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投稿者 : ld-sylff

Action to Address a Stakeholder-Identified Need: Development of a Questionnaire to Improve Resolution after Medical Injury

July 27, 2020
By 25572

Associate Professor Jennifer Moore, a former Sylff fellow at Massey University in New Zealand, implemented a research project to assess the needs of injured patients and their families after medical injury with funding from Sylff Leadership Initiatives (SLI) from January 2019 to April 2020. The survey tool she developed and refined throughout the project is expected to facilitate better and happier reconciliation processes between healthcare organizations and injured patients and families after medical injury.

* * *

“I wish there had been a questionnaire like this that was given to me after the hospital injured me! I recently had a hip replacement, and the provider posted a survey to me. It was so bad that I didn’t complete it. I thought, ‘Do these people have common sense? What does this mean?’ I wonder if they didn’t do what you are doing and [trial] the survey with the actual patients. I think it is so important to actually trial test it on patients first.” (Injured patient from New Zealand, comments during a cognitive interview, January 2019. The word in brackets in the quotation was edited by the author).

Introduction

This project was the first to attempt to develop a questionnaire to assess injured patients’ and families’ needs after medical injury. We pretested a draft version of the questionnaire with injured patients and families in New Zealand and the United States. In the quotation above, the injured patient highlights the importance of pretesting questionnaires to increase the likelihood that it will be an effective tool.

Medical injury is unexpected harm caused by medical care. After heart disease and cancer, medical injuries have been identified as the third leading cause of death in the United States; this conclusion is consistent with findings from research undertaken in other countries, such as Canada, Japan, and New Zealand, and these statistics have generated calls for “greater attention” to medical injury because of the scale of this global issue.[1] An additional well-documented issue is that healthcare institutions’ responses to medical injuries, particularly their attempts at resolution, frequently fail to meet patients’ expectations and needs.[2] The literature also highlights that poor responses from healthcare organizations exacerbate the psychological, physical, and financial effects of medical injuries.[3]

During my recent research about the resolution of medical injury, the key stakeholders and participants identified another important social problem that requires action. Most healthcare organizations are interested in doing a better job of meeting injured patients’ and families’ emotional, informational, and practical needs after medical injury but currently lack tools to evaluate how well they met those goals.

Jennifer with her daughter Rebecca and two research participants

Research Objective, Methods, and Dissemination

Therefore, this project’s key objective was to address that gap, and stakeholder-identified need, by developing a questionnaire that healthcare organizations can use to assess how well they met the needs of patients who suffered medical injuries during their care. To develop the questionnaire, we undertook the following steps.

We designed a draft version of what we call the Medical Injury Reconciliation Experiences Survey (MIRES). This draft was based on findings from our two previous studies of injured patients’ experiences of nonlitigation approaches to resolving medical injuries.
We performed a content analysis of transcripts from a stratified random sample of interviews conducted with injured patients in New Zealand and the United States in 2015–16.
We extracted themes describing what is important to patients following medical injury and developed a draft questionnaire with question domains and items corresponding to these themes.
We revised the draft questionnaire following review and feedback from expert clinicians, risk managers, and patient advocates.
We pilot tested the revised questionnaire on a sample of 24 injured patients and family members in the United States and New Zealand, conducting cognitive debriefing interviews focused on the comprehensibility and completeness of the questionnaire.
We further revised the instrument based on this feedback. Thirty-seven revisions were made in response to their suggestions.
We traveled to New Zealand to disseminate and implement the questionnaire to key stakeholders in New Zealand, such as district health boards' public hospitals, the Ministry of Health, the Accident Compensation Corporation, and the patient advocacy group Acclaim. I traveled around New Zealand (particularly Christchurch, Dunedin, and Wellington) to meet with representatives from the key stakeholder organizations to explain the questionnaire to them and to discuss how best to implement it in their organization.
We are in regular, ongoing contact with the representatives of the key stakeholder organizations in New Zealand to answer their questions about the questionnaire and to ask about their initial experiences using it.
We submitted a paper to an academic journal that reports the results of the survey development.
After the COVID-19 travel bans are lifted, we will travel to New Zealand again at the stakeholders’ request to discuss implementation progress and to undertake any further edits to the questionnaire that may be required.
Once the COVID-19 travel bans are lifted, I will also travel to the United States again to discuss implementation progress at the participating hospitals. The intention was to visit the United States in May 2019, but that trip was canceled because of COVID-19. (Sylff funded the New Zealand part of the project, not the US part. We are very grateful to Sylff for their support.)

Once our research paper is accepted, it will be important to disseminate the paper, because our project is the first to attempt to develop a questionnaire to assess injured patients’ needs after medical injury. Further research could use our questionnaire to undertake a full validation study.

The final version of the questionnaire included the following domains:

perceptions of communications with healthcare providers after the injury (11 items);
perceptions of remedial gestures, such as apology and compensation (12 items);
indicia of the patient’s overall satisfaction with the reconciliation process (3 items);
the nature and impacts of the injury (5 items); and
characteristics of the patient (5 items).

Conclusion

Jennifer with a patient's research participant's puppy during the cognitive debriefing interview about the draft questionnaire.

Injured patients and their families expressed the view that they appreciated the opportunity to assist with the survey design process. The survey was feasible to administer with pencil and paper, taking around 10 minutes to complete. The MIRES appears to be comprehensible and acceptable to patients and offers a practicable means by which healthcare organizations can assess how well their reconciliation processes are meeting injured patients’ needs. One of the US patients who participated in this project observed that the “questionnaire has the power to help so many other patients like me.”

[1] Martin Makary and Michael Daniel, “Medical Error—The Third Leading Cause of Death in the US,” British Medical Journal 353 (May 2016): 2139, https://doi.org/10.1136/bmj.i2139.

[2] Frederick S. Southwick et al., “A Patient-Initiated Voluntary Online Survey of Adverse Medical Events: The Perspective of 696 Injured Patients and Families,” BMJ Quality and Safety 24, no. 10 (October 2015): 620–29.

[3] Elaine O’Connor et al., “Disclosure of Patient Safety Incidents: A Comprehensive Review,” International Journal of Quality in Health Care 22, no. 5 (October 2010): 371–79.

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投稿者 : ld-sylff

Support Programs and COVID-19 (Updated July 22, 2020)

July 22, 2020

The Sylff Association secretariat regrets to inform you that no new applications for support programs (including Sylff Research Abroad, Sylff Leadership Initiatives, Sylff Project Grant, and Local Association Networking Support) has been accepted since July 22, 2020. This is in light of the difficulty of conducting activities entailing long-distance and overseas travel as well as convening gatherings of large groups of people under the current COVID-19 situation. We will continue to monitor the situation with the COVID-19 outbreak, and update you if there are any changes in support programs.

For current support program participants, there is no change in the operation as announced on April 6, 2020. If the current situation prevents you from completing your activities as proposed, either partially or entirely, please contact sylff[at]tkfd.or.jp (replace [at] with @) to share details and discuss ways to deal with the situation.

During this period, the secretariat will reshape the support programs in such ways as to promote fellow’s academic advancement and leadership development so they may better fulfill Sylff’s mission in spite of changing social conditions.

The secretariat also welcomes new ideas on programs from Sylff Association members that may be implemented not just during a pandemic but also as we return to a reality that is likely to have been vastly transformed by the events of this year. Please share them with the secretariat by the end of September 2020 so we can take them into account during our review.

