Please help me with the answers of the following question by referring the document. thank you so much!!!

• What are Yoshida's main arguments about why Japanese people are 'reluctant litigants'?
• Does he adequately critique and respond to the Haley 'pragmatic argument'? Do the different approaches reflect different analytical assumptions or do they disagree about the data?
• Do you find the explanations for the perceived lack of legal consciousness convincing?

settlement of private disputes and a corollary aversion to the formal mechanisms of judicial adjudication. As a result, they say, Japanese do not take advantage of the available mechanisms for formal dispute resolution. These attitudes, they commonly add, are bolstered by a peculiar Japanese penchant for compromise, distrust of clear-cut "all or none" solutions and distaste for both public quarrels and their public resolution (ibid., 359). Haley argues this non-litigious tendency is a "myth". He also argues that the number of new cases filed on a per capita basis in Japan is by no means low and that since Meiji times (1868- 1912) the number of civil legal cases is directly related to the numbers of lawyers available; i.e. when there are more lawyers, then there are more lawsuits, and correspondingly when there is a decrease in the number of lawyers, then the number of civil suits also declines (ibid., 372, 381-3). Haley concludes that any reluctance to litigate does not derive from cultural factors, such as the lack of a "legal consciousness" as Kawashima and others have strongly argued, but rather results from a deficient legal structure that obstructs litigation (ibid., 389-90). Rather than being unaware of legal means for remedies, Japanese would-be litigants are only too aware that litigation is unlikely to lead to a beneficial outcome, i.e. they know it will not "pay" to sue. Tanaka's Critique of Haley The Japanese legal academic Professor H. Tanaka (1980, 61-3; see 1985, 285-298) has considered and criticised Haley's work, emphasising five points which he argues Haley has overlooked. First, Tanaka objects to Haley's failure to distinguish his (Tanaka's) views from those of Professors Kawashima and Noda (1976) and other leading academics. Tanaka claims that a lack of "legal consciousness" among Japanese has resulted from the influence of social mechanisms. Conversely Kawashima et al seem inclined to believe in a sort of spiritual "group mind", to which most Japanese are joined and by which all their actions are influenced in a subtle way. Second, Tanaka argues that Haley has accepted uncritically the numerical data supplied by A. Sarat and B. Grossman (1975, 1,200, 1,208) which purport to present the figures for civil litigation in Japan, yet these lawyers mistakenly include certain statistics of civil or administrative misdemeanour (karyo), which fabricate an exaggerated picture. Consequently Japan is in fact less litigious than Haley supposes. Third, Tanaka points out that Haley has failed to understand why the number of lawyers fluctuated so widely during the 1930s. Furthermore Tanaka claims Haley is also mistaken in correlating the number of lawyers with the number of civil lawsuits during this period. Haley says: The failure of Japan to provide more judges and lawyers has been clearly a matter of governmental policy. As to lawyers, since the mid-1930s, entry has been limited by a strictly enforced examination system. (This would explain why the number of lawyers would have levelled off after 1935, but not the extraordinary decrease in lawyers between 1934 and 1938. (See Table 6. - omitted] For reasons that are not at all clear, nearly a third of all Japanese attorneys withdrew from their bar associations during this period.) (1978, 385) The growth in the number of lawyers at the beginning of the 1930s was due to the world- wide economic depression concomitant with the fact that all law graduates of Imperial Universities were entitled to register as attorneys. As the depression deepened no Imperialgraduates registered and those already registered withdrew because there was no legal work and fees for membership of the bar associations were beyond their means. In addition, the increase in lawsuits at the beginning of the depression, and the fall-off as the depression deepened were caused not by the numbers of lawyers, but by the depression itself. At first creditors sued and later realised that suing was unlikely to lead to a successful outcome as debtors were without monetary resources. The fourth point of criticism raised by Tanaka is with regard to the question of bond-posting, which Haley considers an important factor inhibiting lawsuits. Haley argues "bond-posting requirements...may place an intolerable burden on the parties seeking relief" and cites Articles 107-117 of the Japanese Code of Civil Procedure (Minji soshoho) (ibid., 380). However, the cited articles relate to specific situations where the plaintiff does not have a permanent address (jusho), an office (jimusho) or place of business (eigyasho), and therefore cannot have the general implication that Haley argues for. Finally, Haley argues that in Japan there is no power of contempt of court in civil cases. Therefore without the voluntary compliance of parties "a court has no way to enforce its decrees on its own motion" and "instead must rely on procurators to initiate criminal proceedings" under Article 96-2 of the Japanese Penal Code (Ketho) (ibid., 387). Tanaka says that this seems to be a total misunderstanding of available enforcement procedures. For instance, in an action for debt under a judgement or a certificate issued by a notary public koshonin) confirming the liability, execution may be achieved by resort to the civil enforcement courts (Shikko Saibansho) or through an executor (a kind of bailiff) being enacted in the Law on Civil Enforcement (Minji Shikkoho) (1980). Haley's Essay - A Flawed Classic? It has been necessary to consider Tanaka's criticism of Haley's essay simply to illustrate the fact that in several respects Haley's work is flawed. There are only a limited number of English language sources on this topic and in the view of the American academic Ramseyer (1988, 111), Haley's essay has acquired the status of a "classic". It is easy to imagine that for future research, where original Japanese language materials cannot be looked through, these errors will be accepted and compounded. Ramseyer has commented that most Japanese academics have chosen to ignore Haley's assertions (ibid., 123): in the words of Tanaka he is suffering from "benign neglect" by the Japanese legal academic establishment (Tanaka 1980, 60). It could be thought that the main reason for this is that Haley failed to consider the effects of Japanese cultural factors and omitted an analysis of Kawashima's Mindset argument. Rather he conceived and investigated relationships only as roles, of the litigant, the lawyer and the judge, and assumed that everyone was inclined to act pragmatically in their own interest. However Japanese academics hold the prevailing opinion that Japanese frequently adopt a course of action harmful to their own interests by their reluctance to litigate. They are thus irrational or anti- pragmatic and this is explicable in terms of the unique culture which has formed in Japan with its stress on "collective harmony" (wa). Kawashima's Theory of "Legal Consciousness" Kawashima first advocated his ideas about the Japanese lack of "legal consciousness" about forty years ago. His original theory became accepted as an orthodox view, and was stronglysupported for two decades. In the late 1970s however various criticisms (by Japanese academics) started to gain support in repudiating some of Kawashima's claims. Kawashima maintained that his theory was based on Japan as a pre-modern society and that with the development of industrialisation, modernisation, and internationalisation a general consciousness of legal rights would grow, leading to an increase in cases of litigation (1967, 200-3). This anticipation seems to have proved to be correct in terms of the increasing number. As a matter of fact, although the number of newly initiated civil cases in the district courts had widely fluctuated between 50,000 and 100,000 within the post-war twenty year period in which Kawashima continued to claim his "Mindset argument", the number reached 150,000 for the period between 1993 and 1997, and 180,000 between 1998 and 2002 (Shiho Tokei Nenpo 2002). However, it is unclear whether the development of a legal consciousness is a chief factor for the increasing number of cases. It may be helpful to examine Kawashima's claims in greater detail. Lack of Consciousness of Legal Rights Kawashima takes as his starting point the argument that Japanese lack any consciousness of legal rights (ibid., 139). To support this he pointed to the fact that Japanese had no term for "legal right", and consequently the term kenri was adopted in the Meiji era (ibid., 16). Kawashima emphasised that a Japanese sense of law centred on the notion of "duty", without any corresponding "right". For example, in labour relationships employees did not regard themselves as workers with the right to claim wages from their employers, but as workers with gratitude towards their employers. This is an approximation to the consciousness of tenant farmers to their landowners (ibid., 16-9). The reference that Kawashima makes to the need for Meiji scholars to adopt in a new term to represent the idea "legal right" may in fact be a red herring. Professor Ohki has pointed out that the mere absence of a word is not conclusive evidence that the idea of legal rights was actually missing from Japanese society (1983, 234). He also highlights that Kawashima is partial in his analysis that the term for "duty" (gimw), also did not exist and was coined at the same time (ibid.). Recently Feldman (2000) examined the debate on the kenri consciousness from an analysis of social and legal phenomena on AIDS and brain death in Japan and refuted the Japanese legal consciousness thesis that, he argued, stands on somewhat easy assumptions. Without examining the meaning of "rights" in Western European legal systems, Kawashima assumes there is a uniform and coherent concept of rights, one that does not (and could not) accurately describe Japan. If that is so, his argument can be re-conceptualised as saying that there is a concept of rights in Japan different from the concept in the West, and the two must be distinguished (ibid., 154). In his related essay Feldman recommends an approach that "[when comparing assertions of rights in the United States and Japan, it is necessary to distinguish between rights, rhetoric about rights, and rights rhetoric" (1997, 216). For something to be a right, it should be guaranteed by substantial law endorsed by legal enforcement. He argues that, in both the United States and Japan, "there is much jurisprudenceal literature on precisely what rights are and how they should best be defined" (ibid.). Rhetoric about rights refers to "the relative importance attributed to rights in a particular society" (ibid.) by members of that society. Rights rhetoric refers to "the politics of rights" relating to "the examination of how rights are used to frame, discuss and debate issues relevant to social policy" (ibid.), for example.Feldman precisely points out that Japanese discussion on rights has not been rightly categorised in that way ever since Kawashima started with the Japanese legal consciousness thesis based on socio-legal analysis (discussion on that is not our purpose in this section). Ambiguity and the Japanese Language Kawashima also maintains that in Japan laws are uncertain and the scope of their enforcement is uncertain as well. However either factor is conducive to the establishment of a widely held legal consciousness. He says that this uncertainty is a result of the idiomatic features of the Japanese language and its usage. He then continues to generalise that due to such language characteristics, Japanese are not accustomed to precision, clarity of thought and expression, and that this has inhibited the development of a wide variety of areas which depend upon logical reasoning, including the science of law (1967, 34-8). Kawashima cites a comment by the Japanese novelist Tanizaki, who purports to establish that Japanese and English operate in different ways. This operation renders translation nearly impossible and emphasises why Japanese thought is resistant to logical ideas, such as the idea of individual legal rights. Tanizaki is comparing Arthur Waley's classic translation of the "Tale of Genji" (Genji Monogatari) with the Japanese original: As you take a look, three lines in the original are actually extended to seven lines in the translation. Needless to say, that is why many words which do not exist in the original are inevitably supplemented. For example, [examples omitted]...It follows that the English translation is more accurate than the original and there is no ambiguity in the translation. On the one hand the original does without mentioning what can be understood without mentioning, but on the other hand the translation tries to make readers more clearly understand something which is already understood by the readers [Tanizaki, of course, means Japanese readers in his second reference] ... In the Japanese original Genji the stylistic use of implied meaning draws on the imagination of readers and in this manner overcomes the lack of words used. The role of writers is to engage the imagination of their readerships and I believe Western approaches to writing, where writers depict narrowly in the Grey zone of (poetic] ambiguity, do not provide room for the enjoyable employment of the reader's imagination (1983, 125-7) [my translation]. Tanizaki relies on several pervasive beliefs (in Japan) about the Japanese language, which are based on the social preference for using ellipsis and ambiguous expressions. The idea that using few ambiguous words is in a way "inflexible" is quite pervasive, and a silent man will be respected and an articulate man mistrusted as a result. However, it is important to note that Japanese as a language almost never lacks, either in grammar or vocabulary, the means to be precise, thus forcing it to be ambiguous. Ambiguity arose from a socially enforced idea of what is and what is not polite. Due to the "fog" created by the ambiguous use of language Kawashima concludes that the boundaries of rules in general, and legal rules in particular are invisible to the Japanese, lead to a situation which results in a lack of a legal consciousness. Are Japan's Laws Ambiguous? It is necessary to comment on Kawashima's claims that Japan's laws are ambiguously constructed, and that their enforcement is also subject to ambiguity, i.e. enforcement is arbitrary. Kawashima fails to supply any examples to substantiate his thesis of ambiguous legal provisions (1967, 37-43). Statutory codes are not ambiguous or at least not intentionally so. Where some unexpected ambiguity is identified in a court action then amending or addinglegislation will usually follow to rid the ambiguity in the same manner evidenced by Western legal systems. On the other hand the case for ambiguity of enforcement is ubiquitously found. For example, although prostitution is illegal in Japan (Law on the Prevention of Prostitution No.118, 1956) there are numerous commercial sex zones which are infrequently prosecuted. Similarly, despite the illegality of most forms of informal gambling more than half the adult male population are engaged in illegally gambling, playing pachinko (a form of pinball) for money without any attempt by the police to intervene. The effect of the authorities turning a