by Laura Specker Sullivan, Ph.D. and Dan Rosen, J.D.
As Fairchild et al. describe in a forthcoming issue of the American Journal of Bioethics, the American debate on social distancing regulations has pitted those protesting unacceptable state limitations on individual rights versus those demanding that individual rights to protection create a government obligation. That the debate over social distancing in the United States is playing out in the space of rights is not surprising; as commentators have noted, recent is grounded in a tradition of individualism that frequently finds itself at odds with the common good.
Given the created by debates on social distancing, we believe it is helpful to acknowledge that there are other ways of sorting out the rights and obligations of individuals and the government in the face of this pandemic. As scholars of Japanese law and philosophy, we have been struck by the conflicts emerging over social distancing in Japan and the different forms of debate taking place there.
While we do not wish to overemphasize the differences between the two countries, and a rights discourse certainly exists in Japan (e.g., Eric Feldman, The Ritual of Rights in Japan), it is helpful to recognize differences in public debates over social distancing in other countries such as Japan, which has a legal system with many similar features to our own, in part due to American involvement in . By attending to the interaction between law and society in the response to COVID-19 in other countries, we can better appreciate the idiosyncrasies of our own national response.
It is helpful to think of the approach to social distancing in Japan as one of mutual self-restraint. As we explain below, the Japanese government is showing restraint by not using its full power to enforce social distancing. Likewise, citizens are using self-restraint through 自粛(jishuku), limiting their own actions. Unlike the U.S. Constitution, the Japanese Constitution even has an “abuse of rights” provision that directly circumscribes assertions of individual rights. Article 12 states that “The freedoms and rights guaranteed to the people by this Constitution shall be maintained by the constant endeavor of the people, who shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.”
In Japan, the government is not asserting the authority to enforce social distancing regulations that it does in the United States. In the current state of emergency, it is only requesting that people stay home and for those who do not (it would have been possible to legislate penalties through the Diet, but this route was not followed). The self-limitation of enforcement during an emergency derives from concerns about that violated civil liberties. It echoes other laws that prescribe or proscribe behavior without attaching penalties and reflects a hesitation to impose when individuals and companies can be prevailed upon to comply at their own discretion.
This approach heavily depends on social pressure for enforcement, such as “naming and shaming” of and Tokyo that remain open during the pandemic. Described by one article as “” rather than social distancing, pachinko parlors’ flaunting of social distancing requests by the government have led government officials in Osaka and Tokyo to visit establishments in person and attempt to convince them to close. This remarkable use of interpersonal techniques is not necessary in the United States, where the declaration of a state of emergency carries with it the more substantial sanction of government enforcement.
Yet, social pressure will not always work. In Japan, much business is accomplished by office personnel signing documents with a hanko, a personal seal that , and are still a surprisingly common means of communication. Instead of highly visible protests by a minority of individual rights activists to open businesses, as in the United States, in Japan noncompliance has come from employers who, by and large, do not allow – the equivalent of hourly or part-time workers who do not have full-time salaries – to work from home. Many regular workers have been going to their offices too, either because of expectations of their employers or their own sense of duty.
This is also a symptom of restraint of government action in Japan. As with pachinko parlors, the government is not requiring employers to comply with requests to allow workers to work from home. has “insisted that the ministry has no authority to force companies to shift to teleworking. The ministry, therefore, is unwilling to investigate complaints from workers, and it will not urge companies to improve working conditions based on these claims.” Needless to say, labor lawyers in Japan have taken up some of these cases.
Finally, much has been made over the different approaches to mask-wearing in the U.S. and Japan. Masks are popular in Japan for people who are sick (even if only with a cold) and also those with hay fever, and are a familiar sight for anyone who previously has visited Japan. The habit of wearing a mask is actually something during the 1918 flu pandemic, but since the early 2000s it has taken on a new moral meaning: a duty of one who is sick to wear a mask so as to not infect others. It is a visible reminder of the exercise of individual discretion for the sake of public welfare. Wearing masks can now be thought to represent a form , which, given the current state of the coronavirus pandemic, is likely a most appropriate response.