Does the Japanese inclination towards non-litigation hinder access to justice for minority groups?

Waldemiro Francisco Sorte Junior Reference to this paper should be made as follows: Sorte Junior, Waldemiro Francisco (2014) ‘Does the Japanese inclination towards non-litigation hinder access to justice for minority groups?’, International Journal of Public Law and Policy, Vol. 4, No. 3, pp.221–244.

Abstract: This paper argues that the tendency of the Japanese society not to rely on litigation as a means of dispute resolution have a negative impact on access to justice for minority groups. Along with social mobilisation and political participation, filing a lawsuit represents an important way for these groups to claim and enforce their rights. Hence, this paper emphasises the need to improve legal awareness and access to justice for minority groups in Japan to enhance their living conditions and social inclusion. It discusses some of the reasons for the Japanese inclination towards non-litigation and examines the main advantages of improving access to justice for minority groups. In addition, it presents a historical overview of the burakumin situation in Japan, highlighting some of the discriminatory practices they are subjected to, in order to show that the legal empowerment of this minority group is pivotal to help reducing discrimination and improving their inclusion into Japanese society. 1. Introduction The purpose of this study is to analyse whether the propensity towards non-litigation in Japanese society can be considered as an obstacle to greater access to justice for minority groups. Although law encompasses a great variety of areas (criminal law, family law, labour law, property law and so forth) this research has examined data for litigation and access to justice in general terms, with a greater focus on civil law (i.e., non-criminal law). Moreover, while several minority groups are referred to throughout the paper, the main research focus has been on the situation of burakimin in Japan.

The study of the interaction between minority groups and the legal system is a theme related to the field of legal anthropology. According to Rouland:

“[Legal anthropology] sets itself the objective of understanding the rules of social behaviour, but emphasizes the legal domain, all the while recognizing that law can never be considered in isolation; law is only one element in the cultural and social whole of each society, and is variously interpreted and used by each subgroup.”1

Recent literature reveals that, although much has been done to improve the living conditions of minority groups in Japan, cases of prejudice and social discrimination still persist.2 Therefore, identifying problems that should be tackled through governmental policies to ensure a greater inclusion of such communities is paramount for promoting steadier social and political development in Japan. Moreover, it is necessary to provide additional channels through which these groups can protect and exercise their rights, notably by making greater use of the judiciary.

In 2011, Japan had approximately 127 million inhabitants.3 Foreigners with legal permit were 2,078,508 or approximately 1.64% of the total population. In some Japanese prefectures, however, the number of foreigner residents is representative, particularly in Tokyo (405,692 persons), Osaka (206,324) and Aichi (200,696).4 In addition, statistics from the 1985 General Affairs Agency census reveal that the burakumin population in Japan was 1,163,372 people, living in 4,594 communities. At that time, the number of burakumin was particularly large in Hyōgo (153,236), Osaka (143,305) and Fukuoka (135,956).5 Nowadays, authors acknowledge the difficulty in calculating precisely the number of burakumin in Japan, although it is widely reported in the literature that the burakumin population is estimated in three million, accounting for approximately 2.3% of the Japanese population.6

Albeit minority groups may not be significant in percentage terms considering the Japanese population as a whole, “in the Kansai region where burakumin and Korean residents are concentrated, the proportion of the minority population exceeds 10 percent.”7 Overlooking the needs of such a large proportion of the local population may adversely affect local sociopolitical stability and economic growth.

This paper is divided into five sections including this introduction. The following section presents a brief historical evolution of the Japanese legal system and describes the Japanese tendency not to rely on litigation in dispute resolutions. Section 3 is devoted to a discussion on the role of the judiciary for promoting social change and on the importance of increasing access to justice for minority groups. The fourth section briefly outlines the situation of burakumin in Japan and examines how the non-litigious character of Japanese society may impact on the protection and enforcement of the rights of minority groups. The final section concludes the paper. 2. The Japanese inclination towards non-litigation To initiate this discussion, it is useful to present a definition of litigation. Litigation generally refers to “actions contested in court.” It thus implies three distinct elements: “first, a claim, that is, an active attempt to attain some valued end; second, a dispute or conflict, in other words, resistance to the claim; and third, the use of a specific institution, the court, to resolve the conflict or dispute.”8 In this paper, therefore, non-litigiousness pertains to the tendency not to file a formal complaint directly to the court, but rather to search for alternative ways of solving disputes.

Several authors have emphasised that Japanese people have a tendency not to rely on litigation as a way of solving disputes.9 Although, as

discussed below, statistical evidence tends to demonstrate an increase in the Judicial caseload notably from the late 1990s10 (Figure 1), Japan still presents a relatively lower number of judges, lawyers and new cases filed in court, in cross-country comparisons (Table 1). Figure 1: Number of civil (non-family) litigation suits filed in Japan: 2006–201011

Table 1: Various measures of litigation12 Canada Japan France England USA (2009) (2008) (2006) (2007) (2006) Suits filed (per 100,000 people) 1,450 1,768 2,416 3,681 5,806 Judges (per 100,000 people) 3.3 2.83 12.47 2.22 10.81 Lawyers (per 100,000 people) 26 23 72 251 391

Before discussing the main reasons presented in the literature for the Japanese relative reluctance to bring disputes to court, it is necessary to present a brief historical evolution of the process of adopting the Western legal system in the country. 2.1. The historical evolution of the Japanese legal system from the Meiji period The process of modernisation and the comprehensive adoption of Western legal framework started in the Meiji period (1868−1912), when Japan was coming out from long years of feudal rule under the Tokugawa Regime (1603–1867). In fact, Japan is now a “civil law country in which most legal subjects are covered by codes” and an intense process of legal codification in the country was conducted in the late 1880s and 1890s. After Japan opened itself to the rest of the world, the country felt the urge to rapidly overcome its technological and institutional backwardness in comparison to Western powers. Accordingly, Japan looked to continental Europe for a model to base its new legal system because “civil law codes offered more practical advantages for a country seeking a starting place than a common law system which placed so much reliance on the natural evolution of case law.”13

The adoption of Western style law was initially influenced by the French system, as France “was viewed as having the most sophisticated and complete codification of laws” at that time.14 Japanese translations of the French Civil and Criminal Codes were vastly used and European jurists were invited to assist in the process of adapting the European legal system to the Japanese reality. Nonetheless, opposition to the adoption of the French style code emerged on the grounds that such a system was not compatible with the “traditional customs and morality of the Japanese people.” One should note that the motto of the Meiji period was “Western techniques, Oriental morality” and Japan was thus focused on rapidly importing Western technologies and institutions without promoting substantial changes in the Japanese values and ways of thinking. In this manner, although both the French and German legal systems were vastly used to modernise Japanese Laws, the latter became more influential. According to Luney Junior:

“What finally emerged in 1898 was a civil code modeled on European code systems including French, German, Swiss, Austrian, and Dutch legal codes. In form and substance, the Japanese were most influenced by French and German law; and, indeed, the Japanese Civil Code has been described as a selective combination of French and German legal principles. However, German laws were firmly establishing themselves as the dominant source of influence on Japanese legal thinking. A year later, the Japanese legislature adopted a German-style commercial code.”15

In the post-war period, Japan was also highly influenced by US laws, particularly during the Occupation period (1945–1952).16 Moreover, in recent years Japan has started a process of deregulation and administrative reform as an attempt to create a more democratic and market-oriented

economy.17 Such reforms have been extended to the justice system, and the country is “attempting to transform its image as a ‘society where the law is used sparingly’.”18 The justice reform as well as substantial changes in Japanese legal education, which elevated law schools into graduate programmes from 2004,19 were introduced taking the US legal system as a model. Laws designed to regulate several aspects of economic life were passed in an attempt to adapt Japan to this new era of globalised market:

“Around 1990, Japan’s great economic bubble began to pop. As the economy bounced in and out of recession for the next decade, pressure began to build for legal change. A wave of reforms to fundamental legislation and legal institutions followed, including, inter alia, reforms of civil procedure and corporate law; an overhaul of financial law; passage for the first time of an administrative procedures act, a law on information disclosure, and a products liability law; and, most recently, efforts to overhaul the system of legal education and professional training. Because of the range and scale of these reforms, some have compared the current period with the systemic transformations of the late 19th century and the U.S. Occupation era (…), and the reformers themselves have invoked the parallels (….).”20

Some of these changes, including the enactment of a products liability law in 1993 and the reform in effect from 1998 of the Civil Procedure Code, were aimed at making litigation more attractive and stimulating the business sector to make broader use of the judiciary.21 From the 1990s, efforts were also made to increase the number of lawyers and judges in Japan. In 1991, the National Bar Examination Act was amended in order to encourage a greater number of students graduated in law to become attorneys and thus expand the Bar. It is interesting to note that law schools in Japan were traditionally not so much focused on teaching students to become lawyers, but rather on training future government officials.22

