Protecting the Weak

Moritz Bälz & Iwo Amelung

Where weak groups or interests benefit from special protection, whoever grants such protection (the state, an employer, the owner of an architectural landmark etc.) may act purely voluntarily, may respond to a moral duty, or fulfil a legal obligation. A particular “hard” form of institutionalizing protection is granting individual rights and making them enforceable in public courts. The recognition and stipulation of individual entitlements as well as the establishment of formal procedures for their assertion, in any jurisdiction, is subject to permanent contestation. How legal rights “on the books” are enforced in real life is a key element of a society’s legal culture. A clear picture of these “rights discourses” in Japan and China is therefore essential to capture the framing, mobilization and institutionalization of protecting the weak in East Asia.

Interestingly, when Japanese modernizers visited Europe in the late nineteenth century, they were not only impressed by the extensive charitable institutions (Watanabe 2012), but also seem to have been surprised by the idea of relief regulations based upon the principle of legal obligations (Garon 1997). The fact that assistance for the needy was - at least predominantly - long conceived as an act of benevolence of the protector, not a matter of legal entitlements of those in need, parallels the emphasis on administrative and penal rules (ritsuryô) in East Asian legal traditions, as opposed to the prominence of private law in the Roman-inspired western legal systems (Glenn 2010). While the claim that subjective rights and their adversarial assertion were alien to East Asian legal traditions prior to Western influences in the late nineteenth century can no longer be upheld (Feldman 2000), it is still telling that even terms such as kenri/quanli or jinken/renquan needed first to be invented when the concepts of individual rights and human rights gained importance in Japan in the 1860s and shortly thereafter in China (Svarverud 2000).

In Japan, notwithstanding a US-inspired constitution guaranteeing the autonomy and dignity of the individual in the name of basic human rights and, since the turn of the century, comprehensive justice reform aimed at facilitating the assertion of individual rights through the courts (Scheiber and Mayali 2007; Baum and Bälz 2011), Japanese legal culture in general, and the articulation, formalization and
re-conceptualization of rights to protection in particular, preserve distinct features. This is equally true for China, where, however, tradition has often been juxtaposed with autocratic/totalitarian government practices, when dealing with questions of enforceable rights. Only last November a prominent group of 72 intellectuals, encouraged by General Secretary Xi Jinping’s speech on the thirtieth anniversary of the constitution, signed a petition urging the Party to enforce the constitution and to turn it into a legal weapon for the people to defend their own rights.

A key question of the background study is how the discourse relating protection and welfare to rights was transmitted to, and appropriated in, Japan and China. It will thus go beyond the mere question of the incorporation of international conventions into national law, and will also look into the question of to what extent the concept of rights has shaped East-Asian discourses on protecting the weak.