December 2005
Note
In Defense Of Gradualism: civil rights Justice in Japan
Christopher Gunson1
Japan is the only developed nation without civil rights legislation protecting the rights of
minorities and non-citizens, and the judiciary is frequently criticized for not establishing
judicial precedent to expand legal protections. Yet while judges in Japan may be reluctant
to legislate from the bench, Japan's courts have been ruling in favor of plaintiffs in racial
discrimination cases for decades, promoting a gradualist, reform-based approach to
tackling social discrimination and promoting civil rights. Understanding this step-based
approach is key to understanding the past, present, and future of civil rights for foreigners
and minorities in Japan.
1
B.A. Rutgers University 2003, J.D. Rutgers University (expected 2006). Sincere thanks to Karima
Bennoune, Debito Arudo, Michiko Tsunoda, Roger C. Prince, and others.
1
Every nation must create its laws to meet the cultural realities of the society to be
effective and useful, and thus cultures use a different legal means to achieve similar goals.
The Universal Declaration of Human Rights paints some broad concepts to which all
nations have agreed, but it does not specify how these goals must be met. At first sight, the
United States of America and Japan seem to have rather different approaches to ensuring
equal rights for all their citizens. Many critics of Japan's system, which has no civil rights
law protecting minority groups or expanding equal protection, advocate an American-style
approach to civil rights as the solution for furthering minority rights in Japan. I will show
here that the Japanese approach to the civil rights dilemma is tailored to its history and
traditions. Far from advocating an American approach, today's activists would do best to
understand Japan's native experience.
Japan is one of the most ethnically homogeneous nations in the world, with
approximately 99%2 of the population citizens and members of one monolithic population.
Japan does not formally recognize cultural, social, or religious differences within its
citizenry, but every society has minorities and the land of the Rising Sun is no exception.
Most are indistinguishable to the naked eye. The largest of these groups are the Burakumin
underclass, families that worked in professions associated with killing, such as butchers,
tanners, and executioners. Legal discrimination began against the Burakumin during the
Tokugawa Era in the 17th century. In an existence some scholars compare to the Dalits
2
As of 2000, Japan's foreign population was approximately 1.5 million people, according to the national
census. See: Sharon Moshavi. Japan's Foreign Population Distrusted, Needed. Boston Globe. November 19,
2000. The 2005 census will be published shortly after I am submitting this paper for review. Preliminary
estimates suggest the number may grow to as many as 2 million; the Ministry of Justice estimates the
population at 1.81 million as of 2003. See: http:// www.moj.go.jp/PRESS/040611-1/040611-1.html
2
"untouchables" of Hindu India, Burakumin were forced to live in separate communities and
were tattooed or forced to wear clothing to openly identify their status. Laws enacted in
1871 during the Meiji Restoration abolished discriminatory codes, but social and cultural
discrimination against Burakumin descendents persisted; current estimates of their numbers
range from 800,000 to three million. 3 There are also long-term Korean and Chinese
residents of Japan ("Zainichi"), most of whom are descendents of those brought to Japan
during colonial rule during the early 20th century.
The Zainichi population is
approximately 850,000, of whom more than 4/5ths are ethnic Koreans. Burakumin and
Zainichi are physically indistinguishable from the rest of the population, 4 and their
inclusion in the 99% majority is determined by citizenship: citizen Burakumin and
naturalized Zainichi are considered part of the 99% majority, non-citizen Zainichi are not.5
Other minorities are outwardly obvious. These include the indigenous Ainu people
of the northern island of Hokkaido, who have an entirely different ethnic heritage.6 There
is also a growing population of foreigners from across the globe, including nationals from
3
Government estimates suggest the former, Burakumin community groups the later. See:
4
The difference between invisible and visible minorities is driven home by electoral politics. Hiromu Nonaka,
of Burakumin descent, and Shokei Arai, a naturalized Korean politician who served in the Diet from 19861998, were both elected to the Japanese Diet and revealed their backgrounds after they had secured their
positions in national politics. The election of Ainu politician Shigeru Kayano in 1994 garnered much more
attention, as did the entrance of a naturalized Finnish-born parliamentarian Marutei Tsurunen to the Diet in
2002.
5
According to the statistics of the Immigration Bureau of Japan, available online at: http://
www.moj.go.jp/PRESS/040611-1/040611-1.html
6
The number of full Ainu people is estimated to be less than 20,000. Approximately 50,000 people in Japan
are of half or more Ainu ancestry, and about 150,000 Japanese people have some Ainu ancestry. Some would
consider Okinawans as outwardly obvious minorities, although their existence is less controversial than the
Ainu.
3
China, the Philippines, South Korea, Brazil, Thailand, Iran, and the United States. Again,
inclusion in the 99% majority is dependent on citizenry alone. The Ainu and naturalized
foreigners are part of this majority whereas non-citizen permanent residents and foreigners
are not.
Discrimination in modern Japan rarely results in extrajudicial violence and de jure
discrimination familiar to the historical experience of the United States. 7
Instead,
minorities have encountered more subtle discrimination, primarily by private parties. This
includes landlords refusing to rent to prospective tenants because of their ethnic or cultural
background; workplace discrimination that hinders hiring and promotion; refusal of entry to
businesses open to the public; and similar examples. Discrimination against Burakumin
and Zainichi is particularly egregious because they look and speak like other citizens, the
only distinguishing characteristic being their background.8
Minorities have long been without administrative relief of racial discrimination, as
Japan is the only developed nation without civil rights legislation.9 The only avenue of
legal remedy is the judiciary, which is frequently accused of judicial restraint and focusing
on preserving the status quo over other considerations. This despite the fact that Article
7
I am referring specifically to Black Codes, lynching, and the "separate but equal" public establishments that
were common throughout the South from the end of the Civil War to the 1960s.
8
In the case of Zainichi non-citizen permanent residents and some naturalized citizens who choose not to
adopt a Japanese name, this can also identify individuals as non-Japanese.
