Law, Labour and Society in Japan

From Repression to Reluctant Recognition

Anthony Woodiwiss

• Publisher: Routledge
• Year: 2002
• Print ISBN:
  9780415068420
• eBook ISBN:
  9781134915989
• Topic: Sciences sociales
• Subtopic: Études régionales

As Japanese companies establish overseas production facilities at an ever more repid pace, it is increasingly important for people in the host countries to understand the preconceptions upon which the Japanese approach to industrial relations is based. This book traces the development of Japanese labour law and shows how labour law has been related to the prevailing social, economic and political circumstances.

Part I

PREWAR SOCIETY AND THE REPRESSION OF LABOUR

1

EARLY MEIJI SOCIETY AND THE ABSENCE OF LABOUR LAW

One important reason why the notion that Japan’s trade unions enjoy a strong legal position is so widespread is because virtually all past discussions of the issue have begun with the Occupation and the passage of the legislation now in force. Irrespective of whether it was made consciously or unconsciously, such a choice of starting point implies a view that the Occupation represented a far more radical social transformation than is acceptable here. The Occupation changed many things that are pertinent to the present discussion, most obviously the Constitution and the nature of the more specific positive law governing industrial relations. Taken literally, these changes benefited labour immensely. However, taking things literally does not or should not come easily to social scientists. They know that positive law does not exclusively determine either what is socially enforced or even sometimes what is legally enforceable.

As Kahn-Freund argues in Labour and the Law, the law is ‘a secondary force in human affairs’ (1977). By this he means that it cannot force itself on society and, as a corollary, that its importance in any particular society is determined by social processes other than that which it represents itself. In other words, the social importance of the law may vary greatly from society to society and even within one society over time. Modern Japan always has been and still is a society in which the law is relatively unimportant. However, the proximate causes of this unimportance have changed markedly over the years. In the course of a discussion of what might best be called ‘the under-development’ of labour law, the first part of this book will specify the changing causes of this unimportance during the prewar period. Knowledge of this pre-history is essential if the otherwise common judgement as to the current strength of Japanese labour’s legal position is to be reversed.

The whole of the period 1868–1945 may be treated as a unity. Labour law, as a developed discourse of rights and duties in the workplace, was notable by its absence throughout this period. In so far as it existed, it remained largely a matter of the criminal law and police repression. However, the reasons for this state of affairs changed over time and so for analytical convenience the period will be divided into two: the early Meiji period (1868–89) and the period during which the Meiji Constitution was in force (1889–1945).

THE FORMATION OF THE EARLY MEIJI STATE

Although the Restoration was a product of economic and ideological as well as political changes, it was in itself essentially a political event. This section will begin, therefore, with a discussion of the structure of the Meiji state. Indeed if one does not so begin, it is hard to know how to divide up any account of the development of modern Japan. The changes in the other spheres were gradual, uneven, and anyway always very clearly over-determined by political changes. Most pertinently, if one does not appreciate how slowly the changes in the other spheres followed those in politics, it is hard to explain why labour law’s arrival was so long delayed, as well as why it took such an attenuated form when it did eventually appear.

The early Meiji state was not a Rechtsstaat (law state) since its citizenry were subject to no unitary and universally applicable set of laws (Henderson 1968a: 415). It was instead a variant of the absolutist state, as scholars in the Marxist tradition have long maintained (e.g. Norman 1940). However, although non-Marxist scholars have been singularly loath to acknowledge it, neither the Japanese Marxist tradition nor Norman in particular intended to suggest by their use of the term what had traditionally been suggested by their European Marxist colleagues; namely, that as an absolutism the early Meiji state was necessarily antipathetic to capitalist development. Indeed the disagreement between the Koza and Rono factions, from which Norman learnt a great deal, was very much concerned with this issue and the Rono faction took a position opposed to the European orthodoxy (Hoston 1987).

In Europe today, although many Marxist scholars persist with the traditional view (e.g. Anderson 1974), some others, notably Hindess and Hirst (1975) and Lublinskaya (1968), have adopted a position closer to the Rona one and indeed to that of the non-Marxist historians of ‘enlightened despotism’. According to this position, absolutist states are understood to be the products of feudal conflicts and yet to be capable of acting in ways favourable to capitalist development without themselves being properly capitalist states.¹

The identification of the pre-Rechtsstaat, Meiji state as absolutist in the sense specified here enables one to make four statements about it. First, that it was an example of a far from unique state form which had no inherent relationship—pro or con—to capitalism. Second, that it was constructed in the midst of, or as in this case (and in this regard it was distinctive) in the aftermath of, what proved to be a terminal explosion of feudal conflicts. Third, that it was a state whose significance for capitalist development was dependent upon the balance of economic, political and ideological forces that supported it. And fourth, that it was a state wherein power was centralised in a monarchy possessed of a bureaucratic apparatus, which the occupant of the throne personally controlled, if in many respects only nominally.