We continue to be committed to supporting Sylff fellows. We regret having to suspend and reshape the support programs but hope to come up with innovative ways to move forward in the face of these unprecedented challenges.

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投稿者 : ld-sylff

Fundraising Launched to Enable Sylff Fellows to Continue Their Studies

July 21, 2020

The Sylff Association secretariat has launched a fundraising campaign-How to Give- to help finance COVID-19 Relief for Sylff Fellows. As already announced, this relief is intended to enable currently enrolled Sylff fellows to continue their studies and research toward their degrees without worrying about their finances due to COVID-19. For details, please refer to the relief initiative page.

We are seeking donations to help defray Sylff fellows’ living expenses and encourage them to continue their studies and research at their home Sylff institutions despite the current difficulties.

Donations may be made via bank transfers or through an online system using credit cards. Bank transfers can be made as of today. The online system will be launched and announced shortly. For details, please visit How to Give.

The secretariat hopes that members of the Sylff community, not only Sylff fellowship recipients but also others affiliated with Sylff institutions, will take this opportunity to show their support for current fellows and increase their engagement with our community.

Fellows eligible to receive support have been identified in collaboration with the Sylff steering committees of all 69 Sylff institutions.

(Campaign closed on November 13, 2020.)

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Start of COVID-19 Relief for Sylff Fellows

July 17, 2020

The Sylff Association secretariat is pleased to announce that disbursement of relief funds to Sylff fellows has begun.

More than 300 fellows were identified as eligible for COVID-19 relief* by the steering committees of Sylff institutions. They will be contacted by the secretariat regarding the details of the relief, equivalent to three months living expenses.

This initiative is intended to enable currently enrolled Sylff fellows to continue their studies and research toward their degrees without worrying about their finances due to COVID-19.

* Fellows eligible for COVID-19 relief are those who are currently enrolled in a master's or doctoral program at their home Sylff institutions and who will still be enrolled in the degree program at that institution in September 2020. If you meet this eligibility criteria but have not been contacted, please inquire about your status with the Sylff steering committee of your institution. Also please read the FAQs at https://www.sylff.org/covid-19-relief-for-sylff-fellows/.

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投稿者 : ld-sylff

Exploring Nuclear Transitions: In Quest of a Framework

July 14, 2020
By 26651

Shounak Set, a Sylff fellow from Jadavpur University, is currently pursuing his PhD at King’s College London. His SRA was conducted at Jadavpur University, which is home to the oldest and largest international relations program in India and is also distinguished by close institutional ties with the Indian defense research establishment. The field trip culminated in immeasurable value for his doctoral dissertation.

* * *

In the second half of the twentieth century, the advent of nuclear science left an indelible imprint in the practice and study of international relations. Nuclear proliferation refers to the spread of nuclear technologies and energy for both civilian and military purposes. Given the political and technological ramifications of the nuclear sector, the nuclear policies of states are essentially a subset of their foreign policy, but they are driven by a variety of discrete considerations. With its apocalyptic potentials, nuclear energy can devastate humankind through atomic weapons, but they can also be a harbinger of prosperity if harnessed for generating electricity. That being the case, when do states use nuclear energy for cooperation, and when for confrontation?

The author meeting with Avtar Singh Bhasin, an eminent archivist of Indian diplomatic history. A one-man army, Mr. Bhasin, having retired from the Ministry of External Affairs, voluntarily collects and publishes relevant documents that are otherwise inaccessible for the benefit of researchers.

The urge to answer these questions resulted in a six-month field trip to India from mid-September 2019 to mid-March 2020, where Jadavpur University served as the host institute. India represents both a challenge and an opportunity for academic engagement on account of its scale and complexity; and it questions several prevailing tenets and assumptions of international relations. At once a rising power and an impoverished nation, both a young state and a legatee to an ancient civilization, it simultaneously confirms and contests prevailing tenets of social science and poses unique challenges of research design. The first country to call for nuclear disarmament on the global stage in 1955, India conducted a series of nuclear weapons tests in 1998 to herald a new epoch. Likewise, after decades of righteous indignation at the institutionalized arbitrariness of the global nuclear order, India was eventually accommodated there in an unprecedented manner through the India-US Civil Nuclear Agreement of 2008. In addition to the selection of India as a case, the specific focus on these historical events underscored that the area of focus was situated along several research paradigms including but not limited to international security, science and technology, global order, and political contestation.

Brass Tacks: The Exercise

The field trip—as part of a doctoral study at King’s College London that interrogates the conventional understanding on these two episodic events, namely the 1998 nuclear tests and the India-US Civilian Nuclear Agreement of 2008—was undertaken with the primary aim of data collection, which was to be supplemented by discussions with topical experts. The primary sources mostly comprised interviews and archival material, and the absence of declassified material on the thematic area of focus (nuclear decision-making and proliferation), along with the associated sensitivity of the subject area, impelled an exercise in triangulation research through an interdisciplinary prism. Accordingly, data was collected from multiple sources in tandem with elite interviews among a wide range of individuals comprising mostly retired diplomatic, security, and political functionaries who had been direct participants in the cases under study. The initial plan was to conduct 20 interviews, but 35 interviews were ultimately conducted across New Delhi, Kolkata, and Bangalore through snowball sampling; this to led to progressive uncovering of diverse aspects. In order to facilitate optimum utilization of resources, archival research in New Delhi and Kolkata was conducted concurrently with the interviews rather than following a sequential approach.

The author interviewed Dr. V. S. Arunachalam, the scientific advisor to successive Indian defense ministers from 1982 to 1992. Dr. Arunachalam has been intimately associated with the Indian missile and nuclear weapons development programs.

Along with the above, discussions and consultations with 16 topical experts were also undertaken, which contributed toward refining the project by clarifying several aspects. Requisite steps such as anonymization of certain interviewees and data security protocols were followed for storage of confidential data and protecting the identities of key personnel as per considerations of security and research ethics.

Research Redux

Essentially probing the intersection between nuclear policymaking and domestic factors in India, the study adopts process tracing to analyze policy transformations through a foreign policy change framework. In conducting in-depth case studies of major foreign policy changes in the recent past, it hypothesizes that domestic politics gain salience during points of significant transformation and leverages the findings in a theory-building exercise through Bayesian reasoning. This approach accounts for the diversity of ideational and institutional forces at play in these policy transitions of historic magnitude; these forces remain inadequately addressed by extant studies, which are circumscribed by linear approaches characteristically prioritizing global-level variables at the cost of the domestic and vice versa.
While the nuclear tests in 1998 heralded a “Second Nuclear Age” in tandem with the realities of the global shift of power from the West to the East, the India-US Civil Nuclear Agreement of 2008 epitomized a metamorphosis of the global order through an irreversible transformation of the international nonproliferation regime. These events portended global ramifications, marked a drastic reorientation of India’s external behavior, and were accompanied by salient domestic political realignments.
Cognizant of these manifested confluences of global, regional, and domestic factors, this study eschews singular explanatory frameworks and attempts to construct an integrative model that explains major policy transformations. The research identifies political parties as the salient vector of domestic politics and probes the interface between political parties and major foreign policy outcomes of the recent past. Political parties form the government, which conducts foreign policy. However, scholars of comparative politics deal with political parties but leave the study of foreign policy to their counterparts in international relations and vice versa. In the process, the interlinkage between political parties and foreign policy remains in the shadows. While studies on political parties in international relations are scarce in general, in the case of India, there is a conspicuous absence.