9
Japan does have a Civil Liberties Bureau established by the US occupation forces in 1948, but the agency
typically acts as a mediation board between private parties. See: Joel Rosch, Institutionalizing Mediation:
The Evolution of the Civil Liberties Bureau in Japan. 21 Law & Soc'y Rev. 243. (1987)
4
8110 of the Constitution of Japan grants the Supreme Court powers of judicial review over
the other branches of government. These powers are more extensive than those granted in
Article 3 of the Constitution of the United States 11 , which was the model for Japan's
constitution. Yet critics of Japan's judiciary overlook a deeper reality: for more than three
decades the courts have ruled overwhelmingly in favor of plaintiffs in racial discrimination
cases. Although reluctant to "legislate from the bench" and establish sweeping precedent or
push duties on the government, Japan's courts nonetheless are diligent in rectifying specific
cases of discrimination. Recent history shows that the legislative and executive branches
do respond, but the courts do not force the government's hand and encourage a gradualist,
reform-based approach.
Gradualism has long been a pillar of Japan's civic institutions in the modern era.
During the post-war occupation, Prince Konoe pleaded with General MacArthur for
gradualist reforms12; during the recession of the 1990s, Japanese firms were seen as taking
too gradual an approach to reforming fiscal practices and management policies13; financial
10
The English text of Article 81 of the Japanese Constitution reads: "The Supreme Court is the court of last
resort with power to determine the constitutionality of any law, order, regulation or official act."
11
Article 3 of the United States Constitution reads: "The judicial Power of the United States, shall be vested
in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall,
at stated Times, receive for their Services, a Compensation, which shall not be diminished during their
Continuance in Office."
12
Marius B. Jansen. The Making of Modern Japan 670. (Harvard University Press 2002)
13
Ageing and Employment Policies: Japan 114. (Organisation for Economic Co-operation and Development,
2004).
5
liberalization was often characterized domestically and abroad as a "gradualist"14; and some
scholars have even called gradualism an unstated official policy.15 This does not excuse the
lack of civil rights legislation or negate the need for equal protection laws. But remedying
social discrimination and the plight of minorities is not an overnight task, and civil rights
decisions are decided by timing and issue framing, not judicial virtue. Legislation is a
necessary final step, but Japan shows that a US-style precedent-based legal system is not
the only way to implement civil rights legislation. Indeed, Japan's experience suggests that
a gradualist approach encourages minority assimilation and imposes less stress on society
as a whole.
I. JAPAN'S JUDICIARY
Explanations for the timidity of Japan's courts in comparison to the judiciary in the
United States are commonly attributed to institutional 16 and cultural 17 factors. Both of
these certainly play a role, but the unique historical experiences of the two countries is
14
Takatoshi Ito. Financial Deregulation and Integration in East Asia. (University of Chicago Press, 1996)
15
Douglas Howland. Translating the West: Language and Political Reason in Nineteenth-Century Japan 165.
(University of Hawaii Press, 2002).
The court’s mandate is also limited to review cases 1.) involving constitutional issues, 2.) bearing socially
important issues, 3.) where a uniform view is required to clarify conflicting rulings, and 4.) requiring the court
to alter precedent. See Hideo Chikusa. “Japanese Supreme Court – Its Institution and Background.” 52 SMU
L. Rev. 1719, 1721. (Fall 1999)
16
17
Explanations vary. Some scholars emphasize Confucian ideals; others an austere samurai tradition; others
note the promotion of a society where the governors and the governed understand their “place” and limit their
claims against one another; while yet others note the cultural focus on “balance” and “harmony,” among other
explanations. See: Christopher Ford. “The Indigenization of Constitutionalism in the Japanese Experience.@
28 Case W. Res. J. Int’l L. 3, 4. (Winter 1996)
6
frequently overlooked. The Anglo common law system began under the auspices of the
adversarial system in 12th century Norman England, where concepts such as precedent,
custom, and tradition developed organically over the course of centuries.18 By comparison,
modern Japan has twice undergone a complete overhaul of its legal system in the past 150
years. The first was during the Meiji Reformation, when the country adopted the German
civil code wholesale; the second during the postwar period, when the Constitution and
many laws were rewritten based on American laws. These changes being adopted out of
historical necessity, there is no institutional memory or historical basis that would lead to
the robust judiciary that exists in the United States.19
Advocates of an "American approach" to civil rights activism in Japan face a
number of hurdles. First, Japan remains in essence a civil law system where precedent is
not as binding as the common law system. Second, the national judicial philosophy is
different. Professor Takeyoshi Kawashima's description of Japanese jurisprudence is one
of the most popular and widely respected scholarly explanations. According to Kawashima,
courts in Japan emphasize prescriptive measures for specific cases based on the facts before
Taylor von Mehren. “The Legal Order in Japan’s Changing Society.” 76 Harv. L. Rev. 1170. 1963. *11711174
18
19
During the Meiji Reformation in the second half of the 19 th century, Japan initially drew heavily on the
legal systems of continental Europe, especially German law. The wholesale adoption of this law was based in
an underlying fear that Japan must rapidly modernize or face losing its independence and sovereignty. After
World War II, the United States
Today, half of the “Six Codes” that make up the legal system are based on German law (Civil Code;
Commercial Code; Criminal Code) and the remaining three are heavily influenced by the law of the United
States (the Constitution; the Civil Code; the Criminal Code). See Id., *1178.
7
them and avoid making sweeping precedent.20 Kawashima wrote his comparison during
the civil rights movement in the United States and may have been overly influenced by the
controversy surrounding the more revolutionary court rulings that began with Brown v.
Board of Education,21 but even today Japan’s Supreme Court rarely overrules the executive
or legislative branches of government.
That Japan does not scrutinize the executive and legislature with the same vigor as
the United States should not be interpreted as a weakness in the system of checks and
balances. The courts in the United States have developed judicial review to a degree
unparalleled anywhere else in the world, even in other common law jurisdiction nations.
Thus the robust judicial review of the Supreme Court in the District of Colombia may not
be the appropriate standard to evaluate the Supreme Court that sits Tokyo. Japan’s high
courts may, like those in the United States, require decades to mature before the institution
as a whole is comfortable with social policymaking. The United States Supreme Court
certainly required many years. Chief Justice John Marshall issued the first tactful decision
that established the precedent judicial review by nullifying the Judicial Act in the landmark
case Marbury v. Madison,22 but it took another fifty-four years before the court overruled
another act of Congress in Dred Scot v. Sandford.23
Takeyoshi Kawashima. Dispute Resolution in Contemporary Japan in “Law in Japan: The Legal Order of a
Changing Society.” (Arthur Taylor von Mehren ed., 1963).
20
21
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
22
Marbury v. Madison. 5 U.S. (1 Cranch) 137 (1803)
23
Dred Scott v. Sandford. 60 U.S. (19 How.) 393 (1857). Additionally, this case is seen as one of the primary
causes of the Civil War.
