COMPETING CONCEPTIONS OF RIGHTS
Japan and the United States share some of the institutional infrastructure for “rights” such as written constitutions and independent judiciaries. Both countries are liberal democracies, and the US played a key role in remaking Japan’s institutions after World War II. Still, what the term “rights” means differs in the two countries. Japan has inherited competing conceptions of rights from the West at different points in its history. The concept of rights continues to develop as the power balance between state and society has shifted in favor of a greater public decision-making role. What constitutes “rights” has also changed substantially in the United States over the past eighty years or so. Nevertheless, Japan still hews to a positivistic (i.e., limited to formal written statements) idea of rights that differs fundamentally from the natural rights conception that animated the framers of the US Constitution and that continues to influence political debate in the United States.
RIGHTS AND LIBERTIES
“Rights” can include claims based upon written law, contracts, or custom against another individual; claims against state interference with liberties such as freedom of speech; or claims for benefits such as social welfare that the state should allegedly provide. Still, a broad division exists among democracies in the political role of rights claims against state interference. Since the seventeenth century, the central Anglo-American approach to liberty rooted in natural law; certain rights are supposed to exist
prior to the formation of the political order. John Locke, in 1690, noted that the law of nature forbids a person from harming another in his life, liberty, health, or possessions. The US Constitution incorporates Locke’s thought when the Fifth Amendment prohibits the central government, and the Fourteenth prohibits the states, from depriving people of life, liberty, or property without due process of law. This natural law view shapes American thought about rights, which become veto points against a variety of government policies, including legally mandated racial segregation, coastal wetland protection, and child labor.1
The author would like to thank the editor and two anonymous reviewers for their comments.
Feldman, Eric A. “Law, Culture, and Conflict: Dispute Resolution in Postwar Japan.” D.H. Foote, ed. Law in Japan: A Turning Point. Seattle: University of Washington Press, 2007.
Ramseyer, J.M. and E.B. Rasmusen, “Why Are Japanese Judges So Conservative in Politically Charged Cases?” American Political Science Review 95 (2001): 331–344.
—————. Japan’s Political Marketplace. Cambridge: Harvard University Press, 1993.