Relevance and Outcome
The quality and quantity of the accumulated data has contributed substantially to the structural robustness of the key argument and has convinced me to add another chapter to my dissertation. The number of chapters based on my field trip data stands at three, in contrast to my initial plan of two for the same. With the progression of the field trip, the unpacking of historical cases and their attendant complexities corroborated the initial formulations of the study, which had problematized the conventional narratives.

The author after an interview with Mr. Maharaja Krishna Rasgotra, the Indian foreign secretary from 1982 to 1985. Having joined the Indian Foreign Service in 1949, Mr. Rasgotra has been involved in several historic moments in Indian diplomacy, and his counsel has been sought by successive prime ministers of India.

While the bulk of the literature is premised on the insularity of domestic politics in the conduct of Indian diplomacy, this study finds that major foreign policy changes are not generated by exogenous factors alone; and despite its limited salience in regular times, domestic politics gain a critical dimension during these moments of transition. This is crucial, since it reflects foreign policy making in a rising power and builds on a growing body of research on rising powers in international relations. The major findings indicate a gap between existing conventional postulates and the empirical specificities, as the timing of the 1998 nuclear tests and the unprecedented reorientation of the international nuclear order through the India-US Civil Nuclear Agreement contest existing theories of international relations. These include a global-domestic dichotomy in the process of salient junctures and a limitation of path-dependency models.
Previously unexamined primary sources highlighting the need for alternate explanations of historical cases were uncovered and pose significance for potential revision of extant conceptions and assumptions. The collected data facilitates the broadening and widening of the empirical and conceptual templates of foreign policy analysis, which remains anchored in a Western setting. While the process has affirmed the major observations of the study prior to this field trip, it has also led to a reappraisal and update of some earlier formulations of this study.

Concluding Remarks

Professor Shibashis Chatterjee, the director of the Sylff Program at Jadavpur University, acted as the local supervisor and added considerable value to the project. Professor Chatterjee happens to be the director of the School of International Relations and Strategic Studies and an acknowledged expert in the specific topic as well, with acclaimed publications to his name. While our interactions in themselves proved to be intellectually enriching to the project, Professor Chatterjee also made efforts to help me access relevant institutions and provided consistent administrative support. The latter proved to be crucial as, toward the end of 2019, India was witnessing severe political upheaval, which generated grave law and order issues and adversely affected my schedule. Since the completion of the project, he has also emerged as a benevolent mentor concerned about my professional and social well-being in the true spirit of the Sylff family.
The extended Sylff community at Jadavpur University provided a friendly and welcoming milieu that made my stay in India pleasant and memorable. In retrospect, the field trip facilitated by the Sylff Research Abroad program has not only been of immeasurable value to the doctoral dissertation, but it has also been instrumental for my professional growth. In the vortex of the twenty-first century, radical trends typically overwhelm extant arrangements and generate new challenges without resolving older ones. Against this backdrop, this journey has been immensely fulfilling at both the emotional and intellectual levels and shall enable me to embark on my career as a scholar engaged in the study and promotion of international peace and human understanding.

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投稿者 : ld-sylff

Rescuing Latin American Thought on Contemporary Subjectivity

July 6, 2020
By 26648

Using an SRA award, Flavia Ferretti crossed the Atlantic Ocean obliquely from Latin America to Western Europe to conduct research on an Argentine philosopher, León Rozitchner.

* * *

León Rozitchner

The problem of subjectivity and the study of its processes has been one of the central axes of contemporary thought. The works of important philosophers of the last half century, such as Michel Foucault, Gilles Deleuze, and Felix Guattari, to mention some of the most distinguished names, have been dedicated to the study of different aspects of this problem, elaborating some of the most extended interpretative frameworks in the field of current thought.

The theoretical importance acquired by the question of subjectivity is related to the emergence of social problems that challenged both philosophical thought and the human sciences in the historical period beginning in the early 1970s. These problems include changes in cultural identities due to the intensification of migratory processes, modifications in workers’ identities as a consequence of the processes of deindustrialization and productive reconversion of vast territories, the impact on subjectivity of the massification of consumption and access to credit, impacts of the growing incorporation of women into the labor market, youth cultures, and the emergence of authoritarian, antidemocratic, and conservative attitudes. The relevance and urgency of understanding these social phenomena in a deeper way was one of the first motivations I had to place my doctoral research in the field of studies on subjectivity.

The entrance of the Ibero-American Institute in Berlin, Germany.

However, the existing international division of intellectual work has meant that the predominant theoretical frameworks for addressing the problem of the production of subjectivity are mainly Euro-American and that even within Latin America the theoretical elaborations developed by local thinkers are unknown or undervalued. Academic interest in Latin America is concentrated on topics linked to its socioeconomic problems, to indigenous populations, or to cultural productions such as literature, music, and cinema. Nevertheless, with rare exceptions, thought and philosophy produced in the continent are ignored beyond small circles of specialists. Even today, Eurocentrism remains a deep-rooted problem in the humanities and social sciences, and this is another one of the reasons that led me to focus my doctoral research on the study and enhancement of Latin American thought on the issue of subjectivity based on the work of León Rozitchner, an Argentine philosopher whose theoretical work on this issue deserves to be better known and disseminated.

The research that I am developing aims to contribute to the knowledge of Latin American reflection on the problem of the production of subjectivity from the second half of the twentieth century onward. Specifically, the object of study of this doctoral thesis is the problem of the production of subjectivity in the work of León Rozitchner, who made substantial theoretical elaborations on this problem despite the scarce references to his work in the field of studies on subjectivity in the continent and in the field of contemporary philosophy.

Reading Room of the Ibero-American Institute.

León Rozitchner was a philosopher and psychoanalyst who lived between 1924 and 2011. He studied in Buenos Aires as well as in Paris, where he made contact with the generation of philosophers who dominated the French cultural field after World War II, such as Jean Paul Sarte, Claude Levi-Strauss, and Simone de Beauvoir. Because of the military dictatorship that ruled Argentina between 1976 and 1983, Rozitchner had to go into exile in Venezuela, where he continued his intellectual work at the Central University. In 1985 he returned to Argentina, and until the end of his life in 2011 he worked as a professor at the University of Buenos Aires. His philosophy focused on the problem of subjectivity and the mechanisms through which it is constructed. His work brings together elements of psychoanalysis, phenomenology, and Marxism, with which the author elaborates an original and solid philosophical proposal. Among his main books are Freud y los límites del individualismo burgués (Freud and the limits of bourgeois individualism, 1972), Perón: Entre la sangre y el tiempo (Between blood and time, 1985), La cosa y la cruz: Cristianismo y capitalismo (en torno a las Confesiones de San Agustín)

(The thing and the cross: Christianity and capitalism [Around the Confessions of St. Augustine], 1997), and Materialismo ensoñado (Dreamlike materialism, 2011).

With this research, I intend to develop a study of the complete work of this thinker that will allow us to determine the treatment he gave to the subject throughout his intellectual journey, as well as to establish the axes that articulated his reflection and the continuities and ruptures in his theoretical production on the problem in question. Also, the research seeks to establish the passages between his thought and the social, political, and cultural processes of Argentina and the continent in the historical period during which he developed his work and to reconstruct the positions he occupied in the intellectual field of which he was a part. Furthermore, this work aims to install this representative of Latin American philosophy in contemporary discussion, by making his work engage in a dialogue with the most renowned intellectuals in the field of thought, specifically with those who have dedicated themselves to reflection on subjectivity.