8
Regardless, the lack of strong judicial review in Japan has not stopped remarkably
positive rulings for plaintiffs seeking relief in racial discrimination cases, both in the rulings
and in actual result. In fact, the success of moderate reform, pressuring instead of forcing
the other branches of government to act, suggests that the Japanese model of gradualism is
at minimum an equally effective model for targeting racial discrimination.
II. THE CONSTITUTION OF JAPAN AND EQUAL PROTECTION
The postwar occupation of Japan rewrote the Constitution and modeled Article 14
on the Fourteenth Amendment of the Constitution of the United States, establishing equal
protection under the law. The article states that "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." In the American experience, the Equal
Protection Clause, along with the rest of the Fourteenth Amendment, marked a shift in
American legal thinking. Before its enactment, the Constitution only protected individual
rights from invasion by the federal government; after its enactment, the Constitution
guaranteed rights from abridgement by state governments.
Yet its interpretation was
narrow for almost a century, and it was not until the 1938 Carolene Products ruling24 that
the courts began to construe the Clause more expansively. By the 1960s the executive and
the legislative branches of government had joined the court in expanding equal protection
laws by passing legislation intended to ensure equality in education, employment, housing,
24
United States v. Carolene Products Company 304 U.S. 144 (1938)
9
lodging, and government benefits. The story of the Equal Protection Clause in the United
States is the gradual expansion of its meaning.
Japan does not face a dichotomy between federal and state protection, there was a
different kind of limitation when the final version of Article 14 of the Constitution of Japan
was adopted: the world "people" was translated to kokumin, which means "citizen."25 This
has long been criticized by civil rights activists in Japan as exclusionary and prejudicial
wording, but the Constitution was one of the first hurdles passed in regards to non-citizen
rights in Japan. In the early post-war period, the Supreme Court dismissed the difference
between citizens and non-citizens.
Although Article 14... is targeted directly at Japanese nationals, its tenor
must also be applied, by analogy, to aliens as well, in view of the fact that
Article 7 of the Universal Declaration of Human rights provides that "[a]ll
are equal before the law and are entitled without any discrimination to
equal protection of the law."26
Coming in 1964, this decision was the first to expand legal protections to foreigners and
has since been generally accepted among scholars and courts that foreigners are afforded
equal protection under the Japanese Constitution, with the notable except of such rights as
voting which are by their nature reserved for nationals. But removing the citizen-foreigner
barrier did not expand the scope of Equal Protection.
The Japanese Constitution's
25
English and Japanese versions of the Constitution are available online at: http://
www.solon.org/Constitutions/Japan/English/english-Constitution.html
26
Judgment of 18 November 1964, Supreme Court, 18 Keishu 579, 582.; see also: Benedetto Conforti,
Francesco Francioni, Enforcing International Human Rights in Domestic Courts, 240. (Martinus Nijhoff,
1996).
10
protections of human rights only protects against "unreasonable" differential treatment.27
Furthermore, the constitutional guarantees are intended to protect individuals from the state
and are not directly applicable to private employers.28 However, equal protection does not
apply to protections for private parties, and highlights the necessity of a legislative civil
rights Act.
III. THE FAMILY REGISTER AND SOCIAL DISCRIMINATION
The family register is a legal institution found in a number of countries that operate
under a continental-style civil law system. In Japan, family registers, or "koseki," have
been in use since the seventh century. First adopted from China to trace the lineage of
noble households, it was expanded to cover all citizens during the 19th century and
contains information about the birthplace, birthday, parents, lineage, marriage and children.
The koseki is held by local city wards and is designed to be a centralized repository of vital
statistics regarding a family.29
Proponents of koseki cite the benefits of a simplified system that allows easy access
to such information. Yet the establishment of such a formalized family register encourages
social discrimination because it institutionalizes the registration of family background,
27
Article 25 of the Constitution of Japan states: "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 endeavors for the
promotion and extension of social welfare and security, and of public health."
28
Sakae Wagatsuma, Guarantee of Fundamental Human Rights Under the Japanese Constitution, in Legal
Reforms in Japan During the Allied Occupation, 1977 Wash. L. Rev. 124, 154.
29
Yoshio Sugimoto. An Introduction to Japanese Society, 147. (Cambridge University Press 2002)
11
allowing background checks of prospective spouses and permitting employers to
investigate the backgrounds of their employees.30 This becomes even more controversial
when national origin or Burakumin ancestry becomes an additional factor of concern, and
the koseki was long one of the primary obstacles for social advancement for Japan's
invisible minorities.
The Hitachi Racial Discrimination Case
Shoji Arai was born to a working class family in rural Kochi Prefecture in 1951, the
youngest of nine children. He worked in several odd jobs before passing, at age nineteen, a
competitive entrance exam for the software design division of the Hitachi Corporation.
Arai was required to submit a copy of his family register to apply for company housing,
which revealed that despite being born and raised in Japan, Arai was of Korean ancestry
and his original name was Chong Sok Park. Hitachi withdrew its employment offer on the
grounds that Park had deceived the company. Park sued Hitachi in the Yokohama District
Court, claiming that Hitachi was using deception as an excuse to discriminate on grounds
of his Korean ethnicity.31
30
Edward R. Beauchamp. Japanese Society since 1945, 128-130. (Garland Science, UK, 1998)
31
No. 2118. Showa 45 (Wa). First District Court of Yokohama. June 19, 1974.
12
Park was the first notable case where a member of Japan's "invisible" 32 Korean
minority sued a high profile33 employer, and the case was not fought alone. Park received
the support of Japanese and Korean human rights activists who organized a boycott of
Hitachi's products and publicized the issue in domestic and international forums.34 To the
surprise of many, he won. The three judges presiding over the case began their ruling by
noting the social discrimination faced by ethnic Koreans and fined Hitachi 50,000 yen,35
the salary Park would have earned during the four years the case was litigated, and most
surprisingly, enforced the completion of the labor contract.
Completion may seem destined to lead to future conflict. After facing the judgment
in favor of Park, Hitachi would be unable to fire him without the appearance of
discrimination. But the initial employment contract stipulated that Hitachi would employ
Park for a two month probation period. After that, Hitachi could hire him as a full time
employee or let him go, in which case the company would award him a monetary dismissal
award. The court enforced the contract on these terms.36 Hitachi did not file an appeal and
hired Park for the two month period immediately after the case. Park was still at Hitachi as
of June 2000 when he gave a speech to a Kanagawa Prefecture community group
32
As emphasized in the opening paragraphs, the Zainichi Korean population speak Japanese fluently and are
ethnically East Asian, and consequently essentially indistinguishable from other Japanese citizens to the
naked eye.