2.2. Theories on Japanese non-litigiousness Part of the literature that tries to explain the Japanese reluctance in solving disputes through litigation presents cultural traits as the main explanation for such a pattern of behaviour, arguing that Japanese is a non-confrontational and homogeneous society which treasures consensus and social harmony.23

Tanase presents an interesting example, which illustrates the conflict between Japanese social customs and the adoption of Western style laws in post-war Japan. The incident shows not only the difficulty of the Japanese society in assimilating Western legal principles but also the reluctance of the Ministry of Justice in properly tackling the issue:

“(…) in the early 1980s, there was an incident in which a couple sued their neighbour over their son’s death, alleging that the neighbour, a housewife, negligently let their son drown in a nearby pond. The public was outraged by the news, for what the neighbour did was simply to let the couple’s son play with her own son near her house. She did not really look after them. That kind of casual care was then a commonly practised neighbourly act. So some who were really disturbed by this unneighbourly

act of suing the neighbour harassed the couple by anonymous calls and threatening letters. Then the Ministry of Justice intervened and issued a public admonition that the right everyone has to sue in court must be honoured in a democratic society. Here, avoiding the real issue of what constitutes a good neighbor in a modern community, and also avoiding the issue of rights or regulations necessary to prevent this from happening, the Ministry simply cited the banal truth of the law, and tried to chide the public.”24

Tanase25 also stresses the relevance of moral confrontation in the Japanese conflict resolution process. Whereas in the US, insurance company staff or lawyers can mediate dispute resolution without the need of face-to-face contact between the parties, in Japan an explicit apology from the injurer to the victim is paramount for a smooth and effective negotiation process. According to the author, this demonstrates that the Japanese culture treasures the “maintenance of good social relationship” and considers “giving trouble to others” in itself a serious offense.26

Another important evidence of the impact of culture on the evolution of legal and political systems is presented by North27 in his study on the relationship between economic growth and institutional change. He defines institutions as “humanly devised constraints that shape human interaction” and “reduce uncertainty by providing a structure to everyday life.” Institutions can be divided into formal (constitutions, laws, property rights, etc.) and informal rules (customs, traditions, codes of conduct, etc.). Through a historical comparison between societies, North28 argues that “institutions provide the incentive structure of an economy”, and as this structure evolves, it “shapes the direction of economic change towards growth, stagnation, or decline.” Different incentive structures resulted in different patterns of evolution of the institutional framework of societies, leading to the perpetuation of clientelist patterns of behaviour in some countries or to a gradual evolution towards the protection of property rights and impersonal relationships in business transactions in others. This view tends to emphasise the importance of path dependency in the sociopolitical evolution of a country. In this manner, the functioning of the judiciary system of a given society is not only the result of law enactment and enforcement, but also of informal norms of conduct and interpersonal relations, which are highly influenced by culture and tradition.

In a more extreme approach, Legrand29 contends that the cultural aspects of the recipient country hinders the process of importing, implementing and enforcing laws originated in other countries, as laws can never be separated from its social and cultural context. As a result, Legrand argues for the impossibility of legal transplants. His arguments are convincing, notably because transplanting a given law to a new social environment disregarding the cultural, political and social circumstances in which it was envisaged may result in the enactment of a law that may prove to be incompatible with the recipient country’s reality. Nonetheless, legal transplants have become an actual necessity for developing countries searching for ways to adapt their legal systems for the new imperatives of an increasingly globalised world pushing for market-oriented reforms. Moreover, throughout the world history, late industrialised countries often

looked for political models, technological advancements and legal frameworks created in developed nations in an attempt to promote rapid economic growth and sociopolitical development. Japan was no exception to this tendency, and the country started searching for foreign models as a way of catching up with Western powers in the late 19th century, as discussed above.

The aforementioned discussions tend to demonstrate that culture, tradition, and social norms of behaviour greatly influence the evolution of the legal and judiciary system of a country. However, a number of authors warn against overemphasising culture-based arguments to explain every single political and social phenomenon in Japan. Johnson, for instance, challenges the conception that Japanese cultural uniqueness is the main reason for the successful process of economic growth during the 1970s and asserts that consensus is not a characteristic inherent in Japanese society:

“The famous Japanese ‘consensus’ appeared only during the 1950’s; it did not yet exist during the 1930’s and 1940’s, which suggests that it was based on changes in historical circumstances and political consciousness and not on unique social values.”30

Moreover, while acknowledging that a consensus-oriented society may provide “homogeneous backgrounds for people to grow up in, thus making it more likely that they become consensus-valuing individuals,” Dore31 argues that Japan is becoming a less homogeneous society, as young people are increasingly pursuing their own personal interests, mainly as a result of a greater contact with different lifestyles and Western ideologies, such as individualism.

Therefore, although cultural and social aspects may be considered obstacles for a broader assimilation of foreign legal principles and for a more comprehensive use of the judiciary for dispute resolution in Japan, culture-based theories only partially explain the non-litigious tendency of the Japanese and other aspects should also be examined.

In this context, Tanase32 presents a number of different institutes and mechanisms developed by governmental and quasi-governmental organisations that contributed to limit the number of complaints brought to court. Tanase’s study focuses on automobile accident compensation disputes and explains how services of consultation provided by insurance companies, police offices, Traffic Accident Consultation Centers and other institutions, with the assistance of consultants, lawyers and the bar association, are effective in dissuading parties to take their cases to court.

For instance, by creating fixed standards for paying damages in traffic accidents, insurance companies can provide a similar compensation for victims with equivalent claims and who have suffered equal damages. Even when the victim is not satisfied with the compensation paid by the insurance company, institutions such as Traffic Accident Consultation Centers provide assistance for the parties to solve their disputes through mediation. It is interesting to note that these Centers often employ retired judges and lawyers, which greatly contribute to create a feeling in the parties that the Center’s decision will be close to a sentence pronounced by a court. In addition, this system considered as a whole, including the

consultation provided by insurance company’s consultants, lawyers, police officers and the Centers’ staff, tends to be effective in convincing the parties that they have much to gain by not taking the case to court, as the victim often feels that the differences in terms of financial compensation will not justify filing a lawsuit.

Another theory proposed by Haley33 sustains that in Japan, those who have a position of authority, i.e., “the legitimacy or socially recognized entitlement to command and to be obeyed,” does not necessarily hold power, that is to say “the capacity to coerce others to do something they would not otherwise do.” He presents as evidence the extensively use of administrative guidance in Japan, which is a type of informal advice or recommendation given by officials that are promptly obeyed by the private sector and other sectors of the society. Administrative guidance has a peculiar nature in Japan because it covers issues that would be normally regulated by formal laws in other countries. In fact, this great reliance on informal recommendations by official authorities who do not hold coercive power to do so seems to reveal a relative weakness of formal law enforcement in the country.34 Such a great reliance on informal recommendations by officials may be yet another reason why the Japanese tend to accept the advices of consultants from governmental or quasi-governmental institutions instead of filing lawsuits in courts pursuing the application of formal laws. According to Haley:

“The result is a dependence on extralegal, informal mechanisms of social control as a means for maintaining societal order with a concomitant transfer of effective control over the rules and norms that govern society to those who are able to manipulate these informal instruments of enforcement.”35

Sato36 argues that the Japanese Government in the post-war period deliberately tried to prevent the development of litigation and established state controlled mediation schemes in order to better control the population and avoid the emergence of social conflicts. Law was seen only as a mere symbol and disputes were often solved through governmentally sponsored alternative dispute resolution processes. He argues that this was a strategy created by the government to promote industrial development and economic growth without the threat of opposing forces claiming their rights in court. Thus, Japanese economic success was, according to the author, achieved at the cost of human rights:

“It is reasonable for the government to have left the judiciary small as part of its judicial policy to suppress the increase in claims and individual rights by providing mechanisms of paternalistic informal processing through gyōsei shidō (administrative guidance), an informal tool for controlling business without the fear of actual judicial intervention. This was an implicit part of the government’s industrial policy.”37

In another study, Haley38 asserts that the limited number of judges, lawyers and courts in Japan can be identified as an important reason for low litigation rates. The absence of a broader number of remedial measures and types of actions, as well as the overall lack of capacity of

courts to provide suitable relief are also highlighted as possible explanations. In a more recent paper, Ginsburg and Hoetker39 corroborate Haley’s arguments, arguing that the increase in litigation rates experienced by Japan from the 1990s onwards is directly related to a greater availability of judges and lawyers.