Meanwhile, beyond these objectives in the academic field, this research has a wider purpose, which consists of contributing to knowledge of relevant aspects of the current human condition and providing elements for public debate on some of the most pressing contemporary social problems. The processes of production of subjectivity are at the base of many of the phenomena that concern thinkers and citizens in general, such as the authoritarian inclinations of certain social groups; the relationship of social subjects with politics; cultural identities; and the individual and collective effects of changes in the sphere of work. The proposed research will make a contribution in that it will generate new knowledge in a study field that helps to understand these complex social phenomena. This research, therefore, will not only strengthen an academic domain of study but will also provide elements for public deliberation by offering modes of intelligibility of social processes of general interest.

In the course of this research, I have been supported by the Sylff Research Abroad program, which allowed me to spend three months at the Ibero-American Institute (IAI) in Berlin and access a huge amount of bibliographic and archival material that is inaccessible in Chile. The IAI, founded in 1930, is an interdisciplinary research and documentation center on Latin America, the Caribbean, Spain, and Portugal. The institute has the largest European archive on the Latin American world and receives tens of researchers from different parts of the world every year.

In addition, this research stay allowed me to meet and interview academics and researchers dedicated to Latin American thought and present the results of my research to teams of specialists. All this enriched my research process and helped me to advance in the elaboration of my thesis. Therefore, I am grateful to the Sylff Association for supporting researchers who have social commitments and whose research seeks to contribute to the strengthening of democracy, social justice, critical thinking, and democratic dialogue.

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投稿者 : ld-sylff

Multi-Dimensional Challenges, Multi-Sectoral Innovations: The Resilience of Common Forest Management in Japan

June 22, 2020
By 26719

Yance Arizona [1] is a 2011 Sylff fellow from the University of Indonesia and currently a PhD candidate at Leiden University in the Netherlands. Using an SRA award, he visited the Osaka University of Tourism in Japan and the University of New South Wales in Australia to sharpen the comparative elements of his research on customary land recognition in Indonesia. In this article, he focuses on lessons learned about the resilience of common forest management in Japan by discussing the challenges and innovations of state and nonstate actors.

*　*　*

Community-based forest management has a long history in rural Japan. Since the Edo period (1603–1868), rural communities have shared their collective land and labor to maintain forest and other natural resources for self-sufficiency. This model of natural resource practice is known as common forest management. The common forest, called iriai in Japanese, became integrated into the traditional village system.[2] The membership of iriai common forest groups is embedded in that of traditional Japanese villages (mura). However, common forest management has slowly changed over time due to internal and external factors since Japan entered the industrial revolution. This article discusses several challenges concerning the current practice of common forest management in Japan. I also reveal several initiatives by the government and citizens to restore collaborative forest management and to renew interest in rural development. The analysis in this article is based on interviews, literature studies, and observations conducted in two rural areas in Japan during my Sylff Research Abroad (SRA) fellowship in November and December 2019.

What Is the Common Forest in Japan?

Many scholars have used the iriai forest or common forest in Japan as an illustrative example of potential community-based management as an alternative to private property ownership and an extractive model of natural resource management (Mitsumata and Murata 2007; Berge and McKean 2015). For a long time, the rural population in Japan has collectively engaged in agricultural activities in shared communal land by planting trees, especially sugi and pine, to meet their daily needs. Iriai groups have collectively cleared, planted, maintained, and harvested forest products to provide mutual benefits among the members. The membership of the common forest group was initially based on the membership of a village. Since the Japanese government installed modern development programs, primarily through the Meiji Restoration (1868), many traditional concepts, laws, and activities have slightly changed. In the following section, I will discuss five concerns about recent developments in common forest management in Japan.

Five Challenges of Common Forest Management

The common forest practice in Japan faces multidimensional challenges. Here I will briefly discuss five major challenges of the common forest in Japan, including demographic, economic, environmental, institutional, and regulatory factors.[3] Firstly, legal uncertainty leads to misrecognition and disputes among iriai rights holders (regulatory factor). During the Meiji era (1868–1912), Japan’s Civil Code began to take effect. The Civil Code is a mark that Japan began incorporating a modern legal system inspired by the German and French legal traditions (Kanamori, 1999). Regarding the property right regime, the modern Civil Code strictly divides land property into private and public properties (Suzuki, 2013: 67–86). In short, private property is in the ownership of individual citizens, whereas public property belongs to the state or other public bodies. This dichotomy leads to uncertainty regarding the legal status of iriai forests because the iriai model cannot be categorized as either private or public property. As a result, Article 263 of the Civil Code considers the common forest to be in the co-ownership of a group of citizens. By contrast, Article 294 stipulates iriai as the right of the local population to use state land or forest. Neither of these articles represents the original model of iriai forest rights, which combine communal and individual land ownership.

Misrecognition of the legal status of the common forest in the Civil Code generates ambiguity in land registration practices. Iriai rights holders have to register their common land and forest under “nominal names” on behalf of other legal entities. Gakuto Takumura (2019) demonstrates six models of how iriai rights holders register their communal land rights. These six models of adaptation to the modern land administration system appear in the registration of a common forest on behalf of other legal entities, such as (a) a leader of a village, (b) several leaders of a village, (c) all household heads in a village, (d) a shrine or temple of a village, (e) a new municipality, or (f) a district, a cooperative, or an authorized community association. Registering the iriai right under nominal names has occasionally caused legal disputes among the iriai rights holders. One case that received much attention in Japan was the Kotsunagi case, which took decades for the courts to settle (Inoue and Shivakoti 2015).

The author gives a guest lecture on customary forests and tourism in Japan and Indonesia at the Osaka University of Tourism. Detailed information can be found at https://www.tourism.ac.jp/news/cat3/5810.html.

The second concern is government imposition of the modernization of iriai forest management (institutional factor). Besides the legal status, another institutional challenge to the iriai forest is the modernization of the rural administrative system. In the early period of the Meiji era, the Japanese government announced a policy to modernize village governments. The modernization of village government affects iriai forest management because iriai group membership was traditionally based on membership in a traditional Japanese village. This challenge parallels the general trend in rural Japan to merge villages rather than splitting them into several smaller villages. When two or more villages are merged, a question arises regarding the ownership and membership of iriai rights, whether it still belongs to the initial village that has merged or it becomes the co-ownership of the new village union.

Another striking policy by the Japanese government to modernize iriai forest management is the Modernization of the Common Forest Act of 1966 (Takahashi and Matsushita 2015). This act intended to transform traditional common forest practices into modern forest management. However, the implementation of this act did not result in a uniform model of forest management; instead, the act has been adopted in different models of forest management depending on the social conditions of iriai rights holders. Research by Daisaku Shimada (2014) revealed how rural communities in the Yamaguni district in Kyoto adapted to the Modernization of Common Forest Act and other external influences, such as population change and the timber liberalization policy in securing common forest management. Rural communities modify their common forest institution to allow migrants to be members of new forest management boards.