The second of these statements requires some discussion, since it indicates a substantive divergence between the present position and that to be found in Norman (1940) and Japanese Marxism (see also Halliday 1976). Specifically, the present author does not share his predecessors’ insistence on the critical importance of capitalist development and especially of capitalist merchants in the crisis that finally saw the collapse of the Tokugawa shogunate. I do not dispute capitalism’s existence in late Tokugawa Japan, nor indeed the importance of the external pressures represented by ‘western capitalism’, which Norman emphasises, but only, like most non-Marxist historians (e.g. Craig 1961), their centrality to the Restoration crisis itself.

The import of this divergence is that, since neither any particular capitalists nor capitalism in general (contra Anderson 1974:435 ff.) may be understood to have emerged as victors from the Restoration conflicts, their subsequent rapid advance is something that has to be explained rather than assumed as is otherwise most often the case on both sides of the historiographical divide.² Indeed it will be suggested below that the only basis upon which it is possible to understand why it required a military defeat and foreign occupation before the state withdrew from direct intervention in the workplace, is if one refuses the proposition that the interests of the prewar state were exclusively or even primarily identified with those of capital. Throughout the sub-period presently under discussion, the state and capital shared some interests. Each was a highly significant condition of the other’s existence and so some complementarity was inevitable. However, their relationship was characterised by a striking degree of ‘relative autonomy’. This was the consequence of the fact that Meiji absolutism was established after the collapse of feudalism, but before capitalism obtained even economic dominance; i.e. the early Meiji state enjoyed an unusual degree of freedom from economic constraints of a structural, even if not of a fiscal, kind.

THE EARLY MEIJI STATE

What, then, were the characteristics of the early Meiji social formation that allowed this unusual degree of state autonomy? And what, to begin with, were the characteristics of the state itself? The first thing that has to be said about this state is something which takes us to the heart of the issues that relate to its autonomy. It is that, for the most part, and to a far greater degree than its European equivalents, it was a new structure. Not only did the process of state-creation directly impose a particular ‘logic’ (Jessop 1987) on and thereby constrain the actions of state incumbents, but it also overlay and in this way shaped and constrained other structures and actors. State-creation, then, was the principal source of the state’s autonomous concerns.

One element of the state, however, was not new. This was, of course, the position of tenno (emperor), since the call for its restoration to primacy within the state was what had legitimated all the pre-Restoration strife. However, what was expected of the position in the new conditions was very different from that which had been expected hitherto. It had to become, in Bagehot’s terms, an ‘efficient’ as well as a ‘dignified’ part of the state. ‘How could or should this happen?’ is a question that appears to have preoccupied tenno Meiji and the oligarchs who ruled with him, especially the seven or so genro (elder statesmen). After an initial dalliance with liberalistic, Anglo–American notions in the Charter Oath and the Constitution, both of 1868, the state-makers appear to have moved uncertainly but steadily away from such ideas and especially their connotations of popular sovereignty and representation. The details are not as important as the fact that the net result of their deliberations, prior to the establishment of a Rechtsstaat, was the absolutist state that has already been briefly discussed. It was constructed as a result of a great deal of trial, error and intrigue, within which ideological disputation played little direct part. For this reason, its coordination and staffing were marked by a distinctive and overwhelming concern with personal loyalty (Ishii 1980:ch. 5; McLaren 1965; Silberman 1982). The latter is a fact of some significance in the light of the emerging themes of tennosei (emperor system) ideology, as will become apparent below.

In the absence of an explicit commitment to capitalism on the part of the state-makers, and in the context of a continuing fear of resurgent feudal forces, which only receded after the crushing of the Satsuma rebellion of 1877, the exigencies of state-making seem to explain better the decisions that are otherwise most often cited as indicative of the state’s commitment to capitalism. The final destruction of feudalism, including such of its incidents as the system of landholding, han and samurai privileges, and merchant and artisanal guilds, was not so much a forward-looking policy decision as an attempt to secure the conditions of the new state’s very existence in what Umegaki (1988) has emphasised were the rather fraught conditions that persisted for some ten years or so after the Restoration. Thus Japan became capitalist almost by default. To use a well-known Gramscian phrase, it witnessed a most passive of ‘passive revolutions’. The positive measures undertaken by the state, including the establishment of private property in land, were considered necessary for primarily fiscal and security reasons, as even Norman (1940:136–43) recognised. Without them the new state would have possessed neither the secure and dependable revenues nor the monopoly over legitimate force that, since Weber, have been understood as the prerequisites of any state’s existence. Similarly, the formation of the new conscript army, the creation of a police force, the pursuit of ‘western learning’, the improvement of domestic communications and the establishment of state-owned factories, are all readily understandable when located in the same context and seen as a response to the same exigencies of state-making.