A famous environmental problem that occurred in Yokkaichi City, located in Mie Prefecture, from the 1950s to the 1970s tends to show that alternative ways of solving conflicts in Japan have historically been more effective than litigation in tackling social problems. From the 1950s, Japan started the construction of petrochemical complexes in Yokkaichi under its economic policy of promoting heavy industry growth. These complexes greatly affected the lives of local communities, since it caused an outbreak of asthma and had a negative impact on the business of fishermen due to the considerably decrease in fish population and the unpleasant odour of foul smelling fish. An intense participation of civil society organised groups, which actively demanded concrete measures from the government, was pivotal to overcome government inertia. Instigated by these social movements, the local and central government started implementing measures to address the environmental problem, resulting in the creation of a certification system, which provided medical treatment free of charge for patients that developed asthma. New regulations were also enacted both by the central and local government to try to reduce pollution. In addition, due to the close relationship between the Japanese central government and the business sector, the state had power, to certain extent, to influence the activities of industries. As a result, the industrial sector in Yokkaichi was also engaged in developing technologies to reduce sulphur dioxide emissions and decrease pollution levels.40

The Yokkaichi incident is also well-known for being one of the ‘Big Four Pollution Cases’ in Japan, in which lawsuits were brought by the victims against the polluters. However, as sustained by Upham,41 litigation itself was “considered less important than the movement” and therefore these four legal actions were “designed to support the general anti-pollution movement, not the reverse.” In this manner, litigation was considered only as one measure – and probably not the most significant and effective one – to win over government inertia.

Another one of the ‘Big Four Pollution Cases’ took place in Minamata City, located in Kumamoto Prefecture, as a result of the so-called Minamata disease, a neurological syndrome caused by severe mercury poisoning. This disease also originated from the pollution of heavy industries during the period of industrial expansion in Japan. In 14 June 1969, 138 individuals from 30 families affected by the Minamata disease filed a suit demanding compensation. However, according to Sato42 “since there was no special procedure for this mass-litigation, such as the class action mechanism in the US, the final compensation recently settled in court was too late and too small.” This lawsuit, however, had an important political impact, and resulted in the enactment of a new regulation on pollution control in 1967 and a major statutory scheme to aid pollution victims in 1973.43

As a final note, it is interesting to mention that Ginsburg and Hoetker44 disagree with the idea that Japanese are non-litigious. They contend that litigation is countercyclical and in Japan as elsewhere, “economic stress breaks relationships, leading to more disputes that become salient enough to resolve through courts.” In this manner, according to the authors view, Japanese society will increasingly become a litigious society as economic distress starts compelling people to enforce their rights in court. 3. Access to justice: empowering minority groups There is no consensus in the academic literature over an internationally accepted definition of minority groups. In fact, the concept of minorities tends to vary greatly depending on the society, as it is often influenced by political, social and cultural aspects. The main reasons for considering certain social groups as minorities in a country may include a vast array of objective factors such as ethnicity, religion, race, gender, health, language or sexual orientation, as well as subjective factors such as self-identification as members of a minority. Moreover, they may live together in a specific geographic area or be scattered in various regions of a state. A number of definitions highlight that minority groups are numerically inferior to the rest of the population, but the fact that they hold less political and social power than other citizens may be identified as an equally important feature of such groups.

In legal terms, it is difficult to precisely define the entire set of rights to which minority groups are entitled in comparison to other citizens. For instance, several countries do not grant the right to vote to immigrants on the grounds that suffrage rights derive from citizenship. The amplitude of rights of minority groups, therefore, may differ across countries in view of local legislation. There are, however, international treaties and conventions focused on harmonising the implementation and enforcement of human rights in the world, as well as internationally recognised principles, such as the customary international law principle of non-discrimination, that ensure basic protection to minority groups.45

In this context, increasing access to justice for minority groups is an important initiative to guarantee the protection of human rights, reduce poverty and strengthen democratic governance. By providing speedy, affordable and meaningful remedies to minority groups, the state offers a pivotal channel for the disadvantaged to claim their rights. In addition to making such legal remedies available, it is also necessary to guarantee respect for the due process of law and equitable and impartial decisions:

“Access to justice means much more than improving an individual’s access to courts or guaranteeing legal representation. It consists in ensuring that legal and judicial outcomes are just and equitable, and that systems work in practice for the poor and the disadvantaged.”46

Among the types of support to promote access to justice endorsed by the United Nations Development Programme (UNDP),47 attention should be paid not only to legal protection, i.e., “development of capacities to ensure that the rights of disadvantaged people are recognized within the scope of justice systems,” but also to legal awareness, so that minority groups became conscious of their rights and of the legal remedies to protect them. According to Hackmann:

“For those who are unaware of their rights and any existing solutions, legal redress and access to justice are meaningless. Information has to reach poor people in ways they can understand. Both government and non-governmental actors can play an essential role in implementing strategies to create legal awareness. Challenges include a lack of communication policies or a reluctance to share information.”48

Legal awareness involves disseminating information to minority groups regarding: “(a) their right to seek redress through the justice system; (b) the various officials and institutions entrusted to protect their access to justice; and (c) the steps involved in starting legal procedures.”49 Furthermore, this support to promote access to justice should include legal aid and counsel, to assist minority groups in initiating and pursuing judicial procedures, as well as civil society and parliamentary oversight, to constantly monitor the implementation of such initiatives and exercise political pressure to ensure their effectiveness.

Maru50 emphasises the importance of “awareness building and public education” to successfully increase access to justice for the excluded. He argues that the adoption of an active rather than submissive attitude in claiming one’s rights “requires knowledge of [legal] institutions and of the rules by which they are governed.”

On top of that, it is important to add that the necessity of awareness building and public education should not be limited to the minority or targeted groups, but should include society as a whole. In order to change people’s mentality, reduce prejudice and enhance the population’s support for such initiatives, it is paramount to implement measures focused on disseminating information throughout society regarding the need to improve the situation of minority groups.

One should note that recourse to litigation is usually limited by the economic capacity of the user and by the availability of people with specialised expertise to follow-up legal proceedings in court. In this manner, new litigation methodologies may be envisaged to

better address the constraints faced by such groups, including language barriers, insufficient technical capacity and limited financial resources. A demand-driven approach is thus essential in order to make legal counselling and new legislation more responsive to the specific needs of minority groups.51

Measures to promote access to justice should “balance the empowerment of rights holders with the accountability of duty bearers” 52 and should thus involve the collaboration of a great number of different actors such as “the police, the courts, prosecutors, social workers, prison officials, community leaders, paralegals, traditional councils and other local arbitrators.”53 The effective designing, planning, implementation and monitoring of initiatives to enhance access to justice for minority groups demand the engagement of various institutions, which implies great coordination efforts.

Increasing access to justice for minority groups is also intrinsically related to the process of legal empowerment. Legal empowerment includes initiatives that enable disadvantaged groups to use legal and administrative processes and the judiciary structure to access resources, services, and opportunities, in order to overcome their situation of exclusion. Hence, legal empowerment also greatly relies on bottom-up and community-driven processes to increase legal awareness and participation.54 Legal empowerment can thus be understood as the “process of systemic change through which the poor and excluded become able to use the law, the legal system, and legal services to protect and advance their rights and interests as citizens and economic actors.”55

Banik56 adds to this discussion by arguing that legal empowerment cannot be achieved without measures to promote political empowerment. He stresses that the term empowerment denotes the existence of imbalances of power that can only be tackled by intense political confrontation. It would be naïve to assume that legal empowerment would be achieved without an involvement and approval of the country’s political leaders. Hence, both legal and political empowerment of minority groups presupposes not only the active involvement of these groups, but also the inclusion of such topics in the long-term agenda of public officials and political leaders. Empowerment initiatives cannot be advanced if high political authorities and the society in general feel threatened by such changes. 3.1 Rule of Law in Japan Japan occupies a high position in cross-country comparisons regarding the Rule of Law. For example, Japan was recognised as the eighth best performing high-income country regarding access to civil justice in the Rule of Law Index of The World Justice Project.57 In this index, Japan had a similar or higher score than other high-income countries in the majority of outcomes assessed, including the absence of discrimination in civil justice and the absence of corruption or government influence in civil justice.58 Moreover, the 2013 Doing Business ranking of The World Bank,59 which compares business regulations for domestic firms in 185 economies, placed Japan at the 24th position. On sub-items more closely related to the examination of countries’ legal environment and institutions,

Japan was in the 35th position concerning enforcement of contracts60 and in the 15th position regarding the economy’s regulatory environment.61

Furthermore, it is mention worthy that Japan has consistently maintained a high position in the Human Development Index. In 2012, Japan was the tenth highest scoring country and was thus among the nations with very high human development.62 It also sustained the tenth position in all the components of the index, including health, education and social integration.63

Hence, caution is required when examining matters regarding access to justice and legal empowerment in Japan. In fact, several frameworks proposed by the UNDP to enhance access to justice and promote legal empowerment tend to be focused on low-income countries and associated with measures to address situations of extreme poverty or of civil instability in the aftermath of conflicts, civil war or political unrest.64 Some of the proposed initiatives in such publications, therefore, seem to be focused on countries with precarious judiciary systems and poor capacity to enforce regulations and ensure the due process of law.