33
Hitachi is one of the largest manufacturers of electric and electronic products in the world.
34
Ian Neary, Human Rights in Japan, South Korea, and Taiwan 47 (Routledge 2002)
35
Approximately US$2,000, as of the exchange rate in 1971.
36
This ruling is not unusual in Japan, where one function of the courts is to encourage mediation between the
parties.
13
commemorating the 25th anniversary of the case.37 Whereas discrimination rulings in the
United States are generally resolved with hefty damage awards that target deep pockets, the
court ruling was designed to tackle existing social discrimination with a more practical
solution.
The case was a success for Japan's Korean community, many of whom took the case
as a cue to openly use their Korean names in applying for work. Yet while it was a warning
to Japan's companies that they could not discriminate on the basis of national origin, the
court ultimately ruled on narrowly construed terms of the labor contract, stating that
Hitachi's unilateral revocation constituted an arbitrary breach of the employment contract.
Park's ethnic background was mentioned, but the only laws cited were Article 3 of the
Labor Standard Act and Article 90 of the Civil Code.38 The court made no mention of the
government's lack of anti-discrimination laws.
The Yata Denunciation
Despite the abolition of discriminatory codes in 1871, Burakumin and their
descendents continued to face social discrimination. Starting in the 1920s, Burakumin
community leaders established organizations to advance their rights. The first was the
"Suiheisha," or the Levelers Association of Japan, and later the "Buraku Kaihou Undou," or
37
Park made a speech commemorating the anniversary of the opening of the case in 30 June 2000, in which
he spoke about working at Hitachi through the present date. Available online: http://
homepage3.nifty.com/hrv/krk/torikumi/hitati/hitati03_04.html (Japanese)
38
First District Court of Yokohama. Showa 45 (Wa) No. 2118. 19 June 1974.
14
Buraku Liberation League. Even though these organizations were allied with the minority
Socialist and Communist Parties, the ruling Liberal Democratic Party government passed
measures to alleviate Burakumin discrimination, including passing the Special Measures
Law for Assimilation Projects to provide financial aid for the discriminated communities.39
For many, these measures were not enough. One practice dating from before World
War II was the use of "kyudan toso," or denunciations, in which groups of Burakumin
would subject individuals perceived as discriminating to forceful verbal interrogations.40 In
1969, a group of more than 250 Burakumin subjected several teachers at a school in Yata,
Osaka to an interrogation that lasted nearly seventeen hours.
The leaders of the
interrogation were tried in criminal court on grounds of unlawful imprisonment, but the
court sided with defendants. While noting that the conduct was excessive, the defendants
were acquitted on the grounds that denunciations were the only means available for
members of the Burakumin to remedy discrimination.41
The Government Responds
39
Kenneth Wu. "The Protruding Nail Gets Hammered Down: Discrimination of Foreign Workers in Japan."
2 Wash. U. Global Stud. L. Rev. 469, 476-477.
40
Emily A. Su-lan Reber. "Buraku Mondai in Japan: Historical and Modern Perspectives and Directions for
the Future." 12 Harv. Hum. Rts. J. 297 (1999).
41
The defendants were convicted on appeal, but given a suspended sentence that required no jail time.
Additionally, the ruling was seen by some as a defeat in that the lenient attitude towards the denunciations
was also a reflection sign that the court would not expand legal protections for Burakumin, leaving the
denunciations as the only recourse to combat discrimination.
15
In both the Hitachi and the Yata cases, the courts made no demands on the
government to pass measures to tackle social discrimination.
Nonetheless, the
administrative branch responded accordingly. Shortly after the Yata denunciation cases in
1969, the government launched the Ten Year Plan to transform Burakumin communities,
and the result was a remarkable integration of the community into mainstream Japanese
society. By the 1980s, building projects had transformed ghettos into modern residential
districts with modern facilities. By the mid-1990s, Burakumin families had higher rates of
home ownership than the national average; 20% of Burakumin adolescents attended college,
compared to a rate of just 2% in the mid-1960s and the national average of 28%42; and the
rate of intermarriage between Burakumin and ordinary citizens reached 75% by 1995.43
This was followed by a change to the family register law. In the same year the
Hitachi ruling was issued, the Ministry of Health and Welfare issued a notice to local ward
offices prohibiting employers from viewing the family register of employees or prospective
employees. The following year, the family register law was reformed to delete lineage
from the register, and the year after that, family register access was restricted to those listed
on the register in question or in legal cases. This resulted in, or at least corresponded with,
a precipitous decline in statistics indicating social discrimination.44 In 1976, the same year
the "koseki" family register was made private, the rate of intermarriage between ethnic
Koreans and Japanese nationals passed 50 percent for the first time in history, rising to 73%
42
James L. McClain. Japan, 627. (W.W. Norton & Company, 2001).
43
Sandra Buckley. Encyclopedia of Contemporary Japanese Culture, 53. (Routledge 2003)
44
Kosekihou (Family Register Law), Showa 22 Year, Law No. 224.
16
by 1990 and 82% by 1994.45 More Zainichi permanent residents are naturalized every year,
with the number growing from 2,000 per year in the 1950s to more than 5,000 in 1990.46
IV. EQUAL PROTECTION FOR KOREAN RESIDENTS OF JAPAN
While social discrimination is on track to being eliminated, legal protections for
minorities in the workplace vary. Japanese government officials argue that if Koreans want
to enjoy the same rights as citizens, they should naturalize. Renowned scholar of Japanese
Law Professor James M. Kearney argues that this ignores the historical realities of the
Korean experience in Japan. Many Koreans were brought to Japan against their will as
labor shortages worsened during the final years of World War II. Although the majority of
the 2.3 million Koreans in Japan chose to return after the war, many chose to remain
because of the political and economic uncertainty in the Korean peninsula. Today, a
majority of the Korean population has not naturalized.47
Kearny's analysis is not incorrect, but overemphasizes the history at the expense of
current realities.