blind eye to the reality of the daily breach of various criminal laws is to undermine the idea that laws aim to establish absolute values largely beyond situational modification, and instead leads to a "case by case" or "situational" value system. Examples of Lack of Legal Consciousness Kawashima goes into detail on the lack of consciousness of legal rights of profession and of contract, giving a variety of examples (some rather strange) in support of his argument. Ownership Kawashima maintains that in Japan a consciousness of rights of possession or ownership is not well developed. He provides several examples of this. First, he cites the fact that among Middle School students participating in their school memorial trip (shugaku-ryoko) shoplifting sprees are not uncommon, but are apt to be ignored by being regarded as mere naughtiness (itazura) and are thus generally forgiven. In discussing this phenomenon a distinguished Japanese novelist suggested in a column in a weekly general magazine that "naughtiness" of this kind derives from "innocence" (junsui) and is a natural accompanying matter of such an innocent state (Yamaguchi, 1965, 72-3). Presumably Kawashima mentions this to maintain that both the Middle School students and the adults who forgive their acts of theft as "naughtiness" lack the consciousness to regard shoplifting as criminal conduct (Kawashima, 1967, 75-6). Second, Kawashima argues that the likely reactions to acts of trespasses in Japan would be quite unusual, and that this derives from a lack of a consciousness of the right to exclusive possession of land which is privately owned (ibid., 77- 8). Finally, a related point becomes clear with reference to the widespread practice of providing "side benefits" (yakutoku) in commercial or administrative activities. Such side benefits take the form of a gift in kind or money, or even services provided without charge. Kawashima argues that this custom, which blurs the distinction between personal and corporate property (and in some cases, personal and publicly owned property) arises from a lack of consciousness of this distinction, due to a lack of significance of property rights (ibid., 80-5). It is suggested that Kawashima may have been carried away in his attempt to support his hypothesis of the lack of a legal consciousness in Japan. In the case of the young shoplifters it seems strange to attribute their behaviour as a form of innocence. A better explanation of their conduct may be that they were fully aware shoplifting was illegal, but were also aware that punishment was most unlikely and were thus persuaded that shoplifting offered some risk-free thrill. Additionally, the failure to overlook trespassers is not unique to Japan, and can be found elsewhere without a corresponding lack of legal consciousness, and may simply reflect the fact that trespassers are not much regarded as hostile beings in Japanese society. ContractThe Reluctant Japanese Litigant A 'New' Assessment by Masayuki Yoshida Electronic journal of contemporary japanese studies Discussion Paper 5 2003 Introduction In general there are two competing academic viewpoints that try to explain the fact the civil litigation in Japan is not frequently resorted to as a means to settle a wide variety of disputes. In Japan there appears to be a preference for mediation and conciliation. This is in sharp contrast to how similar disputes might be settled in the United States and elsewhere in the Western world, where some forms of legal proceedings would constitute an initial position. At the risk of an oversimplification, the two schools of thought can be set out as follows: (a) The views of Professor Takeyoshi Kawashima (1967) that the Japanese lack a "legal consciousness", and do not conceive of or define their relationships and transactions in terms of legally enforceable rights. I shall call this the "Mindset argument" (b) The criticism of Kawashima by the American academic John Owen Haley (1978) which concludes that the reluctant Japanese litigant is a "myth", and the major cause of limited litigation is the lack of legal machinery, in terms of a shortage of lawyers, judges and a non- functioning court process, which is designed to inhibit litigation rather than facilitate it. This leads to a "pragmatic" rejection of litigation as "not paying". I shall refer to this as the "Pragmatic argument". I shall consider both viewpoints in this essay and suggest neither is entirely correct nor entirely incorrect, rather by adopting a dynamic assessment of the social relationships of would-be litigants and carefully considering the socio-psychological factors which control human interaction in Japanese society, we will be in a better position to understand why a lawsuit in a given situation may or may not be entered. Haley Argues that Litigation Does Not Pay In the introduction to his provocative essay "The Myth of the Reluctant Litigant" (ibid.), one of very few studies written by non-Japanese academics, Haley comments: The belief that the Japanese are an exceptionally non-litigious people is remarkably pervasive. Commentators, both within and without Japan, are almost unanimous in attributing to the Japanese an unusual and deeply rooted cultural preference for informal, mediated