THE RITUAL OF RIGHTS IN JAPAN: LAW, SOCIETY, AND HEALTH POLICY by Eric Feldman. New York: Cambridge University Press, 2000. Cloth $64.95. ISBN 0-521-77040-8. Paper $23.95. ISBN 0-521-77964-2.

Reviewed by Stephan M. Salzberg, Faculty of Law, University of British Columbia.

In this book, Eric Feldman sets out to show that Japan is a society where there is social conflict and that parties to those conflicts, especially aggrieved groups, employ the language of rights as part of their conflict behavior. Moreover, through the examples he has chosen in the area of health policy, Feldman shows that these groups also sometimes assert their perceived rights in the courts and elsewhere.

Feldman's primary purpose is to refute what he takes to be the widely held view that Japanese society is, and has been, one with little or no social conflict, and one in which rights make little or no difference. Feldman suggests that this misconception is based on an understanding of rights that is too narrowly restricted and focused primarily on the assertion of rights by individuals in courts. He argues that it is only when one takes a broader view of rights, what they mean and how they are asserted, that one can begin to understand the sociolegal reality of Japan and, by extension, other societies, on their own terms. In an interesting discussion in the final chapter, Feldman further argues that the colonial tinge of transplantation and development theory has contributed to the durability of the myth that rights don't matter in Japan (yet).

The basic argument of the book, that rights do in fact matter in Japan, is not, as Feldman himself recognizes, a new one. This reader also wonders whether the claimed central misconception about Japan is in fact still widely held. That misconception has, as Feldman also points out, been refuted convincingly through the work (in English) of John Haley, Frank Upham and J. Mark Ramseyer. This book will serve, one hopes, to make a broader audience aware of that work.

What then is new about this book? For one it is the information and data that Feldman presents concerning the invocation and assertion of rights with respect to issues surrounding brain death and organ transplantation, the formulation of AIDS policy and the situation of hemophiliac recipients of HIV- tainted blood products. The book's theoretical contribution, as discussed below, is less apparent.

Feldman advances his argument in the course of seven chapters. Each chapter is short, as is the book as a whole, and there are many points throughout that one wishes had been explored more fully and in greater depth. In his first chapter, "Reconsidering Rights in Japanese Society", Feldman introduces some of the literature that, in Feldman's view, reflects the above noted misconception about Japan: that conflict and notions of rights are subsumed in favor of group harmony. This, says Feldman, is a traditional view of Japanese society, held

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and propagated by those who would assert Japan's "uniqueness". In the realm of comparative sociolegal studies, this distorted, or at least incomplete, view is seen to be reinforced by comparison to an equally inaccurate characterization of the United States (to which Japan is most frequently compared) as a society irredeemably bent on litigating everything.

At the heart of these inaccurate descriptions and inapt comparisons, argues Feldman, is a misplaced reliance on jurisprudential ideas and cultural myths about rights. Instead, this book is said to focus on "the interplay between cultural myths about rights and the strategic assertion of rights" (p. 5). What Feldman would apply, and one could not agree more with this ambition, is "an empirical or case approach that examines who asserts rights, why, and with what effect" (p. 5). The problem is that Feldman's case studies fall quite short of answering those questions, in part because so much effort is spent refuting the belief that rights don't matter in Japan. For those of us who have spent time studying and thinking about Japanese law and society, that is an argument that no longer needs refuting, a point that Feldman readily admits (p. 164). One wonders whether so much space and effort should be expended convincing other readers, even if they labor under that misconception, when so many other possible insights beckon.

The first step in refuting the "conventional" view comes in Chapter 2, a review of the work of historians who have written of the rich history of group dissent in Japan's pre-modern era and a very brief survey of ideas about rights in the modern era, after 1868. In Tokugawa Japan (1603-1868), peasants would regularly, loudly and publicly voice their grievances, even engaging in rebellion to gain relief. Feldman's point is the continuity of Japanese history, a refutation of the "conventionally accepted view" that a concept of "rights" came only with the modern era. A notion of rights, says Feldman, long predates use of the word KENRI, coined in the 1860s as an equivalent to the word "rights" as it appeared in European codes. It is here that one of the book's problems begins to emerge. What does Feldman mean by the term "rights", especially when he applies it to the supposed thoughts, motivations and the reported actions of those who lived before the word came to be used, or those who used the word KENRI, or even those who currently invoke the word? In a work that deals with very subtle questions of translation, and transplantation, across fields of space and time, culture and language, the word must be used with precision. Unfortunately, it is not. Feldman refers to Tokugawa period peasant uprisings, for instance, as based upon a "general sense of rights." Elsewhere Feldman speaks of "rights-like" notions. Does this mean a sense of being right, of fairness, of justice, or of something else?