Giving permanent residents no incentive to naturalize would
institutionalize a minority that is indistinguishable from the rest of the population with the
45
Sonia Ryane. Koreans in Japan, 6 (Routledge 2000). See also: R. Tsuneyoshi. The 'new' foreigners and the
social reconstruction of difference: the cultural diversification of Japanese education. Comparative Education,
Volume 40, Number 1, February 2004, pp. 55-81 (27)
46
Id. Additionally, naturalized citizens are not considered foreigners and are thus not included in the
intermarriage rate.
47
James M. Kearney. "Local Public Employment Discrimination Against Korean Permanent Residents in
Japan: A U.S. Perspective." Pacific Rim Law and Policy Journal. January 1989.
17
exception of their lineage. Starting in the 1980s, the Japanese government drastically
liberalized requirements for naturalization, requiring only five years of consecutive
residence in Japan, a third grade reading level, and steady employment to become a citizen.
The courts have provided some relief to Korean nationals in cases of discrimination
associated with employment in the public sector and housing discrimination, but have
generally recognized the government's interest in encouraging naturalization.
Kyong Duk Kim
Kyong Duk Kim was born in Tokyo to parents of Korean nationality in 1949.
Unlike Chong Sok Park, who grew up in the rural southern prefecture of Kochi, Kim was
born in a Korean community in the national capital and made no pretense of being
Japanese.48 After graduating from the Faculty of Law at Waseda University, Kim passed
Japan's notoriously difficult bar examination49 and prepared to enter the Judicial Research
and Training Institute (JRTI), a two-year required tutelage after passing the bar exam.
Since 1955, the JRTI has only admitted aliens who declare an intent to become Japanese
citizens. Kim filed a petition to the Supreme Court on 20 November 1976 requesting that
they accept him regardless of his nationality.
48
For example, he did not use a Japanese name.
49
Exact figures from the early 1970s are not available, but Japan's bar exam is a grueling marathon of two to
three written exams and an interview. Pass rates rarely exceed 1%. See: Sandra Buckley, Encyclopedia of
Contemporary Japanese culture 280 (Routledge 2003)
18
Kim based his request on the grounds that he was planning to become an attorney to
protect the rights of Korean residents, and his clients would not trust him if he renounced
his citizenship. Kim's concerns were not unfounded. Chong Sok Park's supporters in the
Hitachi case did not include either of the two largest Korean residents' organizations, who
felt that Park had betrayed his community by using his Japanese name.50 Additionally, a
survey conducted in 1975 revealed that 74.2% of Zainichi permanent residents were
opposed to naturalization.51
The court issued a one-sentence ruling in favor of Kim without abolishing the
nationality requirement, stating, "In the case of Mr. Kim, nationality would not be a factor
to deny admission to the Judicial Research and Training Institute."52 The President of the
Japan Federation of Bar Associations expressed his view that the Court's opinion did not set
a precedent, as the court had restricted its opinion to the specific facts surrounding Kim and
his desired career path, but the bar association nonetheless chose to abolish the nationality
requirement two years later in 1978.53 Between 1978 and the mid-1990s, a total of thirtythree ethnic Koreans followed in Kim's footsteps, of whom twenty did not naturalize. 54
Once again, a lack of precedent did not stop the expansion of civil rights.
50
Neary, Id.
51
Hahn Bae-ho and Hong Sung-chick. The Korean Minority in Japan: Their Problems, Aspirations and
Prospects. 15 (No 6) Korea I 4.17 (1975).
52
James M. Kearney. "Local Public Employment Discrimination Against Korean Permanent Residents in
Japan: A U.S. Perspective." 7 Pac. Rim L. & Pol'y J. 197. (January, 1998)
53
Id.
54
Edith Buchanan Terry, How Asia Got Rich: Japan, China, and the Asian Miracle, 484 (M.E. Sharpe, 2002)
19
The Housing Discrimination Suit of Pe Cong Il55
Under the expansion of equal protection guaranteed by Article 14 of the
Constitution, foreigners can apply to rent public housing on equal footing with citizens. In
the case of private housing, however, selection of tenants is left to the discretion of the
landlord. This has resulted in deeply-rooted housing bias against foreign tenants and longstanding difficulty for foreigners and minorities seeking private housing facilities.
Pe Cong Il was a second-generation Korean born in Osaka in 1950.
While
searching for housing in January 1989, he informed his real estate agent that he was a South
Korean national. She told him this would not be a problem and he paid a deposit and
signed a provisional contract for a housing unit. When the landlord learned that his new
tenant was a Korean, he refused to accept the contract. Negotiations between the parties
failed and Pe filed suit in the Osaka District Court in April. The suit targeted three
defendants: the real estate agent and the landlord for unfair discrimination, in which Pe
demanded that the contract be performed and damages paid; and the Osaka prefectural
government for failing to meet its obligation to issue administrative guidance against
discrimination.56
The court ruled against the landlord, stating "the landlord refused to rent the
apartment to the plaintiff because he was a Korean residing in Japan... the refusal to rent
55
Also written "Bae Keun-Il."
56
Yasunori Fukuoka, Yukiko Tsujiyama. Mintohren: Young Koreans Against Ethnic Discrimination in Japan.
The Bulletin of Chiba College of Health Science, Vol.10, No.2. 1992.
20
has no rational basis." The court also ordered the landlord to pay 267,000 yen57 in damages.
But the claim against the prefectural government was turned down: "the Law for Housing,
Land, and Buildings Transactions on which administrative guidance is based governs
economic aspects of tenants but does not extend to the refusal to rent to foreigners." Also,
the court only addressed the unilateral revocation of the contract after the landlord
discovered the prospective tenant was Korean, and made no mention of discrimination on
basis of national origin or ethnicity before a contract was made.58
Housing discrimination highlights the conflict between freedom of business and
association and equal protection of the law. Housing discrimination in Japan remains one
of the most surreptitious forms of discrimination. Requiring Japanese nationality is a
common requirement for many rented apartments and homes. The United States went
through a similar debate in recent decades when discrimination in housing was legally
prohibited after the passage of the Fair Housing Act of 1968, which prohibited
discrimination on the basis of race, color, religion, and national origin; sex was added to
that list in 1974, and disability and familial status in 1988.59
Chong Health Care Promotion Case
57
Approximately $2,000.
58
Fukuoka, Id.