The third challenge is depopulation and urbanization (demographic factor). In contemporary Japan, depopulation and urbanization are central issues in the debate on rural development. Japanese society is experiencing depopulation because of a low birthrate and an aging population. At the same time, the urbanization level is dramatically high. Many young people move away to live in urban areas, leaving the rural areas mainly inhabited by older generations. Depopulation and urbanization affect the membership and decision-making process in common forest management. The membership of iriai forest groups shrinks as some of the members move to the city or elsewhere, causing a reduction of the workforce in the management of the common forest. In the past, iriai rights holders lived permanently in a village. When someone moved to other villages, his or her rights to the iriai forest vanished. Today, some people consider their rights to remain valid even when they have moved to other villages. Another problem in terms of people’s mobility concerns the decision-making process in common forest management. Traditionally, iriai rights holders decide on common forest management through a consensual agreement among the group members (Goto 2007). If a member of the iriai group is not involved or disagrees with the majority opinion, it means that the group has not reached a consensual decision. Currently, some iriai groups apply flexible categorization to their common forest membership by including newcomers to the board and involving them in the decision-making process. The lack of a clear decision-making process and a shrinking workforce have led to the underuse of iriai forests in several places in rural Japan.

The fourth problem is the timber liberalization policy (economic factor). In the 1960s, the Japanese government introduced a timber trade liberalization policy to support industrial development. This policy increased timber import from other countries, mainly from the United States, Russia, and Southeast Asian countries. As a result, this strategy decreased the competitiveness of domestic timber production and the economic value of wood, which has been the core commodity of common forests. Before the timber liberalization policy, the common forest supplied wood for building houses, offices, castles, and temples, as well as for making furniture, and provided firewood for cooking and heating. From the 1960s onward, as the country entered a period of rapid economic growth, Japan replaced the use of wood with other resources. The use of concrete and steel is more dominant for residential buildings and offices, and the use of fossil fuels in place of firewood is increasingly widespread. In addition, to meet domestic wood demand, the Japanese government no longer relies on domestic supplies and relies instead on imported wood. This timber import policy devastated Japan’s domestic timber production and market. Consequently, the core business of iriai forests, that of meeting domestic wood demand, has gradually declined. Lack of productive activities in rural areas also became one of the drivers for rural people to move to big cities.

Together with a group of postgraduate students from Kyoto University, the author visits a private forest in Kawakami Mura, Nara Prefecture. This forest site is the oldest planted forest in Japan.

The final concern relates to land degradation (environmental factor). Iriai rights holders maintain the common forest by growing supporting plants around the main trees. These plants support soil fertility and provide economic benefits to farmers. However, due to the shortage of labor to maintain the common forest, conifer plantations are left unmaintained. At first glance, this condition looks good for conservation, because forests are left green and trees grow for long periods. But apparently, this is not suitable for the healthy growth of the main trees because they are in competition with the shrubbery. Moreover, unmanaged conifer plantations cause frequent landslides in rural areas. These disasters are compounded by the typhoon and earthquake catastrophes that often occur in Japan. This environmental vulnerability is not only the cause but also the result of underutilization of the common forests.

Revitalization Movements

The revitalization of common forest management in Japan corresponds with an attempt to improve rural livelihoods. The Japanese government and nongovernmental organizations engage in rural development, including the revival of common forest management. The Japanese government, through the Ministry of Internal Affairs and Communications, implements a program to increase the interest of urban residents, either Japanese citizens or immigrants, in living in rural areas. These people from different locations assist rural community members in meeting their basic needs, especially related to health and livelihood. Moreover, the Japanese government promotes a “forest volunteer program” to attract people’s interest in getting involved in forest restoration activities. Forest volunteers are individuals other than forest owners or those with a direct interest, who participate in on-site work necessary for forest management in response to the critical state of the forests. Shinji Yamamoto (2003) found that the forest volunteer program has been generating a positive impact on drawing urban people’s interest in forestry activities. This program began in the 1970s and has since spread across the country. According to Japan’s Forestry Agency, the number of citizens’ organisations that have participated in forest volunteer activities was 2,677 as of 2010 (Yamamoto 2003).

Nonprofit organizations and universities also run several programs to enhance the interest of young generations regarding rural livelihood and environmental management. A crucial example is the kikigaki program. Literally, kikigaki consists of the words kiki (“listening”) and gaki (“writing”). The kikigaki program encourages young people to take an interest in the stories of local people. Kikigaki is a learning method for understanding someone’s life story through direct dialogue. Since 2002, high schools in Japan have adopted the kikigaki method to raise students’ awareness of societal problems faced by rural communities (Effendi 2019). Due to the increase in global attention toward environmental issues, the kikigaki program also covers environmental education for children. Environmental issues allow students to get involved in the revitalization of common forest management. The kikigaki program initially developed in Japan and spread out to other countries, such as Indonesia. I interviewed Motoko Shimagami, who is developing kikigaki programs in both Japan and Indonesia. According to Shimagami, youth involvement is an essential factor in improving rural livelihood and sustainable environmental management. Several years ago, Shimagami conducted a comparative study of common forest management between Indonesia and Japan (Shimagami 2009) and found that similar methods of revitalization of the common forest through the education of high school students are pivotal in both countries.

Matsutake Crusaders, a voluntary group dominated by elders who gather every week to maintain a hill landscape, creating a suitable condition for matsutake mushrooms to grow.

Another initiative that I have seen in Japan is the ecovillage network. An ecovillage is an intentional, traditional, or urban community that is consciously designed through locally owned participatory processes encompassing social, cultural, ecological, and economic dimensions to regenerate social and natural environments.[4] In 2013, I visited the Konohana Family ecovillage in Shizuoka Prefecture. This ecovillage is part of a worldwide ecovillage network. The Konohana Family, though it calls itself a family, consists of 100 members who are not of the same blood. They live in rural areas and cultivate collective agricultural land. With the spirit of “togetherness” as a family, they fulfill basic needs through collective land management. During my visit to Japan with the support of the SRA fellowship program, I visited the Matsutake Crusaders in the northern part of Kyoto. This group consists of more than 30 retirees who gather once a week to engage in collaborative natural resource management. They nurture matsutake, a wild mushroom typical of Japan that has high economic and cultural values (Tsing 2015). They voluntarily cut some pine wood as a precondition to creating a suitable environment for matsutake to grow. Professor Fumihiko Yoshimura, the leader of this group, said that although this initiative is different from the iriai rights model, they called it a satoyama movement. The satoyama concept in landscape management combines forest and agricultural activities, mainly in hill areas. Currently, many rural communities in Japan are involved in satoyama movements (Satsuka 2014). In another location, a study by Haruo Saito and Gaku Mitsumata (2008) shows the integration of matsutake production with traditional iriai land use in Oka Village, Kyoto Prefecture.

This article has illustrated five major challenges of common forest management in Japan. These challenges are responded to with a variety of innovations by the government and nongovernment organizations to help the common forest practices survive in supporting rural livelihood. These innovations to revitalize community-based natural resource management have been developed with various narratives such as environmental movements, rural livelihood supports, family and community orientation projects, and voluntary civic education. Although rural communities have encountered serious challenges since Japan entered industrial development, villagers continue to maintain the common forest with some modifications. Villagers demonstrate the resilience of common forest management by taking an inclusive approach that includes migrants in the board membership of common forest management and by involving themselves in broader networks of community-based natural resource movements. Community resilience is the crucial factor in common forest management in Japan.

References

Berge, Erling, and Margaret Mckean. 2015. “On the Commons of Developed Industrialized Countries.” International Journal of the Commons 9, no. 2 (September 2015): 469–85.