More explication and a more precise definition are needed. If Feldman's primary thesis is that certain groups in Japan with plaints, grievances or political agendas have used and continue to use rights-like concepts or, especially after the Second World War, expressly invoke rights as one way to achieve their goals, we need to have a very clear idea as to what those groups mean when they use the word "rights." We cannot gain that without a clear understanding from the outset of what Feldman means when he uses the word. We learn that Feldman refers to a concept broader than jurisprudential rights, one that includes Stuart Scheingold's

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"politics of rights." It is difficult, however, to gain a more rigorous understanding than that. When Feldman tells us that a certain group or person uses the word "rights" and that therefore "rights" are important in Japan, we need to know what Feldman means by the term and, at the simplest level, whether the group or person speaking means the same thing.

The book's core lies in the narratives of conflict in the realm of health policy. Chapter 3 briefly relates the rise of a small but tenacious patients' rights movement in Japan dating from the late 1960s. Although litigation has not proven particularly effective in this area, especially on the key issue of informed consent, Feldman emphasizes that the movement uses rights concepts to characterize the physician patient relationship and uses "rights talk" in public policy discourse, aimed at capturing attention, swaying public opinion, and influencing public policy makers.

The impact of rights rhetoric on the formulation of public policy is also illustrated in the next narrative, the story of the government's attempt to deal with Japan's AIDS problem from 1987 onwards. That could not be done without coming to grips with the largest and most prominent group of those infected with HIV in Japan, hemophiliacs, who are seen as "innocent victims" (HIV-tainted blood products infected 2,000 out of 5,000 hemophiliacs nationwide). Feldman shows how that group and their spokespeople used rights talk to enhance their public profile, enlist public support and pressure politicians, in effect delaying passage of AIDS legislation until their concerns about violation of their rights in the context of public health measures were met.

That legislation, the AIDS Prevention Law, did not, however, address the problem of compensating hemophiliac AIDS victims. The relief plan that the government put in place was sorely inadequate, and two groups of hemophiliacs infected with HIV brought civil actions, in Tokyo and Osaka, against the government and five pharmaceutical companies. Feldman's recounting of the litigation is compelling. This is rich material but, unfortunately, due perhaps to constraints of time or space, Feldman does not develop it fully. Although the suit is identified in part as justice-seeking litigation, the kinds of questions that would give us a deeper understanding of how rights are conceived and wielded are not addressed. When does a group that has suffered, and has portrayed itself as victims, turn to litigation? What are its goals? What relationship is there between the goals of the group and the motivation and goals of individual members? These and other questions may become the subject of future work (one hopes so), focusing, as Feldman suggests in his final chapter, on the role that "rights" play in the consciousness and actions of those concerned. As it is we are given a narrative presented to support only the proposition that rights are voiced and asserted and that they matter in Japan.

Feldman also deals with one other area where rights talk has played a role, the recent controversy over brain death and organ transplantation. Here rights have not been invoked or asserted by parties directly affected. Instead, some rights talk, largely by those who had been active in the patients' rights movement, joined a multiplicity of voices in an extended public debate that embraced morality, ethics, philosophy, history, culture and more. It is not clear the extent to which "rights talk" affected policy

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makers' and public opinion. What is clear is that one group of activists, with the apparent acquiescence of public prosecutors, utilized the mechanism of public criminal complaints to cast a forcefully inhibiting shadow over the performance of transplants from brain dead donors for more than thirty years. Again, however, Feldman tells us little more than that. One hopes that in future he will have the opportunity to analyze these phenomena, in comparison to other instances of rights invocation and assertion, in a developing a broader and more sophisticated picture of rights in Japan.

That underscores a major, although perhaps unavoidable, failing of the book. Data is presented; stories are told. However, in chapter after chapter, the data is said to prove one thing, that, contrary to the "conventional belief", rights do make a difference in Japan. How is that point proven? Essentially by showing that some parties to conflicts, especially groups, use rights language and assert what they call rights in various ways in pursuing their goals. This is a point that, in my view, is no longer controversial. Beyond that are more important questions, among them: who uses the word "rights"? When do they use the word KENRI and when do they use the perhaps more commonly heard JINKEN (human rights), and why? What do they mean by those terms, how are they understood by, and what affect do they have upon, those who hear and read them? When, where, how and why are "rights" asserted?

Feldman identifies some of these questions in his introduction and his final chapter (which is a good review of the sociolegal literature about Japan). He also outlines the methodological difficulties entailed in answering them. It will take many more case studies, presented in more depth and with greater analysis than in this book, however, before we begin to understand the "ritual of rights" (a term that Feldman coins but also fails to define or describe with any precision) in Japan or elsewhere. This book, in that sense, charts a course for the future.

Copyright 2000 by the author, Stephan M. Salzberg