59
Austin Sarat. Cultural Pluralism, Identity Politics, and the Law, 119. (University of Michigan Press, 2001)
21
It was not until the 1980s that Japan began to drop restrictions on permanent
residents working in specialist class employment, and slowly but surely most of the
nationality clauses were abolished. The nationality clause for public health services was
dropped in 1986, and Hyan Gyun Chong, 60 an ethnic Korean and second generation
permanent resident of Japan, became the first foreign public health nurse in 1988. She was
promoted to a junior managerial position in 1993 but was refused permission to sit for an
exam for further promotion. She filed suit in the Tokyo District Court on grounds of
discrimination, but the court ruled in favor of the government, saying there was a legitimate
public interest in limiting government jobs to citizens.61
Critics of Japan's civil rights and human rights are quick to denounce the case as
typical xenophobia. Kenneth Wu, writing in the Washington University Global Studies
Law Review, derided the court's decision as an example of typical Japanese hostility
towards foreign residents: "Out of spite, instead of allowing nurse Chong to contribute her
medical expertise, the Japanese people decided to discriminate against her, thus depriving
themselves of a much needed addition to the nursing field." 62 Had Wu looked at the
policies of the United States he would have seen a similar situation in regard to jobs with
the federal government. Chong had been eligible for citizenship for more than three
decades and chose not to naturalize. Additionally, the decision was made by the courts, not
the Japanese people; no evidence suggests spite was a factor in the case; and Ms. Chong
60
Also written "Hyan Kyun Chong."
61
Masami Itoh. Globalization of Japan: Japanese Sakoku Mentality and U.S. Efforts to Open Japan. pg. 113.
62
Wu, 488.
22
was denied promotion, not entrance into the nursing field. The success of Kim and the
failure of Chong may be indirectly related to the change in the naturalization law in 1984,
which, among other liberalizations, removed the requirement that new citizens adopt
Japanese names.
V. "RATIONAL RACISM" AND EQUAL PROTECTION
Dinesh D'Souza, an Indian immigrant and prominent conservative, relates the story
of Michelle Joo, an Asian American shopkeeper in Washington, D.C., who discriminates
on the basis of race in deciding whether or not to permit patrons to enter the store. D'Souza
calls this "rational racism," and that it is rational to discriminate against racial groups if
there is a statistical correlation between race and crime.63 A taboo subject in the United
States, the phenomenon is more acceptable in a country as homogenous as Japan, especially
as media and government reports suggested that immigration correlated with an increase in
crime.
It was this that led to an increase in racial tensions in the industrial city of
Hamamatsu and the groundbreaking Bortz racial discrimination case.
With a low population replacement rate, an aging population, an underfunded social
security system, and a large public debt, Japan faces severe economic and demographic
problems.64 As a largely homogeneous country the government was hesitant to follow the
63
Dinesh D'Souza. The End of Racism. (Free Press, NY, 1995).
64
Chieko Tanimura, Immigration of Nikkeijin to ease the Japanese Aging Crisis. Vancouver Centre for
Excellence: Research on Immigration and Integration in the Metropolis (RIIM), May 2002. Available online:
http:// www.riim.metropolis.net/Virtual%20Library/2000/wp0003.pdf
23
path of other developed nations and permit immigration.
But Japan’s unprecedented
economic boom required continuous supplies of unskilled labor, and in June 1990, the
immigration law was liberalized to create a new category of immigration for foreign
descendants of Japanese emigrants (Nikkeijin) up to the third generation and their
dependents.
Most Nikkeijin immigrant workers arrived from Brazil and Peru, their
numbers reaching more than 200,000 over the next five years.65 Brazilian nationals showed
different settlement patterns from Chinese migrants, who tended to settle in large cities, and
instead settled in outlying industrial cities where assembly plants and factories are
concentrated. The largest population of Brazilians ended up in the city of Hamamatsu in
Shizuoka Prefecture.66
The decision to liberalize the law on migration was based on the theory that
foreigners of Japanese heritage would assimilate into mainstream Japanese society more
smoothly. But many cities that hosted large Brazilian minority populations reported a
variety of problems in assimilating the migrants. Some were relatively minor, such as
issues with foreign nationals not taking recycling seriously, an important obligation in a
country with one of the highest population densities in the world. Others were more
65
Hiromi Mori, Immigration Policy and Foreign Workers in Japan 64 (Palgrave, 1997); see also: Keiko
Yamanaka. Ana Bortz's Law Suit and Minority Rights in Japan. JPRI Working Paper No. 88., September
2002. Underlying this sudden exodus of citizens of Japanese descent from Latin America were the economic
and political crises that plagued Peru and Brazil throughout the 1980s.
66
Mori, 1997. Exact numbers are impossible to pinpoint as first and second generation Brazilian migrants of
Japanese heritage are not included in government statistics of the foreign population, although estimates reach
as high as 40,000 in a city with a total population of 600,000. See also: Mike Douglass, Glenda S Roberts.
"Japan and Global Migration: Foreign Workers and the Advent of a Multicultural Society." Labor migration
and diaspora formation. Univeristy of Hawaii Press.
24
serious, such as high levels of school absenteeism and an increase in larceny and violent
crime. 67 Friction between immigrant communities led to resentment and exclusion by
private parties and business establishments.
Ana Bortz and the ICERD in Japanese Jurisprudence68
Ana Bortz was a Brazilian citizen working in Shizuoka prefecture as a satellite
journalist. On 18 June 1998, she entered a jewelry store in Hamamatsu only to be asked
her nationality by the proprietor, Takahisa Suzuki. Bortz smiled and replied that she was
Brazilian. Upon hearing this, Suzuki told her to leave, pointing that his sign said that
foreigners were not permitted to enter the store. When she refused to leave, he called the
police. An officer promptly arrived at the scene and joined Suzuki in asking Bortz to leave
the premises. Bortz filled suit against Suzuki for damages in the Shizuoka District Court
claiming racial discrimination. All of the facts above were captured on the store's security
camera and contradicted Suzuki's testimony that Bortz was acting suspiciously.
Nonetheless, Suzuki's actions were not illegal in a country with no civil rights
legislation. And his response was rational, from a certain point of view: the store had been
the target of two recent robberies, at least one of which the perpetrators were Brazilian
migrants. So Bortz's attorney Hideyo Ogawa took an unorthodox approach and based the
case on international law, citing the 1965 International Convention on the Elimination of
67
Pradyumna Prasad Karan, Japan in the Twenty-First Century: Environment, Economy, and Society 191
(University of Kentucky Press)
68
Bortz v. Suzuki, No. 322. Shizuoka District Court, 12. October 1999.
