Washington International Law Journal


In 1967, Professor Kawashima wrote about a world of vaguely defined rights and norms in Japan. This article argues that world still exists. But it now co-exists with a world that commonly defines rights, in great detail, and regularly invokes them. There are layers of the law in Japan. Primary ordering of relationships and services is often based on complex, legalistic contracts and regulation; secondary ordering is often based on equity, Japanese notions of equity. Examples from contract, employment, and environmental law and practice illustrate this. For each, this paper examines both sides of the coin—transactional ordering and litigated outcomes. Leases may be so detailed that they address liability for a broken toilet paper holder. Yet, if challenged in court, leases may be re-written to reflect current economic circumstances or the “consensus of society.” Employment contracts may start with indemnification requirements and end with termination rights, but if they are litigated, the courts will look for just cause. Volumes of regulation govern when a nuclear reactor may operate, but the final decision is based on a “gentlemen’s agreement” and local consensus. As a result, negotiation occurs first in the shadow of detailed rights and obligations, and, if contested, then in the shadow of law, equity, and local consensus. The role of law in Japan has changed enormously since 1967, and will change in the decades to come, but an accurate description of what it is now starts with Professor Kawashima’s discussion of vaguely-defined rights and an understanding of the layers of the law described in this paper.

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