The Right to Life in Japan

Noel Williams

• Publisher: Routledge
• Year: 2002
• eBook ISBN: 9781134731251
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

The Right to Life in Japan is a study that brings new perspectives to bear on an extremely important topic for all those facing the moral dilemmas of such issues as abortion and the death penalty. It also helps to fill a gap in life, in social science and law studies of contemporary Japan.
Noel Williams approaches the right to life in Japan from a legal viewpoint via a broad range of issues such as abortion, suicide, capital punishment and death from overwork. Following a discussion of law and rights in Japan from an historical perspective, the author examines the question of what life is in contemporary Japan and focuses on problematic areas which have arisen in life issues, including infringements of the right to life within the modern company organization, and by the state, as well as the question of the equality of the right to life.

1 Introduction

In 1947,¹ the right to life (seimei), along with other fundamental rights, was bestowed upon the Japanese people by the Japanese Constitution. Article 13 states:

All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.

The provision confers on the individual for the first time in the history of the Japanese nation the right to life. With the promulgation of the Constitution, the individual became the possessor of a multitude of freedoms and rights,² including the right to life, which contemporary Western societies deem an essential building-block of civilized society.

Article 13 identifies three constituent elements of the right to life. First, the Japanese³ possess this right as individuals. Second, it is limited by the public welfare. Third, where it does not interfere with the public welfare, it attains supremacy over other matters.

Two main questions arise from these elements so identified, and will be the focus of attention in this book. First, has the sanctity of the right to life supremacy over other values? As Japan has the cultural tradition of acknowledging sacrifice as a moral value and of appreciating idealized ways of death, the extent to which the modern Japanese Constitution recognizes the sanctity of the right to life becomes a fundamental question to be answered in this study. How far have the traditional Japanese values given way to the constitutional provision on the right to life? We will see during the course of the study how foreign concepts of the right to life have been received and assimilated into the right to life in Japan.

At the heart of the question of the sanctity of the right to life is the concept of limitation on rights. This is not, of course, a uniquely Japanese phenomenon. This is a common feature of the instruments of international law. In the 1946 United Nations Universal Declaration of Human Rights, for example, we find that, although article 3 provides that ‘Everyone has the right to life, liberty and security of persons’, the Declaration notes limitations on these and the other fundamental rights listed therein. Article 29 states:

1Everyone has duties to the community in which alone the free and full development of his personality is possible.

2In the exercise of his rights and freedoms, everyone shall be subject to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

Likewise, the European Convention on Human Rights of 1950 provides limitations on inter alia the right to life. By article 2:

1Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

The Japanese Constitution employs the abstract term ‘kokyo no fukushi’(the public welfare) to denote limitations on fundamental human rights. This has raised the question of what the public welfare is under the Constitution, and in what instances the public welfare denies human rights. In this book we look at instances where the public welfare limitation overrides the constitutional provision on the right to life, and examine the reasons for this.

The second question which the book raises is this: do all individuals possess an equal right to life? On the question of equality under the law, article 14 of the Constitution states:

All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.

Does this principle of equality under the law apply in respect of the right to life? This question arises from the fact that, previous to the promulgation of the present Constitution, the idea of individuals being the recipients of equal rights never existed in Japanese law.

Theories of natural rights, which have as their basis the belief that people already possess rights equally when they are born, flourished in the works of such early philosophers as Marcus Tullius Cicero (106–43 BC), St Augustine (354–430), and Thomas Aquinas (1225–74), and in the works of the English liberals Thomas Hobbes (1588–1679) and John Locke (1632–1704), and the French thinker Jean-Jacques Rousseau (1712–78 ),⁴ but did not find fertile ground in Japan easily.

Natural rights theories were introduced into Japan at the beginning of the Meiji period (1868–1912) by liberal thinkers, and the doctrine was translated into Japanese as ‘tenpu jinken setsu’ (theory of heaven-given human rights).⁵ In the years 1880 and 1881, with the rise of the movement for democratic rights, the doctrine was used as a base for the theory that sovereignty rested with the people. However, with the promulgation in 1889 of the Dai Nippon Teikoku Kenpo (The Constitution of Great Imperial Japan)—commonly referred to as the Meiji Constitution⁶—this doctrine was dropped from legal thought. Against this background, the operation of the principle of equality under the law enunciated in the present Constitution demands examination.