25
All Forms of Racial Discrimination (ICERD), which Japan ratified in 1995. He based his
argument in conjunction with Section 2 of Article 98 of the Constitution of Japan, which
reads that treaties concluded by Japan shall be "faithfully observed," and Japan's agreement
promised to take all effective measures to eliminate all forms of racial discrimination
without delay. Judge Tetsuro So, head of a three-judge panel that took the case, followed
the ICERD’s provisions as the standard by which racial discrimination must be determined
and ruled that Bortz had suffered under Japan's anti-defamation laws. "This was an illegal
act against an individual," So said. He added that it was "unfair" to eject Bortz from the
store simply because she was Brazilian.69 He ordered the jewelry store owner to pay Bortz
damages of eleven million yen.70 The defendants unsuccessfully requested an appellate
ruling.71
The Bortz case was not the first successful racial discrimination case, but it was the
first time Japan's non-indigenous minority too note and tried to expand its scope. Steve
Herman, a veteran Tokyo-based journalist, was refused a housing loan from Asahi Bank on
the grounds that he was not a permanent resident. Although he initially shrugged it off, he
was inspired by the success of Ana Bortz to take the bank to court. In November 2001 the
Tokyo District Court ruled in favor of the bank, stating, "It is reasonable for the bank to
turn down the request from a foreigner who is not certain to stay in Japan," and in August
69
Howard W. French. 'Japanese Only' Policy Takes Body Blow in Court. N. Y. Times. November 15, 1999 at
A1.
70
Id. Approximately $14,000.
71
Japan's judiciary is a unit-based court system and review by a higher court is not necessary to establish
precedent.
26
2002 the High Court refused to hear the case.72 The court felt that the discrimination was
within the bounds of reason, although the free market won Herman's case just two months
after his suit was rejected: Asahi Bank was acquired by Resona Holdings, Inc in October
2002, and a number of banks, such as Shinsei and UFJ, have since adjusted policies to
consider foreigners for mortgages who do not hold permanent residency.
The case of Douglas Shukert is less encouraging. Foreigners are barred from
competing in Kokutai, Japan's largest amateur athletic meet. This was ironic considering
the Japan Amateur Sports Association (JASA), which runs the event, ran an English
version of its web site and proclaimed its slogan as "Sports for All." Shukert sued the
organizations for taxation without representation, false advertising, and encouraging racist
attitudes, but the Sendai District Court ruled that the ban was not unjust because a
nationality restriction is reasonable given the purposes of the national sports festival. 73
After the case, the JASA changed its slogan to "Sports for All Nationals."
Otaru-Yunohana Bathhouse Discrimination
The Bortz case was also responsible for another famous discrimination lawsuit that
targeted the exclusionary policies of a public bath in the northern city of Otaru. Otaru is a
trading port that, starting in the mid-1990s, saw tens of thousands of Russian sailors a year.
The city did much to internationalize and accommodate its overseas visitors, but sailors are
72
Information and news articles on the case are collected and summarized at http://
www.debito.org/hermancase.html
73
Top court upholds foreigner ban. Japan Times. 12 June 2004.
27
sailors; although a vital component of the local economy, the city soon became awash with
cases of Russians shoplifting, becoming violently drunk, and flouting local customs. This
was particularly noticeable in the public baths. Complaints about Russian bathers were
numerous: they entered the bath without washing; they were noisy; they "cannonballed"
into the water; smoked tobacco; and drank alcohol.
Reacting to complaints of their
Japanese clientele, Yunohana Hot Spring banned all foreigners from the establishment.
Yunohana's exclusion of all foreigners was a rational response to the complaints of
its regular clientele in a society based on the concept of homogeneity. But in a Japan
steadily internationalizing, it was too broad. Enter David Aldwinkle, an American who
naturalized as a Japanese citizen in 2000, taking the name Debito Arudo, a Japanized
version of his name. Arudo filed suit against Yunohana along with two other plaintiffs,
both foreign residents of Japan.
Yunohana was the obvious target of the lawsuit, but the plaintiffs also filed suit
against Otaru City for not banning racial discrimination by private parties. Representatives
of the Otaru City municipal government had admitted that this was racial discrimination on
several occasions. In its monthly public report on municipal affairs, the city stated that,
"[r]efusing service to all foreigners is discrimination due to race, and terribly regrettable."74
Takeuchi Kazuho, Director of the International Exchange Division for Otaru City, stated in
an interview with the Hokkaido Shinbun, May 7, 2000: "Japan has ratified the Treaty
74
"Kouhou Otaru." No. 620, April 2000, page 6. Original text available at http:// www.debito.org
28
Against Racial Discrimation, but adequate domestic laws have not yet been established."75
Members of the municipal government sent letters of sympathy, acknowledged
discrimination as fact, but refused to pass an ordinance outlawing racial discrimination,
preferring instead to advise private parties. 76
The court found Yunohana guilty of
"irrational discrimination," or discriminating beyond the bounds of what was socially
acceptable, and awarded the plaintiffs monetary damages. But the court ruled in favor of
the other plaintiff, the Otaru City municipal government:
"Defendant Otaru City, as it is a regional public organization playing a part in
public administration, has the same duty as the national government to prohibit and
bring an end to racial discrimination. However, this duty is no more than a political
one; and concerning matters between individual citizens, this is interpreted to mean
that the [city government] is under no clear and absolute obligation to prohibit or
bring to an end concrete examples of racial discrimination by establishing local
laws."77
On 16 September 2004 the Sapporo High Court affirmed the District Court ruling, and on 7
April 2005, the Supreme Court refused to hear the case.
VI. PROSPECTS FOR FUTURE CASES
75
Hokkaido Shinbun, May 7, 2000: Original text available at http:// www.debito.org
76
The background to this case is documented in excruciating detail online at: http://
www.debito.org/lawsuitbackground.html
77
Ruling No. 322 (Wa), Sapporo High Court No. 3. September 16, 2004. Original text available at http://
www.debito.org
29
Arudo and several other plaintiffs are not taking their defeat lightly. On 24 October
2005 they filed suit with a number of other plaintiffs against the national government. The
lawsuit is divided into two "waves" of plaintiffs, with half the plaintiffs filing suit at
different times, depending on the complexity of the case. The first wave is of simple78
exclusions and refused entry to bars, restaurants, housing, and public facilities. The second
wave involves complex cases based on unequal treatment in the workplace, such as the
denial of tenure, promotion, or full-time work. 79 Arudo's statement on his website
announcing the case gets to the heart of insufficient legal protections: "Japan must improve
its legal and social treatment of people it regards as foreigners."80
The biggest hurdle for the current case demanding a ruling against the national
government is the attitude of the courts towards such cases. In both the Pe case against the
Osaka prefectural government and the Arudo case against the Otaru municipal government,
the court ruled that local governments do not have an absolute political duty to legislate
anti-discrimination measures. Arudo is quick to note a recent decision where the courts
forced the government to act.
