- Second-Best Justice: The Virtues of Japanese Private Law by J. Mark Ramseyer
The conundrum of low litigation rates in Japanese civil law cases has fascinated scholars of Japanese and comparative law for a number of decades. In turn, this has generated considerable discussion and created an extensive body of literature. The debate extends beyond straightforward statistical analysis to encompass a sociocultural analysis of the Japanese legal system and the interaction of Japanese citizens with the law and legal processes. The tensions between Japanese scholarship and the analysis of scholars outside Japan gathered pace in the 1970s. The Nihonjinron literature of the 1960s and 1970s had served both to reinforce national identity and to claim Japanese cultural “uniqueness.” Its pseudo-anthropological narrative promoted the idea of a homogenous, hierarchical society that emphasizes the group rather than the individual. By relying on a theory of Japanese uniqueness, it was thought that differences between Japanese and Western societies could be explained.
The pervasive nature of the Nihonjinron theory meant that academic literature on the Japanese legal system and its laws reflected a similar discourse. Thus, in one of the early English-language texts on Japanese law, Yosiyuki Noda characterized the relationship between the Japanese and their law as follows: “To an honourable Japanese the law is something that is undesirable, even detestable, something to keep as far away from as possible. To never use the law, or be involved with the law, is the normal hope of honourable people. To take someone to court to guarantee the protection of one’s own interests, or to be mentioned in court, even in a civil matter, is a shameful thing. . . . In a word, Japanese do not like law.”1 During the same period, one of Japan’s foremost legal sociologists, Takeyoshi Kawashima, emphasized the role Japanese culture plays in attitudes to litigation. He suggested that low litigation rates in civil disputes could be explained by reference to sociocultural norms unique to Japan.2 Against this background [End Page 241] emerged the idea of the “reluctant litigant” in Japan, someone who had a cultural preference for informal mediated dispute settlement, who disliked and distrusted resort to the courts and its associated judicial intervention. While it could be demonstrated statistically that the Japanese used their courts less often than citizens in other countries, particularly the United States, the causes were contested.
The culturalist hypothesis put forward by Kawashima and others was subjected to its first major challenge by John Haley in his article “The Myth of the Reluctant Litigant.”3 Whereas the culturalists claimed that, because of the importance placed upon consensus and harmony in Japanese society, litigation threatened the social order and was therefore to be avoided, Haley argued that this was a myth and that the Japanese were not particularly litigation averse. Instead, he believed that institutional incapacity, namely insufficient numbers of courts, judges, and lawyers, weighed heavily against taking civil action in the courts and in favor of utilizing more readily available forms of alternative dispute resolution (ADR) that also provided effective remedies. A decade later, Ramseyer entered the debate with the first article of what would become a body of work using law and economics theory as his thematic tool of analysis.4 He too dismissed the sociocultural hypothesis for low litigation rates in Japan and introduced the idea of the “rational litigant.” Analyzing disputes following traffic accidents and the pattern of insurance claim settlements, he argued that litigants made a rational choice between litigation and ADR settlement and that this wealth-maximizing model, rather than a cultural explanation, determined the way the Japanese behave in disputes. Thus, in a context where the legal rules are relatively certain, and because similar disputes are frequent, potential litigants are able to calculate with reasonable certainty what the litigated settlement will be. They therefore make a rational choice and opt for ADR to maximize their financial settlement by avoiding the expense associated with court litigation.
Ramseyer went on to apply law and economics theory to develop...