1920s.
Heads of houses and ruling families strongly discouraged legal redress for centuries. "All quarrels and disputes are strictly forbidden on pain of death". "Never run out of rape seed and never go to law; keep distant the hell of accusation".
There are only a tenth of the number of lawyers and judges in Japan as in the US. Germany has two thirds of Japanese population, and six times the number of judges. Japan was told it needed lawyers, so it set up big law schools training thousands of lawyers each year. But they don't need them, so 90% are failed. They can't get jobs as lawyers, but will be employed as bureaucrats, administrators, etc even after "failing".
In the West people see suing as a binary, competitive system. Someone is wrong, someone is right, your day in court is like a game of tennis, someone loses, someone wins. The alternative view is when you see the point of law as process of reconciliation, to heal wounds and return equilibrium. Stop people breaking off, stop them saying one is right, the other wrong. Rather than a competitive game, you work to harmonize, to adjust unequal statuses. People are not taken to be "equal before the law"; everything is, instead, relative to your status. What is right for an uncle to do is not what's right for a nephew to do, what's right for a man to do is not right for a woman, and so on. This view of law is tribal, non-modern, context-dependent, and Japan falls very much to this side.
The Japanese don't think of people having individual rights; the group is more important. Mediation "is the god of the towns", almost all disputes are settled out of court. The tradition is of didactic or co-erced conciliation -- uncompromising settlements strongly in favour of one party are seen as inimical to group harmony.
Why? Because of the emphasis in Japan on harmony rather than assertiveness.
A Western academic whose son cracked his head on the concrete of a school pool tried to litigate against his own school. Everyone he knew said it was against Japanese culture, he should drop it. He persisted, and basically everyone drifted away from him and he had to leave Japan, possibly also dissolving his marriage to a Japanese woman too.
Nemawashi means root binding that allows you to move a tree somewhere else. It's a principle of corporate restructuring -- you tell people over a long period that change may happen, prepare them, prevent shocks.
Embedding: Japan has an embedded political system, an embedded legal system, an embedded religious system.
Japan has one of the most advanced economies in the world, yet with an astonishingly low level of law suits. We tend to think that law suits and other civil disputes are one of the oiling mechanisms of advanced economies.
Japan is advanced, yet also shamanic and tribal. Why there should be one advanced industrial society on earth which is totally different from every other -- even neighbouring China -- is the mystery behind AM's book, and the final thought in his lecture.
[Error: unknown template video]
Nick's lecture notes
There's no jury service in Japan, though the Japanese are trying to adopt the system. AM considers that attempt a complete disaster, unlikely to be achievable. What the Japanese are setting up is a modified version. Instead of 12 individual humans who make a decision, Japan has the judge sitting with some lay people who are guided by him. [This, by the way, is dealt with in the TV drama Majo Saiban, The Witch Trial notes Nick.]
Western legal concepts have been involuted, convoluted and changed in Japan. Western imports have given Japanese law a surface resemblance to the law of the West (even in courthouse design), but when you look deeper, everything is different.
Absence of Crime: When societies modernize, crime rises. But Japan is a total exception. The crimes rates are low and falling. The murder rates in the US are ten times higher than those in Japan, rape rates fifteen times higher, robbery rates two hundred times higher, theft about six or seven times higher. These are corrected for under-reporting.
Japanese cities are habitable places where one may move about freely at any time of the day or night without feeling any danger.
Guns are involved in only twenty crimes a year in Tokyo. Not bad for a city of 20 million. No hard drug problems. So why?
It's not the harshness of the punishments. Japan's punishments are extremely light. Fines and suspended sentences are preferred. Very few people are sent to prison. Less than 2% of all those convicted of a crime ever serve a prison sentence. In the US that's 45%. Half the prison sentences in Japan are for one year or less (in the US, only 4% of sentences are less than a year). Japanese prisons aren't nice if you do go, though.
