Altes Europa – neues Amerika? Die Entwicklung des japanischen Arbeitsrechts und der Einfluss des deutschen und des amerikanischen Rechts
Abstract
This is a slightly revised manuscript of a lecture the author gave in Freiburg, Germany, on the occasion of receiving an honorary doctoral degree in law from the Faculty of Law of Freiburg University on June 30, 2004.
For almost a century now, Japanese law in general and labor law in particular have been continuously influenced by foreign law. At the end of the 19th and the beginning of the 20th century, it was mainly the reception of German law that provided the basis for the development of a modern legal system in Japan. This influence was particularly strong in the field of labor law, and this is probably one major reason for the fact that, despite all the law reforms in the early years of the postwar period which were mainly initiated by the U.S. Occupation Authorities, and despite constant influence by American law during the following decades, the German influence still persists. For instance, German law is at the basis of basic workers’ and social rights guaranteed in Artt. 25, 27, and 28 of the Japanese Constitution, and also some fundamental rights and notions laid down in the Trade Union Law and the Labor Standards Law.
From the 1960s through the 1980s, no grand changes came about in the field of labor law in Japan. Japanese legislators saw no particular need to enact new laws or add major amendments to already existing laws, though some changes were brought about by developments in case law and legal theory. During that period of time, however, one very important change relating to the attitude of Japanese researchers took place. This would determine the direction of the development of Japanese labor law in the years to come. Whereas formerly – i.e., in the pre-war and early postwar period – a majority of scholars in the early stages of their careers went to Germany to study labor law, from this point on they started to visit many other countries as well. The U.S. in particular became a popular place for undertaking studies abroad. This is generally considered to be one of the main reasons why the influence of American labor law on Japanese labor law began increasing during the 1980s. Another reason is that the U.S. had meanwhile captured a general global predominance.
The conventional concept of labor law in the U.S. has two specific features that have especially affected the development of Japanese labor law since the 1990s. First, “collective bargaining” plays an essential role in American labor law. Second, the perception of equal bargaining power between employers and employees is still a very significant feature, giving rise to a comparatively weak legal standing of employees (“employment at will”) in the U.S. The latter in particular has begun to dominate recent reform debates in the field of labor law in Japan, with enterprises and employers’ associations calling for more deregulation and more flexible employment opportunities.
The author raises doubts as to whether the further Americanization of Japanese labor law is a desirable process. He argues that the legal and social framework in Japan significantly differs from that of the United States. American labor law itself has been developing under specific circumstances that share few similarities with those of other countries such as Japan. In Japan, therefore, collective bargaining between employers and trade unions (for instance) plays a different role and has different functions in comparison with the U.S. Furthermore, extreme deregulation in the field of labor law such as in the U.S. would violate workers’ rights and social standards in Japan that are guaranteed by the Constitution. In addition, the current standard of legal protection of individual employees under Japanese law is already quite low. A further Americanization and weakening of employees’ rights in Japan would axe more than a century of achievements by the Japanese labor movement.
Although a continued deregulation triggered by globalization, especially in the field of labor law, is a common trend in many developed countries, care should be taken to avoid getting trapped in a continuous race to the bottom with regard to social standards. In global competition with less developed countries and countries in economic transition, even the U.S. would reach its limits if it aimed to increase economic efficiency primarily by lowering social and labor standards. Instead of engaging in such a misperceived form of globalization, Japan should contribute by setting up reasonable standards of social and workers’ rights in developed countries. As a model for setting up such standards, continued tracking of European standards is advisable.
Without any doubt, Japan will continue to import foreign law as it has done in the past, and this process can be of great value for any further legal development inside Japan. However, the best product for such an import should be carefully scrutinized and selected.
(The Editors)
