Mark D. West likes things that begin with the letter "S". His book on Law in Everyday Japan finds law in some unexpected places, related together by little except their first letter: Sex, Sumo, and Suicide. His second book on The Rules of Scandal in Japan and the United States complete the series with three additional entries: Secrets, Sex (again), and Spectacle. His third book, published recently and which I haven't had the chance to peruse yet, revisits the issue of Sex (a constant preoccupation for the author, although Japanese adults are said to lack an interest for the practice of it) in relation to Marriage, Romance, and Law.
Apart from words starting with "S", there is a common thread that runs through West's writings on Japan, one that may be summarized with a single word: curiosity. The author is never satisfied with standard explanations of why things are the way they are, and he always wants to know more about the intricacies of Japan's everyday life. This attitude, quite unexpected for grown-up Japanese citizen, is even more uncommon for a foreigner. Even long term foreign residents in Japan usually contend themselves with a narrow angle on Japanese society. Some may acquire expertise in a narrow field or hobby, be it sumo, Japanese-style baseball, samurai swords, or the yakuza underworld. Scores of books in English address these issues, and there are generally well researched. But it is much more uncommon to find a book that addresses the issues of love hotels, karaoke, earthquakes, and lost-and-found objects, and that does so from a legal perspective. Again, economists have accustomed us to find economics in about every social corner, and to apply economic lenses to a variety of phenomena. But lawyers usually stick to their knitting; books engaging readers to discover "their inner lawyer", or bringing "Freaklegalism" to a wide public, have yet to appear on the mass market.
Mark D. West therefore writes in a genre that is not crowded by previous entries. Law in Japan is a small cottage industry in American law schools, but it usually limits itself to narrow questions: why are there so few lawsuits in Japan, or will the number of lawyers increase with the reform of the legal studies curriculum in Japanese universities. According to West, "If we really want to know how law works in Japanese society, we should study things other than lawsuits and lawyers." Trained as a lawyer but also with strong background in economics and a good command of the Japanese language, he was determine to deviate from the trodden path and to assuage his curiosity for everything Japanese. His quest sent him in unexpected places: "I visited sumo stables to learn about sumo rules, lost objects to learn about the lost-and-found system, visited debt counselors to learn about debt-suicide, toured Kobe condominium rubble to learn about reconstruction, and helped love hotel cleaning staff hunt for semen stains with black lights to learn about the love hotel trade." The result is a quite unique book that will lead its readers, familiar with Japan or otherwise, to reconsider their ideas about the land of the rising sun.
Take the lost-and-found system for example. "My central claim, West writes, is that the Japanese lost property system works well in large part because of well-designed formal institutions that efficiently allocate and enforce possessory rights." The law provides a simple system of carrots and sticks. When one finds lost property in Japan, the first place to visit is often the local police box, or kôban. The ubiquity of the kôban helps ingrain law-supporting behavior in everyday Japan from childhood, an observation already made by Ezra Vogel in his Japan As Number One. In the case of lost-and-found, kôban police and related officials take extra care to advertise the potential economic rewards of submitting lost property. Compared to the Japanese system, the U.S. lost-property legal regime is complex and unpredictable. A parallel experiment of a wallet dropped in front of a Japanese store in New York failed to yield similar return rates among Japanese residents as was observed in Tokyo. When in Rome, away from the dense web of rules and obligations that characterizes their home country, Japanese do as the Romans do.
Compared to the analysis of the lost-and-found system, the chapter on sumo lacks focus and fails to develop a single line of reasoning. The author attempts to describe the "myriad of formal legal rules and informal norms that sumo has developed outside the usual confines of the law to structure and define its internal relationships". As a research piece, this chapter cannot compare favorably with the famous paper by Steven D. Levitt, of Freakonomics fame, on the economics of yaochô, or match rigging among sumo wrestlers. It is based on the premise that "most people, even in Japan, do not know what makes sumo tick--how wrestlers organize, how they make their money, and how that money is distributed." But that contention is no longer true: the inner workings of the Japan Sumo Association were exposed by a recent spate of scandals, and it wasn't a pretty sight. As one should not enter the kitchen of a restaurant for fear of ruining the dining experience, attending a training session in a sumo stable exposes the visitor to the shady interior of the sumo world--with the bossing around by the stablemaster, the humiliating status of junior wrestlers, and the potent mix of dirt, sweat and fear that drives the athletes to the point of exhaustion. For once, I agree with the private statement uttered by Nicolas Sarkozy in the run-up to the 2007 French presidential election: "How can anyone be fascinated by these battles between fat men with slicked-sown ponytails? Sumo wrestling is really not a sport for intellectuals."
The two following cases, on disputes filed in court for karaoke noise pollution and on the regulation of the love hotel industry, introduce the reader to two familiar Japanese institutions--although it is not customary to view them from a legal angle. Karaoke noise disputes, like virtually all noise pollution disputes in Japan, are usually resolved before they reach the litigation stage using a bureaucratic pollution complaint resolution mechanism led by "pollution complaint counselors". Karaoke disputes are familiar and allow glimpses of everyday behavior of individuals in Japan. People are said to abide by the rules and value harmony, but in some areas Japan is not a model of consensus: it is a model of bitter, hard-fought, lengthy feuds. Use of the pollution complaint mechanism defuse these tensions before they ruin the social cohesion of a neighborhood. They appear to be a function of both self-interest, institutionally encouraged behavior and social norms. As for love hotels, although law did not create their trade, it influences significantly their numbers, locations, and forms. A new legislation that was conceived to limit their activity paradoxically ushered in a new era of prosperity and growth for them.
Other chapters in the book dwell on condominiums affected by the 1995 Kobe earthquake, the limitations of working hours, and the complex relation between suicide, debt, and insolvency law in Japan (as it should be clear by now, the author by no means restrains himself to themes beginning by the letter "S": it was just an editor's ploy). The general idea is that "Japan can't be boiled down to a few exotic Japanese keywords that explain everyone's behavior." As a result, there will be no discussion here on tatemae and honne (facade opinions displayed in public as opposed to a person's true feeling), giri and ninjô (social obligation and the heart's inclination), hare and kegare (the pure and the soiled). Nor will one meet with the exotic figures that are now obligatory parts of the tourism circuit: maid cafés and cosplay restaurants, anime otaku and manga fairs, hentai people of various perversions and the surprising social tolerance for their deviations.
The last chapter draws some general conclusions. Law exists in many places in everyday Japan, and so do social norms, which interact with law in many different ways. These institutions are not only plentiful: they actually matter. They shape incentives and rewards, and people respond to these incentives. These conclusions should come as no surprise for economists and social scientists, but they go against the grain of the established view of the Japanese society, which maintains that "relationships prevail over legal rules, social custom over common law, and harmonious consensus over lawsuits". After all, one would think that Japan could do without legal rules for the trivial (lost-and-found items), the amusing (karaoke), the intimate (love hotels), and close-knit groups (sumo). That law matters in these areas suggest a pervasive influence in everyday Japan.