Are the Japanese police or prosecutors inefficient? No; they have much better solving rates (57% of reported cases solved) than US prosecutors. The conviction rate of those going to trial is 99% -- they won't send people to trial unless they're 99% certain they can convict.
A wider explanation is ethics. People don't offend because of interpersonal responsibilities. Montesquieu talked of group responsibility in Japan; whole villages were punished for one inhabitant's crime. This has maintained itself to this day; smaller groups still feel the shame if one of their members transgresses; the whole family weeps, takes the blame. A professor is responsible for their students.
A managed society: Japan is a managed society, where everyone manages, polices and surveys everyone else. This is called kanri shakai. You are reflected in the other. This is the opposite of a Western individualistic society. It stops people deviating or committing serious crimes.
There's also a sophisticated system of tracking; koseki registration at the town hall and police provides an ID card system which makes it easy to trace people.
The yakuza: Finally, the yakuza reduces crime rates in Japan. In all advanced societies, much behaviour is in the grey area between legal and illegal; drink, soft drugs, gambling, prostitution. Attempts to police them fail; the police easily get corrupted by the money, become part of that world.
The yakuza is a guild (za), about 500 years old. It began as a guild to control gambling, then drink, then prostitution and other entertainments. The yakuza have always been semi-legal. They're not like the mafia, but a public body with recruiting offices and annual meetings in big hotels. The police provide special car parking for their stretch limos, for instance.
The police have lists of yakuza members. When a crime happens, the mafia may pass on information to the local police to help them solve it.
The yakuza aren't allowed to have guns, and they don't use hard drugs. They aren't nice people -- they can be bullies -- but they do keep crime low.
Some companies use yakuza to sit in on shareholder meetings and look troubled if a shareholder raises a difficult question. In return, the yakuza might be given large holiday homes on nice Japanese beaches. The yakuza own their own legitimate businesses too; travel agencies, hotels. Income tax inspectors go and inspect their books sometimes.
Litigation: Japan is a tribal society rather like one AM studied in the highlands of Nepal. Dishonour is a bigger disincentive than legal punishment. Japan is a very large village in that sense.
Rates of civil litigation -- people suing each other about contracts, debts and so on -- are very, very low. Between one tenth and one twentieth of the rates of litigation seen in Britain or America, and falling. There are fewer lawyers and judges now in Japan, per capita, than there were in the 1920s.
Heads of houses and ruling families strongly discouraged legal redress for centuries. "All quarrels and disputes are strictly forbidden on pain of death". "Never run out of rape seed and never go to law; keep distant the hell of accusation".
There are only a tenth of the number of lawyers and judges in Japan as in the US. Germany has two thirds of Japanese population, and six times the number of judges. Japan was told it needed lawyers, so it set up big law schools training thousands of lawyers each year. But they don't need them, so 90% are failed. They can't get jobs as lawyers, but will be employed as bureaucrats, administrators, etc even after "failing".
In the West people see suing as a binary, competitive system. Someone is wrong, someone is right, your day in court is like a game of tennis, someone loses, someone wins. The alternative view is when you see the point of law as process of reconciliation, to heal wounds and return equilibrium. Stop people breaking off, stop them saying one is right, the other wrong. Rather than a competitive game, you work to harmonize, to adjust unequal statuses. People are not taken to be "equal before the law"; everything is, instead, relative to your status. What is right for an uncle to do is not what's right for a nephew to do, what's right for a man to do is not right for a woman, and so on. This view of law is tribal, non-modern, context-dependent, and Japan falls very much to this side.
The Japanese don't think of people having individual rights; the group is more important. Mediation "is the god of the towns", almost all disputes are settled out of court. The tradition is of didactic or co-erced conciliation -- uncompromising settlements strongly in favour of one party are seen as inimical to group harmony.
Why? Because of the emphasis in Japan on harmony rather than assertiveness.