On September 14, the Supreme Court issued a ruling
regarding overseas Japanese citizen voting rights and stated that the lack of a law
guaranteeing absentee voting rights is unconstitutional. Under the law revised in 1998,
citizens living overseas are allowed to vote for proportional representative seats but not
specific candidates in single-seat districts. The court handed down a 12 to 2 decision in
78
By "simple," Arudo et al wish to keep the case uncomplicated by labor disputes, contracts, divorces, and
other complications that could allow a judge to defer a ruling on the details of racial discrimination.
79
All current information available at: http:// www.debito.org/kunibengodanenglish.html
80
Id. Emphasis added.
30
favor of the plaintiffs, ordering the government to pay 5,000 yen81 in compensation to each
plaintiff and stated that the Diet must enact laws in a timely manner to allow overseas
citizens to vote in parliamentary elections. Yet this was in regards to voting rights for
citizens, not the expansion of equal protection for minorities.
On 13 October 2005, eleven days before Arudo and his fellow plaintiffs were about
to file their suit against the national government, the southern prefecture of Tottori passed
the first local human rights ordinance. Under the decree, a five-member committee will be
set up to deal with complaints stemming from violations concerning discrimination on race,
religion, disability, or social status; verbal or physical abuse; sexual harassment; slander; or
violating personal privacy.82 If anything the ordinance was too broad, and was criticized by
the Tottori Bar Association over privacy issues.83
There is also mounting international pressure. On 12 June 2005, special rapporteur
of the United Nations Commission on Human Rights, Doudou Diene of Senegal, made a
brief investigatory trip to Japan and concluded that deep discrimination exists against
Korean, Chinese, and other ethnic minorities. 84 When the final report was issued in
81
The amount of damages, at just US$45 per plaintiff, is a telling example of the typically miniscule size of
punitive damages in Japan and the judicial approach towards monetary damages.
82
Tottori rights law a first but irks critics. Japan Times. October 13, 2005.
83
Id. For example, the authorities can decide whether to disclose the names of rights abusers. Some media
groups and academics also questioned the independence of the five-member panel and expressed concerns
that the ordinance could threaten freedom of expression.
84
Masami Ito. Investigator says Japan must acknowledge its racism. Japan Times. July 12, 2005.
31
November, the Japanese government responded by saying that it would continue to take
measures to combat this discrimination without stating firm policy goals.85
These are promising signs that show that the domestic and international
environment is changing. But they do not suggest a favorable outcome for any future legal
claim against a government that does not establish civil rights legislation and equal
protection, and there is much to imply that the new case against the central government
lacks a sufficient foundation. The Hitachi, Bortz, and Yunohana cases all had plaintiffs
who had suffered compelling cases of irrational discrimination, combined with a
sympathetic story with boycotts, media attention, activist work, and hardworking attorneys.
By contrast, the current case lacks a moving story that could capture public attention:
Arudo, the first of three plaintiffs, cites his years of being refused service because he is
perceived as a foreigner, despite having Japanese nationality.
Furthermore, the only
plaintiff is the Japanese central government, yet there is nothing to suggest that the courts
have changed their oft-stated view that governments do not have an absolute political duty
to establish anti-discrimination laws.
This is not to trivialize Arudo's valid claims of discrimination, but it is not a logical
step in the progression of the current jurisprudence. A safer move would be to build on the
Pe case with the jurisprudence established by the Bortz and Yunohana cases to target
housing discrimination. The courts have established for more than thirty years that they
take a hard look at unreasonable discrimination, and the government has shown a
85
Shinichi Kitaoka Statement on Agenda item 69, elimination of racism and racial discrimination. 8
November 2005. Available online at: http:// www.mofa.go.jp/announce/speech/un2005/un0511-2.html
32
willingness to follow in the same direction. The right plaintiff, who captured the hearts and
minds of the media and public opinion in a clear case of housing discrimination, could
generate the right amount of sympathy and domestic and international pressure to win a
court case and change what is perhaps the most degrading aspect of civil rights legislation.
Litigation in this regard cannot be fought purely on judicial principle. Like any political
fight, it requires the right mix of a compelling plaintiff, a sympathetic court, media
attention, and timing. Overreaching litigation can result in serious damage to the cause:
once it is firmly established that the central government does not have a political duty to
establish civil rights legislation, the precedent would likely endure for decades.86
Of course, a gradualist approach has its faults. Dr. Martin Luther King Jr. is famous
for his denunciation of a step-based approach in a speech to a packed hall on April 10,
1957:
I'm aware of the fact that there are some people telling us to slow up. They are
saying all over. There are some writing letters from the South to the North saying,
"Slow up, you are going too fast." Well, I've never quite understood that. They talk
about gradualism and I always felt that at least gradualism meant starting and
moving, and how in the world can you slow up when you haven't even started?87
King's critique of gradualism emerged again in his famous "I have a Dream" speech on
August 28, 1963: "This is no time to engage in the luxury of cooling off or to take the
86
The most elegant articulation of this argument was made in the online journal Slate.com: Richard
Thompson Ford. Courting Trouble: A story of love, marriage, and litigation strategy. Slate.com. June 1, 2004.
Available online at: http:// www.slate.com/id/2101537/
87
The Papers of Martin Luther King, Jr., 175. (University of California Press, 2000).
33
tranquilizing drug of gradualism."88 Civil rights advocates in Japan find solace in his words,
and Arudo is one who notes him as a source of inspiration. 89 Regardless, it is worth
remembering Japan's history of gradualism in its jurisprudence and other institutions. Less
comparison with the civil rights struggle of half a century ago in the United States and more
focus on Japan's indigenous experience would allow greater understanding of how to
combat legal and social discrimination in Japan.
88
I Have a Dream - 40th Anniversary Edition: Writings and Speeches That Changed the World, 103.
(HarperCollins 1992)
89
See: Debito Arudo. Japanese Only. (Akashi Shoten, 2004)
34