Effendi, Tonny Dian. 2019. “Local Wisdom-based Environmental Education through Kikigaki Method: Japan Experience and Lesson for Indonesia.” IOP Conference Series: Earth and Environmental Science 239: 012038. https://doi.org/10.1088/1755-1315/239/1/012038.

Goto, Kokki. 2007. “‘Iriai Forests Have Sustained the Livelihood and Autonomy of Villagers’: Experience of Commons in Ishimushiro Hamlet in Northeastern Japan.” Working Paper Series No. 30. Afrasian Centre for Peace and Development Studies, Ryukoku University.

Inoue, Makoto, and Ganesha P. Shivakoti. 2015. Multi-level Forest Governance in Asia: Concepts, Challenges and the Way Forward. India: Sage Publication.

Kanamori, Shigenari. 1999. “German Influences on Japanese Pre-War Constitution and Civil Code.” European Journal of Law and Economics 7, no. 93–95. https://doi.org/10.1023/A:1008688209052.

Mitsumata, Gaku, and Takeshi Murata. 2007. “Overview and Current Status of the Iriai (Commons) System in the Three Regions of Japan: From the Edo Era through the Beginning of the 21st Century.” Discussion Paper No. 07-04. Kyoto: Multilevel Environmental Governance for Sustainable Development Project.

Miyanaga, Kentaro, and Daisaku Shimada. 2018. “‘The Tragedy of the Commons’ by Underuse: Toward a Conceptual Framework Based on Ecosystem Services and Satoyama Perspective.” International Journal of the Commons 12, no. 1: 332–51.

Saito, Haruo, and Gaku Mitsumata. 2008. “Bidding Customs and Habitat Improvement for Matsutake (Tricholoma matsutake) in Japan.” Economic Botany 62, no. 3: 257–68.

Satsuka, Shiho. 2014. “The Satoyama Movement: Envisioning Multispecies Commons in Postindustrial Japan.” In Asian Environments: Connections across Borders, Landscapes, and Times, RCC Perspectives, no. 3: 87–94.

Shimagami, Motoko. 2009. “An Iriai Interchange Linking Japan and Indonesia: An Experiment in Interactive Learning and Action Leading toward Community-Based Forest Management.” Working Paper Series No. 46. Afrasian Centre for Peace and Development Studies, Ryukoku University.

Suzuki, Tatsuya. 2013 “The Custom and Legal Theory of Iriai in Japan: A History of the Discourse on the Position of the Rights of Common in the Modern Legal System.” In Local Commons and Democratic Environmental Governance, edited by Takeshi Murota and Ken Takeshita. Tokyo-New York-Paris: United Nations University Press.

Takahashi, Takuya, and Koji Matsushita. 2015. “How Did Policy Intervention Work Out for Commons Forests in Japan? An Analysis of Time-Series Prefectural Data.” Paper in the IASC Conference 2015 Edmonton W23 (2015-5-27).

Takamura, Gakuto. 2019. “The Bundle of Rights Model to Explain the Underuse of Japanese Common Forest from History.” Presentation in Asian Law and Society Association (ALSA) Conference, Osaka Univesity, December 12–15, 2019.

Tsing, Anna L. 2015. The Mushroom at the End of the World: On the Possibility of Life in Capitalist Ruin. Princeton: Princeton University Press.

Yamamoto, Shinji. 2003. “Forest Volunteer Activity in Japan.” In Local Commons and Democratic Environmental Governance, edited by Takeshi Murota and Ken Takeshita. Tokyo–New York–Paris: United Nations University Press. 287–302.

[1] I would like to express my gratitude to Professor Sozaburo Mitamayama (Osaka University of Tourism) for his hospitality and assistance during my research visit in Japan. I am also thankful for a series of insightful discussions that I have had with Motoko Shimagami (Ehime University), Gaku Mitsumata (Hyogo University), Gakuto Takamura (Ritsumeikan University), and Mamoru Kanzaki and Daisuke Naito (Kyoto University), and for the fruitful comments by Hoko Horri (Leiden University) for this article.

[2] In this article, the terms “common forest” and “iriai forest” are used interchangeably.

[3] See also Kentaro Miyanaga and Daisaku Shimada (2018), who identify three main driving factors that lead to the underuse of common forests in Japan: demographic drivers, socioeconomic drivers, and institutional drivers.

[4] See. https://ecovillage.org/projects/what-is-an-ecovillage/

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投稿者 : ld-sylff

Sylff to Offer Fellows COVID-19 Emergency Support, Seeks Donations

June 10, 2020

The Sylff Association secretariat will provide emergency financial support to all fellows whose efforts to earn a degree have been impacted by the COVID-19 pandemic. We are also asking members of the Sylff community for donations to help finance this initiative.

The COVID-19 outbreak has affected universities around the world. Some fellows have told us that financial and other difficulties have forced them to interrupt their studies and research. This is a serious concern, since earning a degree is the first step in building a career. The aim of this emergency support program is to help defray fellows’ living expenses and encourage them to continue their studies and research at their home Sylff institutions.

We are currently identifying eligible fellows* in collaboration with Sylff steering committees at all 69 Sylff institutions. We have received information from many institutions, as of June 10, 2020, and would appreciate the remaining institutions to respond promptly so that support can reach those who need it.**

Transfer procedures and other details will be communicated to Sylff institutions when the process of identifying eligible fellows is completed by mid-June. A report will also be made on this website for the Sylff community.

At the same time, we will later announce on the website how members of the Sylff community may offer donations to help finance the program. The secretariat would be grateful for any support you can give to ensure that fellows can continue their studies in spite of the COVID-19 pandemic.

*Fellows eligible for emergency support are those who are currently enrolled in a master's or doctoral program at their home Sylff institutions and who will still be enrolled in the degree program at the same institution in September 2020.

**The following Sylff institutions have provided information requested by the secretariat (as of June 10, 2020). in alphabetical order

The American University in Cairo
Ankara University
Ateneo de Manila University
University of Belgrade
Ben-Gurion University of the Negev
University of California San Diego
Charles University
Chiang Mai University
University of Chile
University of Coimbra
Columbia University
Comenius University in Bratislava
Conservatoire national superieur de musique et de danse de Paris
University of Deusto
El Colegio de Mexico
Fudan University
Gadja Mada University
Graduate Institute of International and Development Studies
University of Helsinki
Howard University
Hungarian Academy of Sciences, Corvinus University of Budapest, Debrecen University, Eötvös Loránd University, University of Pécs, and University of Szeged
Inner Mongolia University
Institute of Political Education “Pedro Arrupe”
Jadavpur University
Jagellonian University
Jawaharlal Nehru University
Jilin University
University of Jordan
The Juilliard School
Keio University
Lanzhou University
University of Latvia
University of Leipzig
University of Malaya
Massey University, Auckland University of Technology, Lincoln University, University of Auckland, University of Canterbury, University of Otago, University of Waikato, and Victoria University of Wellington
University of Michigan
University of Music and Performing Arts Vienna
University of Nairobi
National Academy of Governance
National and Kapodistrian University of Athens
University of New South Wales Business School
University of Oregon, Oregon State University, and Portland State University
Peking University
Ritsumeikan Asia Pacific University
Ruhr University Bochum
University of Sao Paolo
Sofia University “St Kliment Ohridski”
University of the South Pacific
University of Texas Austin
Uppsala University
Utrecht University
Vietnam National University, Hanoi, and Vietnam National University, Ho Chi Minh City
Waseda University
University of the Western Cape
Xinjiang University
York University
Yunnan University

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投稿者 : ld-sylff

Strengthening Journalists’ Election Reporting Skills as Ethiopia Transitions to a Democracy

May 18, 2020
By 24666

In November and December 2019, Mulatu Alemayehu Moges, PhD, now an assistant professor of journalism and communication at Addis Ababa University, organized a training workshop for Ethiopian journalists ahead of the country’s first general election under Prime Minister Abiy Ahmed, originally scheduled for May 2020. Moges sees the political transition to a democracy under the new prime minister as an opportunity for better-trained journalists to make a significant contribution to free and fair elections.