A Western academic whose son cracked his head on the concrete of a school pool tried to litigate against his own school. Everyone he knew said it was against Japanese culture, he should drop it. He persisted, and basically everyone drifted away from him and he had to leave Japan, possibly also dissolving his marriage to a Japanese woman too.
Nemawashi means root binding that allows you to move a tree somewhere else. It's a principle of corporate restructuring -- you tell people over a long period that change may happen, prepare them, prevent shocks.
Embedding: Japan has an embedded political system, an embedded legal system, an embedded religious system.
Japan has one of the most advanced economies in the world, yet with an astonishingly low level of law suits. We tend to think that law suits and other civil disputes are one of the oiling mechanisms of advanced economies.
Japan is advanced, yet also shamanic and tribal. Why there should be one advanced industrial society on earth which is totally different from every other -- even neighbouring China -- is the mystery behind AM's book, and the final thought in his lecture.
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(no subject)
Date: 2009-08-23 02:40 pm (UTC)(no subject)
Date: 2009-08-23 08:12 pm (UTC)I agree that some commenters above have criticized the Professor for painting too rosy a picture but I think it is a leap to say they want him to "condemn more". I think they just want him to be accurate and his portrayal is manifestly not so. You can still give a description of the Japanese system of justice which would compare it favourably with other systems without bringing in bizarre fantasies about the role organised crime plays in it.
Personally, I think his portrayal is damagingly inaccurate. Not because I want Japan to be painted blackly but because we foster misunderstanding if we treat a country and its people as something it is not. I'm also no advocate for the positive effects of a more litigious society as your excellent commenter krskrft asked earlier. I do, however, recognize that more Japanese, in direct contradiction to Professor Macfarlane's assertion, are happy to consider making "claims" against their neighbours, employers, doctors, schools and are being given the means to do so. I would argue this is a direct consequence of the breakdown of the implicit social contract in Japan as the economy came to a stop.
So this is an important question for you. Your interest in LOHAS and sustainable lifestyles in general suggests that you would be happy if Japan didn't worry about chasing economic growth but found alternative paths to prosper as a society. You also like the idea of group rights and mediation. However, it is lack of economic growth which has called into question the idea of Japan as an egalitarian society where responsibilities are shared. Arguably there is a trade-off here as conflicts will increase when competing groups jockey for their "fair share" of entitlements when the overall pie isn't getting bigger any more.
LOHAS and the like need harmony to work and yet disharmony has been on the uptrend instead in Japan. How would you prefer Japanese society brought that back? If accountability and resolution in the courts isn't the answer, perhaps you go for growth again - but that doesn't advance the LOHAS agenda in the immediate term. Perhaps it's a political solution but that could just as easily be the politics of the right or authoritarianism rather than the colour of government you prefer.
(As a side observation, the high profile action which caused you legal and monetary woes is exactly the kind of case which pops up often in Japan and is frequently won by the plaintiff if no settlement is agreed beforehand.)
(no subject)
Date: 2009-08-23 10:10 pm (UTC)Prof Macfarlane makes the common mistake of counting "lawyers" when many legal disputes do not involve a "bengoshi" (lawyer) but do involve qualified professionals acting in what we would understand as the capacity of a lawyer.
But isn't that exactly what he (and Upham (http://books.google.com/books?id=IJDgOecLzsQC&dq=Mirror+of+Modernity:+Invented+Traditions+of+Modern+Japan&printsec=frontcover&source=bl&ots=HvEFr2HUNP&sig=pUPDT6bSqLrhL8CX8umgANi6Z9I&hl=en&ei=wZ6QSqaDEJeKnQOrh6inAQ&sa=X&oi=book_result&ct=result&resnum=3#v=onepage&q=&f=false)) are calling the tendency to "informal" resolution? They're not saying, either of them, that there's no resolution or no conflict to resolve. Just that informal solutions are preferred. The lawyers-per-capita (or passes as a percentage of law school intake, which is even more mind-boggling, to me) thing is an index of informality.