Nonetheless, this does not mean that high-income countries are free from problems related to access to justice. Although the Organisation for Economic Co-operation and Development (OECD) member countries often adequately enforce fundamental rights and have a stable and comprehensive regulatory system, covering a vast array of different areas of civil and business life, improvements can still be achieved in a number of fields, especially concerning marginalised segments of the society.

In a study based on questionnaires applied to reporters from several developed countries, Mattei65 reveals some constraints faced by these economies to better promote access to justice for the population. Mattei66 contends that, even though justice was initially conceived as a public good under the Welfare State, in the early 1980s countries started to question this concept of government on the basis that maintaining a wide coverage of a large proportion of social services was too expensive. Justice for the poor, along with public shelter, health and education were the main targets of budget cuts.

In recent years, however, discussions on the importance of facilitating the access of the population to the judiciary as well as to alternative dispute resolution services have increased. As discussed in Section 2, from the 1990s onwards Japan started implementing a comprehensive legal reform, involving the enactment of new regulations, changes in the structure of law schools and the expansion of the Japanese National Bar Association. These changes tried to stimulate a broader use of the judiciary by citizens and the business sector. In this respect, Mattei adds the following, regarding the availability in Japan of pro-bono legal practice and subsidised legal services:

“In Japan there is a major reform effort in this domain, with legal clinics appearing in the new advanced law schools established since 2004 and the Justice System reform states that “pro bono activities should be deemed one of the lawyer’s duties.” Some local bar associations are apparently implementing this language.

The Bar Association of Japan has endowed a fund for law firms willing to provide legal aid in the remote countryside with an interesting system of subsidization. However, according to the reporter the future of the 62 firms established under this program is grim.”67

Hence, Japan has successfully enforced the rule of law, insulating the judiciary from arbitrary influence of the government, politicians and the private sector and ensuring, to some extent, access to an impartial judiciary system for the population. Nonetheless, ongoing reforms reveal constraints that need to be addressed. Moreover, although some authors contend that litigation cases are increasing in Japan as highlighted in Section 2, a great reliance on alternative ways to resolve disputes may be considered as a barrier to better access to justice for minority groups, as examined below. 4. The situation of minority groups in Japan: the need to increase access to justice Discrimination against minority groups and the reluctance of the disadvantaged to resist prejudice and uphold their rights may be partially explained by the existence of the so-called symbolic violence, i.e., “violence which is exercised upon a social agent with his or her complicity.”68 Symbolic violence is based on the assumption that people living in a given society assimilate culture and power relations to such an extent that challenging social norms or questioning legal or political institutions become unconceivable because they view the existing social structure as the natural order of the world. Symbolic violence, therefore, results from the fact that social agents engage in a set of fundamental, pre-reflexive assumptions “by the mere fact of taking the world for granted, of accepting the world as it is, and of finding it natural because their mind is constructed according to cognitive structures that are issued out of the very structures of the world.”69 Jenkins further discusses the concept:

“Symbolic violence, according to Bourdieu, is the imposition of systems of symbolism and meaning (i.e., culture) upon groups or classes in such a way that they are experienced as legitimate. This legitimacy obscures the power relations which permit that imposition to be successful. Insofar as it is accepted as legitimate, culture adds its own force to those power relations, contributing to their systematic reproduction. This is achieved through a process of misrecognition: ‘the process whereby power relations are perceived not for what they objectively are but in a form which renders them legitimate in the eyes of the beholder.”70

The situation of minority groups is thus a complex issue because discrimination becomes institutionalised, that is to say, both society and these groups tend to take the social reality as something natural. Power relations and patterns of interpersonal relationships become embedded in tradition and culture to such an extent that discrimination is not viewed as such, but rather as the natural way that society works. In this context, legal awareness and public education are pivotal to change people’s mindset

and to make minority groups understand their rights. Moreover, in order to promote change, minority groups should exercise pressure over the government and society through different channels, including political participation, social movements and, as proposed by this paper, judicial actions. 4.1. The burakumin It is difficult to determine precisely the origins of the burakumin or outcast groups in Japan, although the history of discrimination, which has led these groups to settle in segregated villages, probably started as early as the eighth century.71 The main reason for their social exclusion seems to be related to the type of activities they were engaged in. The main occupations of the group called eta (穢多, or literally, abundance of defilement or impurity), for instance, was slaughtering animals, caretaking of the dead and tombs, and handling animal carcasses. The source of the eta’s social exclusion was initially related to the Shinto notions of pollution, as their activities were associated with death, blood, crime and disease, and was further intensified by the Buddhist idea of Karma, according to which sin could not be easily removed and could be transmitted to the individual’s future lives. Even in the late 15th century, when economic and political change resulted in a greater development of agriculture and led farmers to use cattle primarily as draft animals to increase productivity, there was still a great demand for people who would dispose of animal’s bodies and use their hides to make leather.72

Accordingly, several outcasts that left their communities in later periods tried to avoid discrimination by calling themselves kawata, a Japanese word that had no single way of writing, but which referred to their occupation as leather workers. Outcasts also included the hinin (非人, or literally, non-human) which referred to beggars, ex-convicts, vagrants, etc.73 These groups were thus considered inhuman and placed below the four-tiered class system of feudal Japan. As they were not included in any of the existing classes, they “were the objects of discrimination in every field of social life, such as occupation, housing, association, and clothing.”74 According to Neary, the discrimination against these groups was formally endorsed by the government during the Tokugawa regime:

“There is no doubt that discriminatory rules against the outcast groups were strengthened and universalized in the period between 1688 and 1735. Further, in 1778, central regulations attempted to define aspects of daily life so as to more clearly distinguish them from the peasantry or town dwellers. Central government documents usually refer to eta: hinin nado (literally ‘plentiful dirt’, ‘not people’, etc.) or eta: hinin nado no tagui (those like eta, hinin, etc.) At least until the 1720s, hinin could be reabsorbed into mainstream society, something that was not possible for eta, but after that time it became virtually impossible for hinin to escape their outcast state too. (…) In Hiroshima in 1781, for example, kawata were forced to change their hairstyles to make them immediately identifiable and bans were imposed to prevent them from drinking or smoking with or in the houses of commoners.”75

The descendants of these marginalised groups, nowadays known by the general and euphemistic term burakumin (部落民), a Japanese word that stands for ‘hamlet people’, became increasingly concentrated in areas

recognised as burakumin communities called Dōwa districts (同和地区) and still face a number of social discrimination even when they leave such communities. In fact, the Emancipation Proclamation, known as kaihōrei (解放令 or 穢多非人ノ称ヲ廃シ身分職業共平民同様トス) enacted in 12 October 1971, granted legal freedom from status discrimination to these outcast groups. However, according to Ruyle,76 “this was only a formal emancipation because there was no policy of guaranteeing actual emancipation in terms of improved social and economic conditions.”

