Japan Times Zeit Gist followup on Dec’s Otaru Onsen lawsuit analysis

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japan
Hi Blog.  Last month the Japan Times put a cat amongst the pigeons last December with a Zeit Gist column about the Otaru Onsens Case, decrying the court ruling against racial discrimination as something undermining Japanese society.

It caused quite a stir, according to my editor, with most of the comments coming in critical of the thesis.  Some of the responses were worth a reprint as a follow-up column, and that came out last Tuesday.  Have a read.  And yes, I briefly responded too (although only on this site as a comment), which I paste at the very bottom below.  Love the illustration, as always.  Arudou Debito

News photo

Otaru ruling beats ‘mob rule’
The Japan Times: Tuesday, Jan. 6, 2009
Dan O’Keeffe defends court’s 2002 decision in ‘onsen’ case

Paul de Vries’ treatise on group accountability in Japanese society (“Back to the baths: Otaru revisited,” Zeit Gist, Dec. 2) offered a new take on the now familiar story of the court case between Japan’s naturalized enfant terrible, Debito Arudou, and the managers of the Yunohana public bath in Otaru, Hokkaido. De Vries presented a “thin edge of the wedge” argument for the ultimate unraveling of Japanese society if certain groups are no longer allowed to practice overt discrimination in the name of making Japan “cohesive and safe.”

However, by using the crutch of group discrimination to prop up the old utilitarian bulwark that the needs of the many outweigh the needs of the few, De Vries simply makes the case that the prejudices of the majority outweigh the rights of the minority. Call it “group accountability,” call it “might means right,” call it “mob rule” — whichever way you spin it, it is simply a form of institutionalized bullying that limits Japan’s ability to create a dynamic, enlightened society for the 21st century.

De Vries’ primary objection to the Arudou judgment is that “the case was fought and won on the issue of racial discrimination when the policy being employed by the Yunohana onsen could more accurately be described as the racial application of ‘group accountability.’ “

“Racial application of group accountability” sounds so much nicer than boring old “racial discrimination,” doesn’t it? The question is whether there really is any difference between the two. Sadly, De Vries offers no logical reasons why we should see his preferred version of these two (identical) concepts as being anything other than a new name for the same old discredited idea. To deny access to public facilities to an innocent individual because of the color of their skin is simply wrong, regardless of who is doing it or what their motives are.

The judge in the Arudou case rightly recognized that the managers of the bath were using race as their sole means of determining who would be able to access their facility. That Arudou, a Japanese citizen, was denied entry shows that the management of the facility was not interested in denying entry to non-Japanese per se, they were in fact trying to exclude people on the basis of how they look. To find for the defendant, the judge in this case would have had to be convinced that it is acceptable to deny access to a public facility to an individual not based on the way he or she behaves, their capacity to pay, or even their nationality, but solely on the way they look.

Leaving aside the morally reprehensible aspects of this idea, there is also the farcical notion of who gets to decide just what constitutes “Japanese-looking.” Black hair and brown eyes are in plentiful supply in many parts of the world, as are epicanthic folds (where a fold of the upper eyelid covers the inner corner of the eye). In the popular mind, Chinese actress Zhang Ziyi looked “Japanese enough” to play Sayuri in the movie “Memoirs of a Geisha,” but would she be Japanese enough to make it past the sentries at Yunohana onsen? How about Malaysian actress Michelle Yeoh? How about Mickey Rooney dressed as Mr. Yunioshi from “Breakfast at Tiffany’s”?

Clearly, there is no objective basis for deciding who looks Japanese, just as there is no basis for using racial features as a pretext for a denial of rights. How one looks doesn’t determine how one will behave. The management at Yunohana onsen was using a ridiculous standard to tackle their problem and the judgment against them reflected that.

De Vries tells us that individuals should be prepared to sacrifice certain freedoms in the name of social cohesion. It all sounds very nice and honorable and somewhat in the vein of great social thinkers such as John Locke and Jean-Jacques Rousseau, but only superficially. Where Rousseau saw individual submission to a “general will” as an essential part of the social contract in a civil society, he also saw the need for individual liberty to be enshrined in the fabric of a community. In his 1762 “Of The Social Contract,” Rousseau wrote that the group must “receive each individual as an indivisible part of the whole.”

Under De Vries’ model, individuals are forced to offer the same submission to the will of the dominant, but they must do so without the protections and privileges of individual rights and freedoms. Irrespective of cultural differences, group accountability has largely been rejected in the West because it is intellectually lazy and it doesn’t work. Just because it’s common here doesn’t make it right.

De Vries tells us that we needn’t worry when Japanese apply such group accountability, even on a blatantly racial basis, because they do so with a benevolently “even hand.” Despite the scant comfort this brings to those on the receiving end, even this turns out to be little more than wishful thinking.

De Vries wonders at the lack of comment from the foreign community regarding the introduction of women-only carriages on commuter trains since 2002. He cites a lack of outcry as evidence that men understand that such a case of group accountability is reasonable. What De Vries has failed to take into account is that women-only carriages do not prevent anyone from accessing a public utility: Men simply redistribute themselves among the remaining carriages, an act which would not be considered a sanction or punishment by any reasonable person. De Vries draws a long bow in arguing that this is an example of group accountability when no one is punished. Presumably one could use the same confused logic to rail against women’s toilets, single-sex schools and the WNBA. Moreover, moving the potential victims rather than actually tackling the problem of molestation hardly holds anyone to account, group or otherwise.

Tellingly, De Vries was silent on the matter of how it came to be that there are so many “chikan” (gropers) on Japanese trains, especially since he goes to great lengths to tell us that “the fear of random violence is relatively low” in Japan.