You can still give a description of the Japanese system of justice which would compare it favourably with other systems without bringing in bizarre fantasies about the role organised crime plays in it.
Well, is that a fantasy? The yakuza are Japan's "designated criminals" -- they do it so others (the Chinese Triads, for instance) don't have to. Their semi-official status ensures that they don't threaten the national government (though they may shoot mayors from time to time). I think it's a plausible reason for Japan's low crime stats, or, more accurately, for the concentration of crime in a designated, relatively-controllable organisation.
more Japanese, in direct contradiction to Professor Macfarlane's assertion, are happy to consider making "claims" against their neighbours, employers, doctors, schools and are being given the means to do so. I would argue this is a direct consequence of the breakdown of the implicit social contract in Japan as the economy came to a stop.
I have no way of fact-checking this. More are making formal claims against their neighbours now than... when? And they do this despite having less money now?
it is lack of economic growth which has called into question the idea of Japan as an egalitarian society where responsibilities are shared. Arguably there is a trade-off here as conflicts will increase when competing groups jockey for their "fair share" of entitlements when the overall pie isn't getting bigger any more.
I actually don't think the idea of Japanese connectedness relates as much as people say to the state of the economy in any given year. I think it's much deeper, and could as easily be served by the solidarity of mass poverty as by the solidarity of mass wealth and ease. Yes, Gini-rates have increased slightly in Japan (and did so in the Koizumite neo-liberal period). But they're still far behind those of comparable Western nations, below even Scandinavian rates.
So I don't think it's a question of "bringing harmony back". It's pretty hard to imagine a Japan without it, though I guess Battle Royale painted one picture of what it might look like. Then again, that film could be the perfect illustration of Auden's line: "We must love one another or die."
(no subject)
Date: 2009-08-24 03:32 pm (UTC)Prof. Macfarlane says the yakuza are not like the triads or the mafia. They are all organized crime groups and the distinction he tries to draw is trivial. I can find differences between Maltese gangsters and the Russian mafia but they are both still organized crime groups. I suspect when the professor speaks of the triads he doesn't know them very well. The yakuza may not look much like Hong Kong or Beijing gangs but they closely resemble Taiwanese and Shangai gangs where their role in society is also very similar. It's a big subject, too much to address here. The role of organized crime is an important one to consider but you have to know what Japanese gangs are and what they do to make a half decent assessment of what effect they have on the crime rate and the professor doesn't appear to. He should pay attention to his "Japanese friends" when they quietly caution him about his cheery view of the yakuza. You'll know yourself that a quiet caution to a respected elder in Japan can be equivalent to loud scoffing in the west.
You can indeed check what I said about claims. I put the word in inverted commas because I was referring back to the word kureemu in katakana mentioned in earlier comments above. If you can prevail upon Hisae to take a 10-15 minute look at even just the Japanese wikipedia entry for the word, including the section on "kureemu mondai" they you'll have a quick introduction to the subject. It's worth noting that legal programmes have become quite popular on TV in Japan to the degree that there are now many "celebrity lawyers". Could you name some equivalents in the UK? John Mortimer and Clive Anderson were both barristers but their fame came from their work in arts and entertainments. Peter Carter-Ruck was a well-known libel lawyer for the rich but I don't know his equivalent today. Meanwhile, in Japan, Toru Hashimoto used his TV fame on Gyōretsu no Dekiru Hōritsu Sōdanjo ((行列のできる法律相談所 - The Legal Advisory Office that People Queue Up For) to become Governor of Osaka. Kazuya Maruyama was also popular on the same panel and featured in the promotional campaign for a Capcom Nintendo DS legal game before becoming a Diet member. Hiroko Sumita, yet another from the same programme, has been chosen by the government to head the Consumer Commission watchdog which will oversee the new Consumer Affairs Agency. As mentioned before, this was a move by the LDP to curb public ire towards dodgy business practices.