Although the burakumin were politically active from the 1890s onwards, the Japanese Government was initially reluctant in attending the demands of this group and in adopting initiatives to reduce discrimination. The problems of the burakumin were only acknowledged by the government after the Rice Riots of 1918 (kome sōdō or 米騒動) and when the National Levelers Society (Zenkoku Suiheisha or 全国水平社) was formed in 1922.77 This movement demanded the fulfilment of the 1871 kaihōrei edict in its integrity, “including economic and occupational freedom, and protection of members’ human dignity.” It lost its power in the 1930s−1940s due to complications resulted from the wartime, but was revived as the Buraku Liberation League (Buraku Kaihō Dōmei or 部落解放同盟) in the 1950s.78 The Buraku Liberation League continued to pressure the government for programmes that could tackle the burakumin situation and, during the period of economic growth in the 1960s, was successful in persuading the state to provide funds for improving “streets, schools, clinics, and housing in burakumin communities” as well as “rent subsidies and other assistance to families in those communities”79 under the assistance program called the “Law on Special Measures for Dōwa Projects.”80

Nonetheless, in the past few years, several authors have argued that the burakumin issue is not a racial problem, since this group shares the same language, culture and ethnicity as the rest of the Japanese population and therefore they cannot be considered as pariahs. According to these authors, therefore, discrimination against the burakumin is a product of the social system and the “problem is not one of buraku liberation but liberation from the concept of buraku.”81 This has led some people to conclude that the “buraku history is now almost over,” that “there is no reason why the status or group should continue to exist” and therefore the government “should beware of creating structures that, while intended to help eradicate, in fact sustain the problem.”82 Based on these arguments and data revealing improvements in the situation of burakumin communities, the central government decided to cancel in 2002 a programme designed to support these groups. Some local governments, such as Osaka, continued to provide financial support in some specific programmes targeted in burakumin communities.83

Accusations of corruption and involvement of members of the Buraku Liberation League with criminal activities in recent years have eroded the public image of the movement. The situation has further deteriorated when Kunihiko Konishi, a leading member of the Osaka Buraku Liberation League, was arrested in 2006 and proved to be a member of Yamaguchi-gumi, Japan’s largest mob syndicate. As a result, the Buraku Liberation League decided to implement a reform to reorganise more than 2,000 of its branches in order to ensure the integrity and probity of its members and avoid links to organised crime.84 It would be unfair, however, to generalise the actions of Kunihiko Konishi or of other members of the movement and

blame the entire burakumin community. In fact, the Buraku Liberation League is one movement established to provide for the protection of the burakumin rights. The need to eliminate discrimination and improve the living conditions of the burakumin is a broader problem in Japanese society, which cannot be reduced to a simple analysis of the activities of the Buraku Liberation League or its members.

In fact, if compared to the rest of the Japanese population, burakumin living both inside and outside of their communities rely more heavily on welfare payments and receive lower salaries. Morgan85 contends that the burakumin currently accounts for an estimated three million people, but they “continue to face an array of problems, including low education levels, underemployment, and lack of access to large corporations because of employment discrimination.” They have restricted access to some education facilities and are frequently targets of bullying. Burakumin are said to face daily prejudice, which includes “graffiti, posters and Internet messages insulting buraku people treating them as dirty.” 86

Moreover, evidence supports that they still face difficulties in being accepted as marriage partners outside their communities. Burakumin can be recognised not only by their address, when they live in buraku communities, but also by their family names as registered in the koseki (戸籍), the Japanese family registry. The koseki system was formally established in the Meiji period and can be used to track down individual’s family background.87 In addition, a 1975 scandal revealed the existence of the so-called ‘Buraku-lists’, containing information such as the location of buraku communities and the name of households. These lists were prepared by private detectives and sold “to companies and potential marriage partners directories (…) to be used for discriminatory purposes.”88

These problems led to the enactment of a municipal ordinance in 1985 by the Osaka prefecture, which prohibited such type of discriminatory investigation. However, no legislation against discrimination has hitherto been passed at the national level.89

Finally, it is important to mention that despite the prejudice against the burakumin and the argument that this group should be liberated from being labelled as burakumin in order to suppress discrimination, the outcasts were essential for the development of the popular culture of Edo period. At that period, the hinin greatly improved their skills as street performers and entertainers, contributing to the emergence and consolidation of several expressions of art such as Kabuki (歌舞伎) and Bunraku (文楽), considered today as sophisticated art styles.90 Fowler91 also highlights the need to recognise the artistic value of recent buraku fiction literature, which “can hardly be divorced from the study of the buraku itself, any more than the buraku can be divorced from the rest of Japanese society.” It is questionable, therefore, whether invisibility should be the main goal to be pursued by burakumin to avoid prejudice. In fact, their role in Japanese history was pivotal for the development of many forms of cultural expressions:

“But if invisibility is a goal, this implies that the buraku community has nothing to offer in terms of its history, culture and particular experience, and this is not the case. In Kansai, the Naniwa buraku community celebrates its 300-year history with a 500-meter road showcasing the traditional buraku industries of leather work and taiko drum production. The road − lined with monuments to the community, information boards and taiko-

shaped benches − leads to the Osaka Human Rights Museum, where that other important aspect of buraku culture is investigated: its involvement in the human rights struggle, documented through the literature and art of those who have suffered often terrible discrimination.”92

4.2. The impact of non-litigiousness in the access to justice for minority groups As of today, Japan has no domestic law against discrimination.93 The country has signed major international treaties on human rights, notably the International Covenants on Civil and Political Rights (ICCPR), the International Covenants on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Nonetheless, neither the ICERD nor the Article 14 of the Constitution, which is “the only provision in national legislation which prohibits racial discrimination,” are considered by courts to be self-executing. As a result, currently there is “no provision in the national legislation that outlaws racial discrimination and provides a judicial remedy for the victims.”94

The United Nations assessment of the minorities situation in Japan published in 2006 called attention to the invisibility and lack of representation of these groups in the government and parliament and formulated several recommendations, including: “the recognition of the existence of racial discrimination in Japan, and the expression of the political will to combat it”, “the adoption of a national law against discrimination” and “focusing on the process of rewriting and teaching of history.”95

The Japanese Government, however, has been reluctant in adopting a proactive and targeted approach to address the problem. Hah and Lapp96 affirm that the state has historically been “extremely slow in defeudalising the norms governing the relationship between the burakumin and ordinary people.” Even nowadays, the absence of an anti-discrimination law and the argument that discrimination will eventually vanish as individuals became less attached to their burakumin background result in a somewhat lethargic attitude from both the government and society regarding the need for change. Some authors have argued that discrimination against burakumin will decrease as more non-burakumin start living in buraku communities and more burakumin move out from these communities to other places.97 Nonetheless, one should note that this geographical mobility is restricted by financial aspects, as life in buraku communities is often cheaper.98 Moreover, this does not represent a serious confrontation of the problem of discrimination, but rather an attempt to postpone it.

Although criticism has been directed to some civil society organised groups, in particular the Buraku Liberation League as discussed in the previous section, social movements are pivotal to enhance legal awareness of human rights among burakumin. According to Morgan:

“A strong liberation movement in Osaka has profoundly influenced the Buraku people to reveal their identity instead of hiding it. The philosophy of keeping quiet in the hopes that discrimination would disappear has been replaced by a

determination to stand up for one’s rights. In addition, because of the movement, Burakumin are probably more able to recognize discrimination, even in its more subtle forms.”99

Litigation is another important tool to promote change that has not been properly explored in Japan. Tolley Jr.100 contends that, in the US, the National Association for the Advancement of Colored People (NAACP), the American Civil Liberties Union (ACLU) as well as other interest groups have effectively used litigation to promote changes in government policy on racial segregation since the 1950s. In Japan, the number of cases filed in courts demanding compensation for discrimination against minority groups seems to be still very low.

Some of the best known cases brought to court on discrimination against minority groups in Japan include Ana Bortz’s lawsuit against a shop owner who demanded her to leave a store because she was a foreigner. The shop had a homemade poster in the wall which read: “no foreigners allowed in this store.” In the lawsuit, Ana Bortz argued that, although there was no anti-discrimination law in Japan, citizens have to abide by the ICERD provisions and the actions of the shop owner constituted a violation of her human rights. The Shizuoka District Court decided for the plaintiff on 12 October 1999, ordering the defendants to pay ¥1,500,000 (which corresponds to approximately U$ 12,500) in compensation.101

In another case, a burakumin was paid ¥5,000,000 (the equivalent of US$ 30,000) in compensation by his former fiancée “for breaking a 10-year relationship which entailed several postponements of marriage because of parental objection to her alleged Burakumin status.”102

It is true that litigation often involves complex legal procedures and is more expensive than other ways of dispute resolution.103 On top of that, it may create a permanent friction among the parties and is not free of trust and social costs. Nevertheless, Friedman stresses that, besides providing financial compensation for damage, litigation has considerable intangible vantages that should be taken into account:

“(…) it is striking that popular opinion and scholarly critiques alike put so much emphasis on hidden costs and side-effects, and show so little concern for hidden benefits. The benefits, to be sure, are often quite intangible and immeasurable: social justice; expanded opportunities for women and minorities, expansion of civil liberties, fair procedures within institutions, limits on government.”104

As discussed in Section 2, Japanese society demonstrates certain reluctance to file lawsuits and tends to prefer alternative ways of dispute resolution. Ginsburg and Hoetker105 argue that the number of lawsuits filed in Japan has increased in the past few years and that the Japanese society will make a broader use of the judiciary in the future, especially during periods of economic recession which leads to the disruption of business and interpersonal relations. However, a closer analysis of the data on the evolution of the judiciary caseload in recent years shows that summary courts were responsible for a great proportion of this increase (Figure 1). Summary courts in Japan “has the original jurisdiction over

civil cases involving claims for an amount not exceeding 1,400,000 yen” and “also handle civil conciliation cases and demands for payment.”106

Therefore, summary courts deal with civil cases demanding minor claims and tend to prioritise conciliation in dispute resolution. Moreover, these courts’ decisions often have limited function as persuasive or advisory precedents. Even though summary courts unquestionably play a pivotal role in society by providing legal consultation and solving a great number of minor civil disputes, they tend to heavily rely on conciliation and their decisions have limited political impact and social visibility. Accordingly, they may not be an effective mechanism to change the situation of minority groups, as they lack the necessary visibility to pressure the government and the parliament for new regulations or to change the mentality of the society.