* * *

I was interested in training and capacitating Ethiopian journalists on various themes. While I was working as a journalist in the local media, it was very clear that the Ethiopian media faced many problems. For instance, while most journalists had attended formal journalism school, they were not ready to apply the principles they learned in practice. Most were also not able to make full use of the technological advances being made in journalism, and there was a need to make reporting more professional.

The author facilitates the training.

In 2018, I served as a resource person for the National Electoral Board of Ethiopia and facilitated two training programs for journalists and communication officers on the election, media, and democracy. Through this experience, I realized that journalists and communication officers lacked a thorough understanding of the election process, particularly, the ethical principles, legal issues, and other technicalities that were very important in election reporting.

From my discussions with experts on the electoral board, I also realized that one of the reasons for the low turnout and the disqualifying of some votes was a lack of clear understanding about the election process and voter engagement.

Last year, I was invited to train journalists and communication experts on the media, democracy, and elections, giving me an opportunity to observe the skills and knowledge of the trainees, particularly on election reporting. The experience prompted me to write a proposal to the Sylff Association.

For Free and Fair Elections in Ethiopia

Training on election reporting is important for several reasons. First, Ethiopia has been undergoing a political transition since Abiy Ahmed became prime minister. This transition has opened new opportunities for Ethiopian politics, making the upcoming general election highly anticipated and very competitive. Most opposition parties have been allowed to return to the country, and they are now freely restructuring and reorganizing themselves for the election. The government has opened up the political discourse, giving not only political groups but also individuals a chance to express their ideas freely through the media and other outlets.

The current government of Ethiopia has promised to end the kind of malpractices seen during earlier elections and to have a free and fair election. This makes it all the more important for the media to make a positive contribution to the election process, since freedom of expression and a free media are imperatives for a free and fair election. Media pluralism and the professionalization of journalists are crucial, and they should be addressed before the election campaign begins.

Among the key questions to be considered are how citizens are accessing neutral information about competing candidates, their political parties and policies, the election process, and voting guidelines; whether the political parties are freely carrying out political debates on the public media; whether the media is serving as a platform for such communication during the election period; and how well the journalists are trained in providing information about election processes to the general public in a timely and unrestricted manner. Accurately reporting on the political campaign and providing voters civic education are determining factors for ensuring both a fair election and high turnout. It is up to the media to connect the electoral commission and the candidates with the voters. This shows how the media can play an indispensable role in the election.

Training Ethiopian Journalists

All the above-mentioned points motivated me to apply for a Sylff Leadership Initiatives grant to facilitate training workshops for Ethiopian journalists who are expected to report on the upcoming election. The training program aimed to have an impact on 100 journalists on election reporting and on educating the public. In the workshops, experts were invited to make presentations on issues related to election reporting, the media, democracy, ethics of election reporting, election and media laws, access to information, and the right to information during the election. Participants were also encouraged to engage in group discussions.

Participating journalists engage in a group discussion.

The main objective of the workshops was not to train all Ethiopian journalists but, considering the budget and time, to approach editors and senior journalists in influential positions in their media organizations. Reaching out to these editors could be expected to have a trickle-down effect on junior journalists in two ways.

The first is that participating journalists may be able to arrange and facilitate similar workshops in their respective outlets. With this expectation, the organizers shared all the training materials with the participants, and some have already conveyed their insights to their colleagues. Two participants from the Amhara media agency, for example, have organized a training program at their organization.

The second is that since they are in senior positions in their media organizations, these participants will have many opportunities to mentor and coach journalists who are working under them. From my own practical experience in the Ethiopian media, journalists learn a lot from their seniors. This is another way that the workshop can have an impact on even those journalists who did not attend the training.

Such mutual teaching and learning were also observed during the training sessions. Some of the participants were very experienced, having worked in journalism for two decades and covered the last three general elections. There were senior editors and program producers who shared their practical experience in the Ethiopian media with other participants. In addition, having diverse training participants from community radio stations and both the public and private media across the country made the discussions lively and interactive. In some cases, journalists drew from their practical experience to substantiate the points they were making on the subject matter being discussed.

Sharing past coverage experience during a group discussion.

When the project was being designed, I expected at least 40% of the participants to be women. For unforeseen reasons, though, the number of female journalists enrolling, particularly in the first round, was very small. They were nevertheless very active during the training sessions, engaged in raising issues and questions and providing answers. They were also active in presenting ideas during the group discussion.

A presentation by a female participant.

Expected Outcomes

The media, especially the mainstream media, plays a major role in raising awareness among the voting public. Radio, for example, still claims large audiences in Ethiopia, and a substantial share of people access information from radio programs. Some of the participating journalists worked at radio stations at the national, regional, and community levels, and they learned important lessons in educating voters and the public.

From this fact, the project can be said to have played a role in potentially increasing voter turnout around the country, and particularly the rural areas where people tend to be less educated. This can also lead to greater participation of youths and youth groups as journalists cover issues related to the electoral process, election guidelines, and ethical practices.

In the civic education section of the training, issues related to values, attitudes, and behaviors of electorates and candidates were thoroughly discussed, so these trained journalists will know how to behave during an election. Usually, youths are the ones who will take to the streets to demonstrate if they feel that an election was rigged or perceive irregularities in the electoral processes. By applying what they have learned in the workshop, journalists may be able to minimize the risks of electoral fraud and its consequence.

Last but not least, the project will play a direct role in the democratization process of the country. Free and fair elections are the foundations of a democratic system, so this project will have a multifaceted significance.

Organizing the training workshop was not an easy task, and it was not without its challenges. But we were able to hold it in a timely manner thanks to the cooperation of many parties. I would like to particularly thank the Sylff Association, UNESCO, and the Ethiopian Broadcast Authority for making my dream come true. The workshop would not have been successful without their support, encouragement, and follow-up.

Related article on the Ethiopian Press Agency website:
https://www.press.et/english/?p=15482#

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投稿者 : ld-sylff

On Principles in Japanese Law

May 12, 2020
By 24601

Using an SRA award, Miloš Marković, a 2017 Sylff fellow from the University of Belgrade, visited Japan between November 2019 and January 2020. His main goal was to explore and assess the application of legal principles in the modern sense as constitutional rights in Japan by interviewing legal scholars as well as lawyers and judges there.

* * *

Historical and Motivational Background

The distinction between legal rules and legal principles has been in the center of much theoretical thought in the past few decades. The beginning of a broad discussion was marked by Dworkin’s major challenge of legal positivism.[1] Eight years later, Alexy brought the topic to a whole new level by developing a theory of constitutional rights as principles.[2] The principles theory even evolved into a full-fledged theory of law.