My opinion on the importance of the promise of economic growth to many patterns of behaviour in postwar Japan is no more valid than anyone else's. However, Professor Macfarlane's views don't even describe or explain what has happened over the last 10-15 years, let alone provide a predictive model and that's why I'm shocked students at Cambridge are being given such guff. I think his views are similar in many respects to the kind of line you heard from foreigners about Japan in the late eighties. It wouldn't have been especially accurate then but at least some of the trends which have subsequently made a mockery of that portrayal were in their infancy so the faults were not so grievous.
(no subject)
Date: 2009-08-24 04:34 pm (UTC)I'm just a bit wary of something I notice a lot: a tendency for forgeign analysts of Japan to see convergence with the West. Japan is always, for these people, "catching up" with Western trends or ailments. They often bemoan this "catching up", but they take it as axiomatic that it's happening. And so we learn that:
* Japan's greater social equality is on the way out, being replaced by western-type Gini levels.
* Japanese are losing their slim figures because of a diet of Western-style foods like hamburgers.
* Japanese women are at last responding to feminist ideas, and standing up for themselves.
* The harmonious Japanese are becoming as litigious as the Americans.
* Japan's supposedly safe streets are getting increasingly dangerous.
Now, some of these trends are happening, but there are other reasons reporters tell us they're happening:
1. Because the structure of many, many journalistic articles is to give us a well-known stereotype and then dislodge it with some more recent, more relevant information. NB: You do this even if your new information is just as stereotyped, in its way, as the old.
2. Because journalists and other observers, particularly activists, pay too much attention to incremental changes and not enough to solid underlying states.
3. Because soft-left liberals have been taught that everything is a "construct" and that "timeless essences" are merely the convenient creations of a power elite.
4. Because a certain Western chauvinism leads us to believe that all other cultures are "behind us on the same track", and "only now beginning to catch up".
I'm always suspicious when things people tell me fit these cookie-cutter templates, these Western mental reflexes.And I'm predisposed to listen more kindly to analysts who say "We have much to learn from [other culture x]" than to analysts who say "[other culture x] is catching up to us". Especially in the context of the West's recent history of neo-imperialism using the fig-leaf of "humanitarian intervention" and "security" and "universal human rights" (oh yes, and oil and heroin).
(no subject)
Date: 2009-08-24 10:17 pm (UTC)I also agree that it's tiresome to see people describe Japan as "behind" the West or try to reduce Japanese characteristics to western equivalents. However, we shouldn't shy away from making all such judgements. For instance, as Japan's smoking rate declines and smoking is outlawed in more public places, it seems more reasonable to look for similarities with countries which have seen the same changes rather than stick with the view you often used to hear that smoking plays a culturally different role in Japan than in the West. You don't, for instance, have to go far back to find sociologists and the like explaining that smoking would never be outlawed in Japanese offices.
You are absolutely right that convergence is a dangerously easy explanation which leaves too much out but, at the same time, it would be peculiar indeed if developed societies with major economic, social, historical and diplomatic relationships didn't share some characteristics. If we find the same behaviour, we need to work out whether it has appeared by happenstance in different places with unique causes each time or whether there is a common thread.
I also agree that coverage of Japan can be too faddish with irrelevant short term trends given far too much weight. That's true in media reports for many countries, however, and it's also worth noting that a lot of these "trends" in Japan are cooked up first by the Japanese media. Nevertheless, your argument about giving more weight to core values is well made. I would point out that most countries have their own national myths and we shouldn't just accept them at face value. How does John Major's famous speech in 1993 sound to you?
"Fifty years on from now, Britain will still be the country of long shadows on cricket grounds, warm beer, invincible green suburbs, dog lovers and pools fillers and, as George Orwell said, 'Old maids bicycling to holy communion through the morning mist' and, if we get our way, Shakespeare will still be read even in school."
It isn't blackening Britain's image or condemning the country to point out where that doesn't jibe with reality. Similarly, we don't advance the cause of international understanding by accepting any of Japan's national myths, especially at a time when citizens themselves are calling them into question.