In fact, some of the mechanisms used in Japan which, according to Tanase,107 are responsible for the non-litigationess of the Japanese society, notably “standardizing the compensation scheme,” are efficient in ensuring a reasonable compensation for damages, without the need of following complex and highly time-consuming procedures. To a certain extent, countries experiencing an excessive workload demand in their judiciary systems may consider emulating this scheme of standardised compensations to reduce the number of lawsuits filed. Nonetheless, some types of conflicts or disputes are intrinsically related to critical impasses of social life or to topics which still lack proper legal regulation. In these situations, litigation provides an important ground not only for solving the dispute in question, but also to stimulate social debate, promote the involvement of politicians and government officials and pressure for the enactment of new regulations.

As already mentioned, enforcing the rights of minority groups is a complex task because it involves challenging social beliefs and struggling against symbolic violence. Therefore, it is necessary not only to promote the legal awareness and empowerment of minority groups, but also to properly educate the entire society, to trigger a comprehensive process of changing people’s mindset. This is a gradual and long-term process and it should accordingly be approached in various ways, including social mobilisation, political participation and litigation. 5 Conclusions This paper discussed whether the Japanese tendency towards non-litigation may hinder access to justice for minority groups in Japan. In fact, Japanese people tend to have an inclination to rely on alternative ways of dispute resolution and to be reluctant to bring their claims to court. Although there was an increase in court caseload in Japan in recent years, one should note that most of new cases were brought to summary courts, which also deal with civil conciliation.

As of today, minority groups still face great discrimination in Japan. One of such groups is the burakumin which, throughout Japanese history,

has been the target of prejudice in several areas of social life. They have difficulties in entering certain schools, getting employed in large companies or being accepted as marriage partners of non-burakumin citizens.

In view of such circumstances, this paper argues for more legal empowerment and access to justice for minority groups in Japan. Although civil mobilisation and political participation are important mechanisms to change the Japanese society’s mentality regarding the problem of discrimination against burakumin, litigation is another channel that should be explored by this minority group to protect and enforce their rights. On top of that, even though non-confrontational types of dispute resolution may be an effective and less time-consuming way to solve a number of civil disputes, several cases of discrimination demand a confrontational approach in court.

It is necessary, therefore, to create programmes to increase legal awareness and access to justice for minorities in Japan. Challenging symbolic violence and changing society’s mindset is a continuous and long-term process that should be tackled through different approaches. The legal empowerment of minority group is certainly one important way to protect human rights and help educating society regarding the need to promote better integration of these groups. Notes 1 Rouland, N. (1995) Legal Anthropology, p.2, The Athlone Press,

London. 2 Neary, I.J. (2003) ‘‘Burakumin’ at the end of history’, Social

Research, Vol. 70, No. 1, pp.269−294; Yamaguchi, M. (2004) ‘‘Burakumin’ descendants still suffering: links to former outcast class bring misery to relationships, workplace’, The Japan Times, 5 June 2004 [online] http://www.japantimes.co.jp/2004/06/05/announcements/burakumin-descendants-still-suffering/#.UY55lcpWq4Q (accessed 11 May 2013); Diène, D. (2006) Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Doudou Diène, on His Mission to Japan, United Nations, Economic and Social Council, Commission on Human Rights, New York.

3 Ministry of Internal Affairs and Communications (2013) ‘Population’, in Statistical Handbook of Japan 2012, Statistics Bureau [online] http://www.stat.go.jp/english/data/handbook/c02cont.htm (accessed 25 May 2013).

4 Ministry of Justice (2011) Todōfuken Betsukokuseki (shusshinchi) Betsugaikokujin Tourokusha 都道府県別国籍（出身地）別外国人登録者 [online] http://www.e-stat.go.jp/ SG1/estat/List.do?lid=000001089591 (accessed 28 May 2013).

5 Hockings, P. (1993) Encyclopedia of World Cultures – Volume V: East and Southeast Asia, pp.58−59, G.K. Hall & Company, New York.

6 Neary, I.J. (2009) ‘Burakumin in contemporary Japan’, in Weiner, M. (Ed.): Japan’s Minorities: The Illusion of Homogeneity, 2nd ed., pp.59−83, Routledge, New York; Priestley, I. (2009) ‘Breaking the silence on burakumin: minority community has plenty to offer’, The Japan Times, 20 January 2009 [online] http://www.japantimes.co.jp/community/2009/01/20/issues/breaking-the-silence-on-burakumin-2/ (accessed 28 May 2013).

7 Sugimoto, Y. (1997) An Introduction to Japanese Society, p.7, Cambridge University Press, Cambridge.

8 Friedman, L.M. (1989) ‘Litigation and society’, Annual Review of Sociology, Vol. 15, pp.17−29.

9 Pye, L.W. (1985) Asian Power and Politics: The Cultural Dimensions of Authority, p.179, The Belknap Press of Harvard University Press, Massachusetts; Tanase, T. (1990) ‘The management of disputes: automobile accident compensation in Japan’, Law & Society Review, Vol. 24, No. 3, pp.651−691; Nottage, L. (2008) ‘The cultural (re)turn in Japanese law studies’, Victoria University of Wellington Law Review, Vol. 39, No. 4, pp.755−778; Ramseyer, J.M. and Rasmusen, E.B. (2010) ‘Comparative litigation rates’, Discussion Paper No. 681, p.9, Cambridge, The John M. Olin Center for Law, Economics, and Business, Harvard Law School.

10 Ginsburg, T. and Hoetker, G. (2006) ‘The unreluctant litigant? An empirical analysis of Japan’s turn to litigation’, The Journal of Legal Studies, Vol. 35, No. 1, pp.31−59.

11 Supreme Court of Japan (2013) Statistical Table [online] http://www.courts.go.jp/english/ publications/statistical_table/index.html (accessed 18 May 2013). Note: Only part of the cases filed in Japan are catalogued by courts as ‘litigation suits’ (see Ramseyer, J.M. and Rasmusen, E.B. (2010) ‘Comparative litigation rates’, Discussion Paper No. 681, p.8, Cambridge, The John M. Olin Center for Law, Economics, and Business, Harvard Law School).

12 Ramseyer, J.M. and Rasmusen, E.B. (2010) ‘Comparative litigation rates’, Discussion Paper No. 681, p.5, Cambridge, The John M. Olin Center for Law, Economics, and Business, Harvard Law School.

13 Luney, P.R. Jr. (1989) ‘Traditions and foreign influences: systems of law in China and Japan’, Law and Contemporary Problems, Vol. 52, No. 2, pp.129−150, 144−147.

14 Ibid, p.147 15 Ibid, p.148. 16 Haley, J.O. (1991) Authority without Power: Law and the Japanese

Paradox, p.148, Oxford University Press, New York; Glenn, H.P. (2000) Legal Traditions of the World, p.304, Oxford University Press, New York.

17 Dore, R. (2000) Stock Market Capitalism: Welfare Capitalism – Japan and Germany Versus the Anglo-Saxons, Oxford University Press, New York; Tanase, T. (2006) ‘Global markets and the evolution of law in

China and Japan’, Michigan Journal of International Law, Vol. 27, No. 3, pp.873−893.

18 Tanase, T. (2006) ‘Global markets and the evolution of law in China and Japan’, Michigan Journal of International Law, Vol. 27, No. 3, pp.873−893, 86.

19 Matsui, S. (2012) ‘Turbulence ahead: the future of law schools in Japan’, Journal of Legal Education, Vol. 62, No. 1, pp.3−31, 3.

20 Ginsburg, T. and Hoetker, G. (2006) ‘The unreluctant litigant? An empirical analysis of Japan’s turn to litigation’, The Journal of Legal Studies, Vol. 35, No. 1, pp.31−59, 36.

