America kara mita Nihonho (An American Perspective on Japanese Law)

This Japanese book presents comments on 24 prominent decisions taken in the fields of constitutional law. The fields include administrative law, tax law, criminal law, civil law, corporate law, labor law, and economic law. These have been selected by expert Japanese researchers in each field, from the perspective of Japanese law, together with summaries and analyses of the decisions in English authored by Professor J. Mark Ramseyer, an American Professor of Japanese Legal Studies at Harvard Law School. No meetings were held with the Japanese researchers regarding the commentary by Professor Ramseyer, so this information presents solely his personal opinions. The multifaceted views on the same decisions will surprise the reader and should heighten awareness of the importance of integrative thinking.
 
A specific example may refer to people who developed severe adverse reactions, as a result of compulsory or recommended vaccination. In reality, the vaccinations were recognized to be compulsory under normal social conventions, and were collectively implemented based on the premise of social defense to achieve herd immunity. In the proceedings where bereaved families launched against mass vaccination accidents, the Tokyo High Court decision of 15 December 1992 (Hanrei Jiho No.1445, Page 3) denied relief based on the principle of compensation for loss. This denial was based on the fact that expropriation of life and health is not recognized under the Japanese constitution. Despite this decision, the court acknowledged organizational negligence in the national vaccination administration, and approved the claim for government compensation. This decision was generally viewed positively by Japanese academia, because at the time that the plaintiffs were vaccinated, the government was aware of serious adverse reactions caused by the vaccination. However, they prioritized increasing of the vaccination rate without disclosing the information on adverse reactions. No precautions were undertaken under the faulty preliminary examination system to avoid vaccinating people with contraindications. Consequently, the outcomes should be recognized as systemic neglect by the Ministry of Health and Welfare.
 
In contrast, Professor Ramseyer points out that, in 1992 at the time of the decision, the infection rates were low and the need for vaccination was also reduced. Nonetheless, at the time that the plaintiffs were vaccinated, the risk of infection was not low. Also, given the external economies brought about by vaccination, it is questionable that there was negligence at the time the plaintiffs were vaccinated. The American Federal Tort Claims Act allows for discretionary immunity of the government’s liability for damages. Therefore, even with federal government-led mandatory vaccination, in principle, the federal government is not liable for damages. Instead, sufferers of adverse reactions generally pursue vaccine product liability, and file claims for damages against pharmaceutical companies. The major differences between the United States and Japan regarding how claims are filed for government compensation may be veiled behind the comments made by Professor Ramseyer.
 

(Written by UGA Katsuya, Professor Emeritus, Graduate Schools for Law and Politics / 2021)