Japan's Aggressive Legalism: Law and Foreign Trade Politics Beyond the WTO (review)

It is just over 20 years since Kent Calder published his (in)famous review essay that sought to explain Japan's foreign economic policy through the characterization of the "reactive state." For Calder, a reactive state "fails to undertake major independent foreign economic initiatives when it has the power and national incentives to do so; and it responds to outside pressures for change, albeit erratically, unsystematically, and often incompletely."¹ The extent to which this label was adopted, questioned, and consequently refined within the extant literatures not only on Japan's foreign economic policy but a range of other aspects of Japan's role in the world was remarkable. It arguably became the dominant mindset and certainly resulted in some excellent work, most notably Dennis T. Yasutomo's The New Multilateralism in Japan's Foreign Policy (St. Martin's, 1995). Nevertheless, by the time Calder came to revisit the idea of the reactive state in 2003,² there was a sense that the reactive state of the 1980s had little in common with the more active international behavior of the Japanese state that had emerged from the supposedly "lost decade" of 1990s. In this book, Saadia Pekkanen addresses these issues head-on and provides us with a tenaciously researched and skillfully executed study of the Japanese government's recent legalistic behavior within the World Trade Organization (WTO) and beyond (as the subtitle promises) that delivers the final nail in the coffin of the reactive state.

Pekkanen's assertion is that "[c]hange has come to Japan's foreign trade politics by way of the law" (p. 273) and her objective in this book is to locate the role and influence of law in foreign trade politics. She begins by charting its rise in international institutions that underpin and promote globalization, especially the WTO, from a variety of disciplinary perspectives that display both strengths and weaknesses and provide the context and justification for this study. Equally important in this light, early in the book Pekkanen shifts our attention toward the rise and impact of Japan's "aggressive legalism" across historical and geographical contexts. By "aggressive legalism," Pekkanen is referring to "the use or invocation of legal rules in consultation, negotiations, agreements, and administrative and dispute settlement procedures to counter what trade-related actors deem to be the unreasonable and economically harmful acts, requests, and practices of their major trade partners" (p. 5). In short, the Japanese state is increasingly ready to instrumentalize the law to promote and defend its national interests to the extent that these related strategies have become deeply embedded in its behavior not only in the WTO but further afield in its foreign trade relations. Long gone, it seems, are the days of the reactive state.

As Pekkanen suggests (in line with this reviewer's own experience of researching Japan's role in the Group of 8 summits), the reaction of some readers to Japan's "aggressive legalism" might well be to balk at the idea. This is especially the case among a Japanese readership that has become accustomed to accounts of Japan's reactivity and self-perception as a non-litigious country. However, Pekkanen challenges these biases by tracing the important changes that have been taking place in Japan over recent years and that support the more aggressive legalist approach that the Japanese state studiously avoided within the General Agreement on Tariffs and Trade (GATT) but actively adopted with the creation of the WTO in 1995, beginning with the high-profile disputes with the United States over automobiles.

One question that emerges from this initial exposition is in which specific areas does this "aggressive legalism" manifest itself and why? Pekkanen's thesis is that the presence or absence of trade-dominant industries is the key factor in determining the nature of and extent to which the Japanese state will adopt "aggressive legalism." For example...