21 Ibid, p.39−41. 22 Ibid, p.37; Johnson, C. (1982) MITI and the Japanese Miracle: The

Growth of Industrial Policy, 1925−1975, p.62, Stanford University Press, Stanford.

23 Pye, L.W. (1985) Asian Power and Politics: The Cultural Dimensions of Authority, p.179, The Belknap Press of Harvard University Press, Massachusetts; Tanase, T. (1990) ‘The management of disputes: automobile accident compensation in Japan’, Law & Society Review, Vol. 24, No. 3, pp.651−691, 653−654; Ginsburg, T. and Hoetker, G. (2006) ‘The unreluctant litigant? An empirical analysis of Japan’s turn to litigation’, The Journal of Legal Studies, Vol. 35, No. 1, pp.31−59, 33−34; Puchniak, D.W. (2012) ‘Japan’s love for derivative actions: irrational behavior and non-economic motives as rational explanations for shareholder litigation’, Vanderbilt Journal of Transnational Law, Vol. 45, No. 1, pp.1−82, 4−5.

24 Tanase, T. (2001) ‘The empty space of the modern in Japanese law discourse’, in Nelken, D. and Feest, J. (Eds.): Adapting Legal Cultures, pp.187−198, 196, Hart Publishing, Oxford.

25 Tanase, T. (1990) ‘The management of disputes: automobile accident compensation in Japan’, Law & Society Review, Vol. 24, No. 3, pp.651−691, 678−679.

26 Ibid, p.678. 27 North, D.C. (1990) Institutions, Institutional Change and Economic

Performance, p.3, Cambridge University Press, New York. 28 North, D.C. (1991) ‘Institutions’, Journal of Economic Perspectives,

Vol. 5, No. 1, pp97−112. 29 Legrand, P. (2001) ‘What ‘legal transplants’?’, in Nelken, D. and

Feest, J. (Eds.): Adapting Legal Cultures, pp.55−70, Hart Publishing, Oxford.

30 Johnson, C. (1982) MITI and the Japanese Miracle: The Growth of Industrial Policy, 1925−1975, p.239, Stanford University Press, Stanford.

31 Dore, R. (2000) Stock Market Capitalism: Welfare Capitalism – Japan and Germany Versus the Anglo-Saxons, pp5−58, Oxford University Press, New York.

32 Tanase, T. (1990) ‘The management of disputes: automobile accident compensation in Japan’, Law & Society Review, Vol. 24, No. 3, pp.651−691

33 Haley, J.O. (1991) Authority without Power: Law and the Japanese Paradox, p.13, Oxford University Press, New York.

34 Ibid, p.163. 35 Ibid, p.13. 36 Sato, Y. (2001) Commercial Dispute Processing and Japan,

pp.117−118, Kluwer Law International, New York. 37 Ibid, p.117. 38 Haley, J.O. (1978) ‘The myth of the reluctant litigant’, Journal of

Japanese Studies, Vol. 4, No. 2, pp.359−390, 381. 39 Ginsburg, T. and Hoetker, G. (2006) ‘The unreluctant litigant? An

empirical analysis of Japan’s turn to litigation’, The Journal of Legal Studies, Vol. 35, No. 1, pp.31−59, 52.

40 International Center for Environmental Technology Transfer (ICETT) (1998) The History of Pollution and Environment Restoration in Yokkaichi – For the Sake of the Global Environment, ICETT, Yokkaichi.

41 Upham, F.K. (1976) ‘Litigation and moral consciousness in Japan: an interpretive analysis of four Japanese pollution suits’, Law & Society Review, Vol. 10, No. 4, pp579−619, 588.

42 Sato, Y. (2001) Commercial Dispute Processing and Japan, 124, Kluwer Law International, New York.

43 Ibid, p.125. 44 Ginsburg, T. and Hoetker, G. (2006) ‘The unreluctant litigant? An

empirical analysis of Japan’s turn to litigation’, The Journal of Legal Studies, Vol. 35, No. 1, pp.31−59, 56.

45 United Nations Human Rights (2010) Minority Rights: International Standards and Guidance for Implementation, pp.2−4, United Nations, New York.

46 United Nations Development Programme (UNDP) (2009) Access to Justice: Report on the UNDP access to justice survey in Europe and the Commonwealth of Independent States, p.9, UNDP, Slovak Republic.

47 UNDP (2004) Access to Justice: Practice Note [online] http://www.undp.org/content/ dam/aplaws/publication/en/publications/democratic-governance/dg-publications-for-website/access-to-justice-practice-note/Justice_PN_En.pdf (accessed 19 May 2013), p.7.

48 Hackmann, C. (2012) ‘Legal empowerment of the poor and its relation to pro-poor growth’, in Organisation for Economic Co-operation and Development (OECD) Poverty Reduction and Pro-Poor Growth: The Role of Empowerment, OECD Publishing, pp201−224 [online] http://www.oecd-ilibrary.org/development/poverty-reduction-and-pro-

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49 UNDP (2004) Access to Justice: Practice Note [online]

http://www.undp.org/content/dam/ aplaws/publication/en/publications/democratic-governance/dg-publications-for-website/ access-to-justice-practice-note/Justice_PN_En.pdf (accessed 19 May 2013), p.7.

50 Maru, V. (2009) ‘Access to justice and legal empowerment: a review of World Bank practice’, Justice & Development Working Paper Series, p.10, Washington, Legal Vice Presidency, The World Bank.

51 UNDP (2004) Access to Justice: Practice Note [online] http://www.undp.org/content/dam/ aplaws/publication/en/publications/democratic-governance/dg-publications-for-website/ access-to-justice-practice-note/Justice_PN_En.pdf (accessed 19 May 2013), p.12.

52 UNDP (2010) Access to Justice in Asia and the Pacific: A DGTTF Comparative Experience Note Covering Projects in Cambodia, India, Indonesia and Sri Lanka, p.10, UNDP, New York.

53 UNDP (2004) Access to Justice: Practice Note [online] http://www.undp.org/content/dam/aplaws/publication/en/publications/democratic-governance/dg-publications-for-website/access-to-justice-practice-note/Justice_PN_En.pdf (accessed 9 May 2013), pp.3−4.

54 Asian Development Bank (2009) Legal Empowerment for Women and Disadvantaged Groups, p.10, Asian Development Bank, The Philippines; Sheldrick, B.M. (2012) ‘Access to justice and legal empowerment as vehicles of poverty alleviation: governance challenges to linking legal structures to social change’, Legal Working Paper Series on Legal Empowerment for Sustainable Development, p.5, Centre for International Sustainable Development Law, Quebec.

55 Commission on Legal Empowerment of the Poor (2008) Making the Law Work for Everyone – Volume I: Report of the Commission on Legal Empowerment of the Poor, p.2, Commission on Legal Empowerment of the Poor and UNDP, New York.

56 Banik, D. (2009) ‘Legal empowerment as a conceptual and operational tool in poverty eradication’, Hague Journal on the Rule of Law, Vol. 1, No. 1, pp.117–131, 130−131.

57 Agrast, M.D., Botero, J.C., Martinez, J., Ponce, A. and Pratt, C.S. (2013) WJP Rule of Law Index 2012−2013, p.27, The World Justice Project, Washington.

58 Ibid, p.103. 59 The World Bank (2013) Doing Business 2013: Smarter Regulations

for Small and Medium-Size Enterprises, p.3, The World Bank, Washington.

60 Ibid, p.172. 61 Ibid, p.5.

62 UNDP (2013) Human Development Report 2013 – The Rise of the South: Human Progress in a Diverse World Empowered Lives, p.203, UNDP, New York.

63 Ibid, pp.144−194. 64 UNDP (2004) Access to Justice: Practice Note [online]

http://www.undp.org/content/dam/ aplaws/publication/en/publications/democratic-governance/dg-publications-for-website/ access-to-justice-practice-note/Justice_PN_En.pdf (accessed 19 May 2013), p.6; UNDP (2010) Access to Justice in Asia and the Pacific: A DGTTF Comparative Experience Note Covering Projects in Cambodia, India, Indonesia and Sri Lanka, UNDP, New York.

65 Mattei, U. (2007) ‘Access to justice. A renewed global issue?’, Electronic Journal of Comparative Law, Vol. 11, No. 3, pp.1−25.