The main difference between these rules and principles is how to resolve their conflict. When two legal rules come into conflict, one of them is abolished or excepted. Only one of two norms prescribing different deadlines for the same complaint may be valid, not both. When two legal principles come into conflict, both remain valid and neither is declared an exception, yet one overweighs the other under the specific circumstances of the case. Freedom of trade and the protection of customers may intersect and conflict and determine the outcome of the case, yet neither has absolute priority in application over the other.

The author, left, with one of the interviewees at a law firm in Tokyo.

When I first approached the topic of legal principles in the course of doctoral studies, it was clear from the start that the comparative dimension would play a major role in the research. Legal systems to be taken into consideration were as usual French, Austrian, German, and American. However, the major legal systems in the Far East has always inspired curiosity among European lawyers. Unfamiliar customs, different religions, exotic dishes, and undecipherable scripts keep China, Japan, and Korea mostly under a veil of unknown for people in Serbia and other European countries. Legal transplants from the West in the cultural environment of East Asia seemed to drift farther away from their original meaning than elsewhere. After completing two research stays in Austria and Germany, the main reason for my choice of Japan as a host country to investigate legal principles in a comparative perspective was the historical influence of German law.

The modernization process in Japan began in 1868 with the fall of the Tokugawa Shogunate, which had ruled the country for two and a half centuries.[3] Faced with the threat of being colonized by Western countries, the Meiji government set out to establish a modern legal system in conformity with European tradition and renegotiate unfair commerce treaties.[4] France was believed a leading European country with comprehensive legal codes, and French scholars were invited to draft codes for Japan. For the first time, Japanese words had to be invented for the concepts of right, freedom, and liberty, as well as property over land. However, the French drafts triggered strong criticism for violating the traditions of Japan, so the government decided to rely more on German scholars. Ultimately, the whole legal system was modeled on German law. The first Constitution of Japan was enacted in 1889, and the first Civil Code in 1898. Japan thus became a civil law country.

Having in mind that German law exercised influence in Japan in ages past, I reckoned that the modern principles theory as developed by the German Federal Constitutional Court might have already been accepted independently by the courts in Japan due to the shared legal tradition. A comparison of statutory norms and judicial decisions should point out differences and similarities between major legal systems and thus prove the universality of the principles theory. That hypothesis motivated me to set sail for the land of the rising sun.

Original copy of the Constitution of Japan enacted on May 3, 1947, as the new constitution for a post–World War II Japan.

Choice of Methodology

My primary method consisted of interviews with Japanese scholars and judges to learn what they know and what importance they assign to the principles theory. However, things did not go completely as planned for two reasons. First, the language barrier made online communication with both courts and faculties practically impossible. Since contact e-mails turned out to be unavailable on official websites and some letters remained unanswered, plans to arrange a meeting on my own were thwarted. Second, the physical barriers at the entrances of law faculties prevented access without invitation and thus hindered me from seeking assistance independently.

Consequently, meetings were exclusively arranged on the recommendation of an acquaintance or the supervisor himself.[5] Such recommendations prompted better preparation and substantial interest on the part of the interviewees. Everyone put much effort into disentangling complex questions and discussing them on a practical level. All in all, I had fewer yet longer, better, and more insightful discussions with lawyers in Japan than originally envisioned.

My secondary method was supposed to be to gather data via computer analysis of judgments based on the word “principle.” However, it turned out that decisions of Japanese courts are rarely translated into English. In addition, fieldwork showed that a reliable translation of a judicial decision requires long work, rich legal knowledge, and mastery of both languages, and thus much money. As a result, the original proposal ran ashore. To overcome the obstacle, I turned to books on Japanese case law and searched myself for principles hidden within the reasons adduced.

Research Findings

My research in Japan confirmed the hypothesis that every legal system necessarily includes principles besides rules. At the outset of each interview, Japanese judges tended to understand principles as unwritten legal norms and were majorly averse to the idea that they play a role in the decision-making process. The only reasons for a judgment should be rules as prescriptions. However, when confronted with hard cases, judges usually admitted that rules are insufficient to justify a decision. They must then reach out for more general rules or the purpose of a rule. When asked to solve a conflict between such abstract norms, judges agreed that such conflicts cannot be solved by abolishing one of them or declaring one an exception.

Interviewed judges keenly defended the position that a solution to each case can be found in rules by means of an adequate interpretation. The meaning of each norm can be narrowed or broadened in order to exclude or include different cases and provide a solution. An interesting detail from the conducted interviews was the opinion that the first and foremost norm in the Japanese Civil Code, “good faith,” represents a rule. Such reasoning shows that judges tend to regard every case from the standpoint of only one norm. However, it is inevitable that norms sometimes overlap or intersect, in which case only a cluster of norms may provide a basis for decision. Principles come into play when such a conflict is irresolvable by means of abolition and exception.

An illustrative example is the “After the Banquet case,” in which the Tokyo District Court had to decide about an alleged violation of privacy.[6] A novel was published by the famous Japanese author Yukio Mishima. Although the names were altered, practically everyone could recognize that the model in the book was Foreign Minister Hachiro Arita. The court obviously had to balance between right to privacy and freedom of speech, or freedom of artistic expression, as Japanese lawyers like to put it. In 1964 Japan obtained its first judicial recognition of the right to privacy. Mishima lost the case and tried to bring the case to a higher court, but the foreign minister died, and a settlement was reached between the two sides. From the standpoint of principles theory, it is important that no right was abolished or declared an exception. The discussed judgment is clear evidence that in Japanese law some norms function as principles, and those are primarily constitutional norms awarding rights.

The author in front of the Akamon gate built during the Tokugawa Shogunate. The gate is located at one of the entrances of the University of Tokyo’s Hongo campus, where he was based during his research in Japan.

It was remarkable to find an analogous case in Europe. Photographs of Princess Caroline of Monaco were published in several magazines. The case was brought before the German Federal Constitutional Court. In order to reach a decision, the court had to balance two constitutional rights: freedom of speech and right to privacy.[7] For the majority of photos the freedom of speech was given priority due to the status of the complainant as a public personality. However, three photos where the complainant was with her children were deemed to infringe disproportionally on their privacy, which is why priority switched to the right of privacy. The main point is that the first principle overweighed the second and vice versa under respective specific circumstances, yet both principles remained valid and no absolute hierarchy was introduced. Had the court abolished one of the conflicting norms or declared one to be an exception of the other, those norms would have been treated as rules.

Related news on the Sylff website:
https://www.sylff.org/news_voices/27360/

[1] Ronald Dworkin, “A model of Rules I,” Taking Rights Seriously (Cambridge: Harvard University Press, 1978), 14–45.

[2] Robert Alexy, Theorie der Grundrechte (Berlin: Suhrkamp, 1986), 71–154.

[3] James L. McClain, Japan: A Modern History (New York: W.W. Norton & Company, 2002), 119–207.

[4] Shigenori Matsui, The Constitution of Japan: A Contextual Analysis (Portland, OR: Hart Publishing, 2011), 7–13.

[5] In that regard, I am much indebted to Professor Yasunori Kasai and Professor Masayuki Tamaruya, as well as the Sylff Association.

[6] Judgment of Tokyo District Court, 1964, Kaminshu 15-9-2317. There is no translation of the sentence available online. I am much obliged to Professor Hitoshi Nishitani for the particulars of the case.

[7] https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/1999/12/rs19991215_1bvr065396en.html