Rights of ‘living’ conferred under the present Constitution have largely been studied and discussed in relation to article 25. This article concerns itself with seizonken (the right to continue one’s existence). Under this article, in contrast to the right to life found in article 13, the individual is guaranteed a quality of life. Article 25 notes:

All people shall have the right to maintain the minimum standards of wholesome and cultured living. In all spheres of life, the state shall use its endeavours for the promotion and extension of social welfare and security, and of public health.

The concept of the quality of life, which is found first in law in the Weimar Constitution of 1919, became a common principle of twentieth century constitutions. Although the idea only appeared inJapanese law with the promulgation of the present Constitution, it had already been introduced into Japan through the writings of scholars in the 1920s.⁷

Since 1947, two stages in the development of the discussion on seizonken in Japan can be identified. The first stage was the immediate post-war discussion which emphasized seizonken within the context of the Japanese economy, and was the direct result of the economic crisis which had beset the country in the aftermath of the war. The second, which focused on comfortable living conditions, took place with Japan’s recovery from her post-war difficulties and the rebuilding of her economy.⁸

In contrast to seizonken, the right to life is the right to live, infringement of which affects the very essence of man’s existence, denying him his most priceless and treasured possession—his life. With the inclusion of the right to life in the present Constitution, the guaranteeing of this right in practice has become of primary importance to individuals. We examine the operation of this right, bringing into the discussion the questions posed earlier, and focusing attention on those areas where an individual’s right to life has, arguably, been infringed. We concentrate in this book on the individual.

To begin our examination we attempt, in Chapter 2, to understand the historical background to the Constitution. We examine two issues in particular: first, what law has been in Japan; second, how rights have been expressed in the Japanese context.

In order to understand what the right to life in Japan means, we examine, in Chapter 3, the question of what life is in contemporary Japan, and look at several problematic issues which have arisen in respect of the beginning and end of life.

Chapter 4 deals with the essential question raised at the beginning of this chapter; namely, whether the right to life is bestowed equally upon all individuals. We examine whether instances of inequality find expression in law, and ask why this has been made possible.

In Chapter 5 we examine the contemporary phenomenon of the infringement of the right to life within the structure of a ‘modern’ organization—the company. We examine the conflict between company values and the individual’s right to life within the organization.

In the final chapter we bring to the discussion an understanding of the social and cultural significance attached to the issues raised in the body of this book.

2 Law and rights in Japan

The history of the present Constitution begins with Japan’s acceptance of the Potsdam Declaration of 26 July 1945, which defined the terms for Japanese surrender to end the Second World War.¹ The present Constitution incorporates the demands of democracy and freedom of the individual contained in the Declaration. Article 10 demanded that:

The Japanese government shall remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people. Freedom of speech, of religion, and of thought, as well as respect for the fundamental human rights shall be established.

This was not the first time, however, for the Japanese to have been brought face to face with the Western concepts of freedom and rights, for the early years of the Meiji period had brought with them an increasing recognition of the rights of the Japanese subject. The introduction of the new concept of rights necessitated the invention of a new Japanese term. Mitsukuri Rinsho employed the term kenri(comprising the two characters ‘might’ and ‘reasoning’) in his translation of the French Penal Code to express the notion of droitsubjectif. Mitsukuri did not invent the word himself, however, but took it from a Chinese translation of an international law text published in the early 1860s.²

In an attempt to explain the term kenri,³ Fukuzawa Yukichi (1834–1901) stressed that, despite the unfortunate connotation of the two characters which made up the settled Japanese translation of rights (they being inappropriate as the character for ken implied ‘might’ and ri suggested vulgar ‘profit’⁴), the term kenri itself stood for a concept which gave to the people—irrespectiv...

Table of contents

• Cover
• Half Title
• The Nissan Institute/Routledge Japanese Studies Series
• Full Title
• Copyright
• Contents
• Series editor's preface
• List of figures and tables
• Preface
• Conventions
• 1 Introduction
• 2 Law and rights in Japan
• 3 Aspects of the boundaries of life
• 4 The equality of the right to life
• 5 The social value of death
• 6 Moral value and Japanese law
• Notes
• Bibliography
• Index