66 Ibid, pp.2−4. 67 Ibid, pp.13−14. 68 Bourdieu, P. and Wacquant, L.J.D. (1992) An Invitation to Reflexive

Sociology, p.167, Polity Press, Cambridge. 69 Ibid, p.168. 70 Jenkins, R. (1992) Pierre Bourdieu, p.104, Routledge, London. 71 Hockings, P. (1993) Encyclopedia of World Cultures – Volume V: East

and Southeast Asia, p.59, G.K. Hall & Company, New York. 72 Hah, C-D. and Lapp, C.C. (1978) ‘Japanese politics of equality in

transition: the case of the burakumin’, Asian Survey, Vol. 18, No. 5, pp.487−504, 488; Shimahara, N. (1984) ‘Toward the equality of a Japanese minority: the case of burakumin’, Comparative Education, Vol. 20, No. 3, pp.339−353, 340−341; Neary, I.J. (2003) ‘‘Burakumin’ at the end of history’, Social Research, Vol. 70, No. 1, pp.269−294, 278; Morgan, C.V. (2007) ‘A case study of buraku and non-buraku couples in Japan’, Journal of Comparative Family Studies, Vol. 38, No. 1, pp.31−54, 33.

73 Pereira, R.A. (1992) ‘Internacionalização e minorias no Japão. Considerações sobre o caso Kajiyama’, Estudos Afro-Asiáticos, Vol. 22, pp.117−126, 119; Neary, I.J. (2003) ‘‘Burakumin’ at the end of history’, Social Research, Vol. 70, No. 1, pp.269−294, 279−280.

74 Ruyle, E.E. (1979) ‘Conflicting Japanese interpretations of the outcaste problem ‘(buraku mondai)’, American Ethnologist, Vol. 6, No. 1, pp.55−72, 56; Neary, I.J. (2009) ‘Burakumin in contemporary Japan’, in Weiner, M. (Ed.): Japan’s Minorities: The illusion of Homogeneity, 2nd ed., p.61, Routledge, New York.

75 Neary, I.J. (2003) ‘‘Burakumin’ at the end of history’, Social Research, Vol. 70, No. 1, pp.269−294, 277−280.

76 Ruyle, E.E. (1979) ‘Conflicting Japanese interpretations of the outcaste problem ‘(buraku mondai)’, American Ethnologist, Vol. 6, No. 1, pp.55−72, 56.

77 Shimahara, N. (1984) ‘Toward the equality of a Japanese minority: the case of burakumin’, Comparative Education, Vol. 20, No. 3,

pp.339−353, 341; Ruyle, E.E. (1979) ‘Conflicting Japanese interpretations of the outcaste problem ‘(buraku mondai)’, American Ethnologist, Vol. 6, No. 1, pp.55−72, 56; Neary, I.J. (2003) ‘‘Burakumin’ at the end of history’, Social Research, Vol. 70, No. 1, pp.269−294, 270−271.

78 Neary, I.J. (2009) ‘Burakumin in contemporary Japan’, in Weiner, M. (Ed.): Japan’s Minorities: The Illusion of Homogeneity, 2nd ed., pp.59−83, 60, Routledge, New York.

79 Neary, I.J. (2003) ‘‘Burakumin’ at the end of history’, Social Research, Vol. 70, No. 1, pp.269−294, 270−271.

80 Morgan, C.V. (2007) ‘A case study of buraku and non-buraku couples in Japan’, Journal of Comparative Family Studies, Vol. 38, No. 1, pp.31−54, 34.

81 Shimahara, Nobuo (1984) ‘Toward the equality of a Japanese minority: the case of burakumin’, Comparative Education, Vol. 20, No. 3, pp.339−353, 340; Neary, I.J. (2003) ‘‘Burakumin’ at the end of history’, Social Research, Vol. 70, No. 1, pp.269−294, 283.

82 Neary, I.J. (2003) ‘‘Burakumin’ at the end of history’, Social Research, Vol. 70, No. 1, pp.269−294, 286.

83 Ibid, pp.290−291. 84 Priestley, I. (2009) ‘Breaking the silence on burakumin: minority

community has plenty to offer’, The Japan Times, 20 January 2009 [online] http://www.japantimes.co.jp/community/ 2009/01/20/issues/breaking-the-silence-on-burakumin-2/ (accessed 28 May 2013).

85 Morgan, C.V. (2007) ‘A case study of buraku and non-buraku couples in Japan’, Journal of Comparative Family Studies, Vol. 38, No. 1, pp.31−54, 34.

86 Diène, D. (2006) Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Doudou Diène, on His Mission to Japan, p.11, United Nations, Economic and Social Council, Commission on Human Rights, New York.

87 Neary, I.J. (2003) ‘‘Burakumin’ at the end of history’, Social Research, Vol. 70, No. 1, pp.269−294, 288−289; Morgan, C.V. (2007) ‘A case study of buraku and non-buraku couples in Japan’, Journal of Comparative Family Studies, Vol. 38, No. 1, pp.31−54, 35−40.

88 Diène, D. (2006) Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Doudou Diène, On His Mission To Japan, p.8, United Nations, Economic and Social Council, Commission on Human Rights, New York.

89 Ibid, p.8; Neary, I.J. (2003) ‘‘Burakumin’ at the end of history’, Social

Research, Vol. 70, No. 1, pp.269−294, 271. 90 Neary, I.J. (2003) ‘‘Burakumin’ at the end of history’, Social

Research, Vol. 70, No. 1, pp.269−294, 280. 91 Fowler, E. (2000) ‘the Buraku in modern Japanese literature: texts and

contexts’, Journal of Japanese Studies, Vol. 26, No. 1, pp.1−39, 37−39.

92 Priestley, I. (2009) ‘Breaking the silence on burakumin: Minority community has plenty to offer’, The Japan Times, 20 January 2009 [online] http://www.japantimes.co.jp/ community/2009/01/20/issues/breaking-the-silence-on-burakumin-2/ (accessed 28 May 2013).

93 Yamanaka, K. (2002) ‘Ana Bortz’s law suit and minority rights in Japan’, JPRI Working Paper No. 88, Oakland, Japan Policy Research Institute [online] http://www.jpri.org/ publications/workingpapers/wp88.html (accessed 25 May 2013); Neary, I.J. (2003) ‘‘Burakumin’ at the end of history’, Social Research, Vol. 70, No. 1, pp.269−294, 271; Diène, D. (2006) Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Doudou Diène, on his Mission to Japan, p.7, United Nations, Economic and Social Council, Commission on Human Rights, New York.

94 Diène, D. (2006) Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Doudou Diène, on his Mission to Japan, pp.6−7, United Nations, Economic and Social Council, Commission on Human Rights, New York.

95 Ibid, pp.2, 18. 96 Hah, C-D. and Lapp, C.C. (1978) ‘Japanese politics of equality in

transition: the case of the burakumin’, Asian Survey, Vol. 18, No. 5, pp.487−504, 503.

97 Priestley, I. (2009) ‘Breaking the silence on burakumin: Minority community has plenty to offer’, The Japan Times, 20 January 2009 [online] http://www.japantimes.co.jp/community/ 2009/01/20/issues/breaking-the-silence-on-burakumin-2/ (accessed 28 May 2013).

98 Morgan, C.V. (2007) ‘A case study of buraku and non-buraku couples in Japan’, Journal of Comparative Family Studies, Vol. 38, No. 1, pp.31−54, 35.

99 Ibid, p.38. 100 Tolley, H. Jr. (1991) ‘Interest group litigation to enforce human

rights’, Political Science Quarterly, Vol. 105, No. 4, pp.617−638, 617. 101 Yamanaka, K. (2002) ‘Ana Bortz’s law suit and minority rights in

Japan’, JPRI Working Paper No. 88, Oakland, Japan Policy Research

[online] http://www.jpri.org/publications/ workingpapers/wp88.html (accessed 25 May 2013).

102 Degawa, M. (2001) ‘Racism without race? The case of Japan’s invisible group’, Master’s thesis. Ontario, Canada, Queen’s University, Department of Sociology, p.29.

103 Friedman, L.M. (1989) ‘Litigation and society’, Annual Review of Sociology, Vol. 15, pp.17−29, 20.

104 Ibid, p.27. 105 Ginsburg, T. and Hoetker, G. (2006) ‘The unreluctant litigant? An

empirical analysis of Japan’s turn to litigation’, The Journal of Legal Studies, Vol. 35, No. 1, pp.31−59.

106 Supreme Court of Japan (2010) ‘Overview of the judicial system in Japan’, [online] http://www.courts.go.jp/english/judicial_sys/overview_of/overview/index.html#01 (accessed 1 June 2013); Japan Federation of Bar Associations (2013) ‘The Japanese judicial system’ [online] http://www.nichibenren.or.jp/en/about/judicial_system/judicial_system.html (accessed 1 June 2013).

107 Tanase, T. (2006) ‘Global markets and the evolution of law in China and Japan’, Michigan Journal of International Law, Vol. 27, No. 3, pp.873−893, 660.