Of course, each of these developments was highly propitious from the point of view of capital. But that is all they were—promising not promises. In any event, capital was too weak to have possessed the means necessary either to extract or to enforce any such promises. (The qualified nature of the ideologically critical protection of private property will be specified below.) This said, the developments very definitely were propitious and not just as messages from the Shinto kami (ancestral spirits). The latter were themselves being reinvigorated and, like the tenno-state that they were about to inhabit, their aggrandisement was the main concern of their servants. Moreover, the latter activity also proved to be propitious from capital’s point of view, and for a similar reason. Accidental as both sets of benificences were, the Kokutai thus constructed was to so structure the environment of production that, and especially in the absence of any viable or, better, equally clearly and powerfully articulated challenges, capital profited mightily from it both nationally and in the workplace. However, in relation to the period presently under discussion the benefits of these effects were still largely in the future. Few were the enterprises that were capable of profiting immediately from the new economic freedoms: large-scale enterprises barely existed and the very numerous, small, simple commodity producing ones were only very slowly reconstituting themselves on the basis of capitalist relations of production.

In short, because of its particular conditions of existence, the early Meiji state, as a set of institutions and administrative routines, so constrained the actions of its incumbents that their actions became subject to an overwhelming logic of state-creation. This meshed with that operative within the capitalist sector of the economy in ways that were often only accidentally or tangentially complementary and were sometimes even antipathetic (Akita 1967:165 ff.). The autonomy so gained, although it became somewhat more relative in the sense of somewhat more constrained by the demands of capital, was never greatly threatened in the pre–1945 period. This was because, with the partial exception of those industrialists who read the earlier works of Fukuzawa, the liberal thinker of the Meiji era, very few had much sense, ideologically, of their special needs (Marshall 1967). Nor, as it turned out, was it economically necessary that they should have any such sense.

THE CREATION OF A CAPITALIST ECONOMY

In the literature pertaining to the economic history of late Tokugawa and early Meiji Japan, there is general agreement that capitalist production relations existed and were of some significance within the economy.³ However, the analytical criteria upon which such judgements are based are seldom made explicit. In so far as they are, they often seem to be in conflict with the descriptions that are offered of the relations concerned. More specifically, emphasis is placed on aspects of exchange rather than production: on the emergence of a money economy; on the consequent monetisation of agricultural relationships; on the growth of a rural/urban artisanate; and on the growing importance of urban merchants (shonin) in terms of their wealth, the financial dependence of many feudal lords on them and their ownership of reclaimed land (i.e. shinden, or land ‘unknown’ to the shogunal authorities, Nakamura 1983:49). In these ways capitalism is said to have established itself.

When, however, one reads descriptions of the production relations obtaining within the productive units so circumscribed (e.g. Hirschmeier and Yui 1981; Smith 1959), one is struck by their similarity to those generally classified as instances of simple commodity production. They are those, in other words, that normally would be recognised as father/family, or master/servant relations, wherein the powers intrinsic to possession are vested in the head of the ‘house’ or ie (household). The major difference between them and their European equivalents would seem to have been that aspects of their conditions of existence radically reduced the autonomy of the ‘houses’ relative to feudalism, as well as reduced, therefore, the possibility of their being transmuted into resilient capitalist enterprises. For example, agricultural landholdings, merchant ownership of buildings and the land upon which they stood, reclaimed land, and the commodities in which they dealt, all seem to have been secure enough (see p. 34). However, the existence of both lordly prerogatives and variable tax/rent levels always influenced and could have been used to determine the productivity of, and so to assert a lordly possessory power over, agriculture, although it appears they seldom were. Nevertheless, loans could be and often were forced from merchants by the daimyo (feudal lords), who seldom felt under any obligation to repay them. Additionally, restrictions on the free movement of labour were rigorously enforced. And finally, possessory rights were legitimated by an uncompromisingly feudal ideology, which made the enjoyment of any such rights very dependent upon the goodwill of social superiors. In the case of the merchants, this included virtually everyone else, even their employees, the landless peasantry.

All that said, there seems to be no reason to doubt that many artisans, merchants and other non-lordly property holders nevertheless not only sustained their autonomy as simple commodity producers, but also succeeded in transforming their ‘houses’ and farms into capitalist enterprises, albeit generally of a very small size. What distinguished the capitalist from the simple commodity producing enterprises was the fact that the labourers in the capitalist enterprises could leave and therefore were sometimes able to bargain over their wages and conditions. This occurred despite the fact that these freedoms were supported by no legal rights, contractual or otherwise, and that the dominant ideology continued to deprecate them in the strongest possible terms. (For evidence of the existence of an urban, free labour market, see Wilkinson 1965, and for that of a rural one see Smith 1959.)

Many individual units of both kinds of enterprise were entirely dependent upon demands emanating from the feudal system, and so dependent upon the wider effects of its ideological thrall that they failed to survive its disappearance. Nevertheless, simple commodity and capitalist production as such were the principal economic beneficiaries of the collapse/destruction of feudalism. For the first time, their existence was entirely secure, if only negatively for the first four years after the Restoration given that the hitherto dominant feudal system no longer existed. These t...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• Conventions
• Introduction: The Problem of Orientalism and the Formation of Modern Japan
• Part I Prewar society and the repression of labour
• Part II Postwar society and the reluctant recognition of labour
• Conclusion: Varieties of Capitalist Law, Citizenship Rights and the Question of Postmodernism
• Glossary
• Table of cases
• References
• Index