Community and the Law
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Community and the Law

A Critical Reassessment of American Liberalism and Japanese Modernity

Takao Tanase

Edited by Luke Nottage and Leon Wolff

This important book translates seven landmark essays by one of Japan’s most respected and influential legal thinkers. While Takao Tanase concedes that law might not matter as much in Japan as it does in the United States, in a provocative challenge to socio-legal researchers and comparative lawyers, he asks: why should it? The issue, he contends, is not whether law matters to society; it is how society matters to law.
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Chapter 3: The Moral Foundations of Tort Liability

Takao Tanase


1. THE TORT LAW CRISIS Tort law is said today to be in crisis. A dramatic expansion in the category of legal issues disposed of as torts has precipitated this crisis, causing confusion and tension in the established legal and social orders (O’Connell, 1971). The advent of no-fault insurance (promising prompt and calculable provision of compensation to traffic accident victims: Tanase, 1990c) and acclaim for New Zealand’s comprehensive compensation scheme (Kato, 1989) have fuelled concerns that the expansion of tort litigation is inefficient. Some writers, such as Sugarman (1985), have gone so far as to propose doing away with tort law altogether. The costs of tort-based recovery far outweigh the benefits, critics argue, and tort law is failing in its purported objectives: deterrence of unlawful behaviour, compensation for harm and securing justice between the parties. Japan’s system of administratively managed justice – where the state standardises liability and fixes allowable damages awards – is pitched as an alternative to litigated individual justice. The system promises ‘quick and certain relief for victims’ by bypassing costly and time-consuming trials and embracing centrally administered systems of relief (Sato, 1979, fn. 10). Yet Japanese courts are now clogged with tort suits. Since the late 1960s, Japan has witnessed a surge in mass torts (such as in traffic accidents, medical negligence and product liability cases), the recognition of new causal relationships and increased demands for relief. This highlights the inefficiencies of the traditional court-centred system of compensation. There are now calls to ‘detortify’ the law – to establish...

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