6 - Litigation and the courts: talking about rights

Summary

RIGHTS AND THE LEGAL PROCESS

The Japanese, we have long been told, go out of their way to avoid courts. Noda Yoshiyuki, a prominent member of the University of Tokyo's Faculty of Law for over three decades, describes the Japanese aversion to the courthouse in this way:

To an honorable 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 honorable 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 …

Noda goes on to say that even when the Japanese have a right that they believe is “beyond dispute,” the “good citizen” may well not enforce it because it “weighs on the conscience.” John Haley, a leading authority of Japanese law at the University of Washington, dismisses Noda's psychosocial explanation, and others like it, complaining that “[F]ew misconceptions about Japan have been more widespread or as pernicious as the myth of the special reluctance of the Japanese to litigate.” Instead, Haley explains low litigation rates by emphasizing what he calls “institutional” factors, such as limited remedies and the small number of judges and lawyers.