De Vries again fires wide of the mark with his reference to the mandatory fingerprinting and photographing of foreign nationals upon entry to Japan. Given that the actions of Aum Shinrikyo, the Japanese Red Army and various politically motivated assassins have shown that any terrorist threat against Japan is far more likely to be a homegrown one, can the targeting of foreign nationals for fingerprinting really be legitimized by the concept of group accountability? Further, where is the group accountability of Japanese themselves in these cases?

It is clear that De Vries thinks it perfectly rational for Japanese authorities to lump all non-Japanese, be they Chinese or Chilean, American or Armenian, Irish or Amish, into one enormous clade and treat them as equally prone to criminality and violence, as opposed to peaceful, law-abiding Japanese. This is patently absurd, as if all Japan’s troublemakers come from elsewhere.

As with the Yunohana onsen case, simply banning or punishing a whole group of people on racial grounds fails to target only those who break the rules (drunken bathers, terrorists) but succeeds in impinging on the rights of a large number of innocent people. If you want to prevent drunken people from ruining your onsen, then deny entry to people who are intoxicated — a simple breathalyzer test will suffice. Similarly, if you want to catch criminals entering the country via an airport, fingerprint everyone arriving: You’ll catch a lot more criminals that way and no one will be discriminated against.

The reality is, however, that the Japanese government would not insist on fingerprinting all arriving passengers regardless of nationality because of the uproar it would cause among Japanese people — Japanese people who can vote. This is the crux of the argument against group accountability: It allows the powerful to dictate to the weak. By singling out foreigners for fingerprinting, the authorities were imposing a regulation on a section of the community that had no means of voicing its displeasure other than the various petitions and forums that De Vries found so “unbelievable.”

As De Vries also points out, group accountability circumvents the rule of law. This encourages mob rule and bullying. In Japan, this manifests itself in ways ranging from the violent hazing of military personnel and the trauma of “park debut” for young mothers, to “karoshi” (death through overwork). Group accountability isolates, divides and discriminates. None of this helps Japan progress and develop as a cohesive society.

The history of human societies is a litany of division and stratification, be it on ethnic, caste, religious or economic lines. Time and again, the one thing that has brought about positive change and integration has been a respect for individual rights and a rejection of group accountability. It is the lesson of Gandhi, Mandela and Martin Luther King.

By protecting individual rights and demanding corresponding individual responsibilities, societies offer each and every member the chance to live their lives productively and with dignity. If De Vries’ forthcoming book discusses what Japan can teach the world, the lesson may well be how not to do it.

Dan O’Keeffe is a faculty member at Osaka Electro-Communication University. Send comments on this issue and story ideas to community@japantimes.co.jp

Back to the baths: readers responses

Following are a couple of responses to “Back to the baths: Otaru revisited” (Zeit Gist, Dec. 2).

Substitution speaks volumes

I often think it is useful to substitute alternative racial groups when someone writes something, to see whether it is a racist statement or not. Here we go for the final paragraph of Mr. De Vries’ article:

“And this brings us to the point that (Debito) Arudou ignores or simply fails to see. Group accountability is Ghettos are not employed in Japan Nazi Germany simply for the sake of pushing people around. It is They are employed for the purpose of making Japan the Fatherland cohesive and safe. It is a major reason why Japan Germany, unlike the U.S., is a nation in which the fear of random violence is relatively low. If Arudou succeeds in his quest, Japan Germany will become one more nation in which the individual is to be feared. That is an outrageously high price to pay for the occasional racial, national, generational or gender race-driven slight human-rights abuse.”

Some people may complain about my use of the example of Jews in Nazi Germany, but would the story be significantly improved if we used another group, another injustice? How about African-Americans in pre-civil rights movement America, or blacks in South Africa under apartheid, or Aborigines in Australia, or something even simpler and closer to home, like the continuing struggle for equal rights for women in almost every country in the world?

One wonders just what Mr. De Vries is afraid of from his fellow man. I am not afraid. Arudou-san is apparently not afraid. No, Mr De Vries is simply using an imaginary perceived threat to justify the subjugation of the rights of one group by another.

Not all discrimination is wrong. We all discriminate for and against people for a variety of reasons — we can’t help it; it’s built into our brains. We instinctively make patterns linking people to events, both positive and negative, even when those associations are false. However, that doesn’t make it right to allow or promote legal discrimination on the basis of something so arbitrary as race or sex. It is important to remember what laws are there for — to protect the weak from the strong, the minorities from the majorities, and even occasionally the majorities from themselves.

Louis J. Irving


Article made me rethink ideas

What a great article! I have been giving some thought to Westerners’ reaction to what I now know — thanks to you — as “group accountability.” I’ve tried to take sides — for or against the Japanese government — but I hadn’t been able to come to a clear conclusion.

Sure, the Japanese demonstrate a certain amount of xenophobia, but if I take a second to look at my nation of origin (Quebec, Canada), we are quite the same in our own way. Immigrants in Canada are supposedly widely accepted, but they’re still labeled as “immigrants” anyway, and I had to come and live here to realize that.

One perennial hot topic is Japan’s past “war efforts.” It took me six years to start reconsidering some firm opinions that I held (the horrors committed were very “Japanese”; their arrogance was unique to them; their occupation of other countries and the use of forced labor in factories and brothels are unforgivable, etc.), but then I realize that my very own country did just as bad in its own time, and so did our neighbors.

Your article clarified many things for me. I look forward to reading your book.

Pierre Nadeau 
Shimizu, Wakayama Pref.

The Japan Times: Tuesday, Jan. 6, 2009


Debito here. How I responded to the De Vries article some weeks ago:

Hi Blog. Sorry to keep you waiting. A few opinions in addition to yours (thanks to everyone for commenting on Debito.org):

I’ll start with my conclusion. Look, as Ken said above, this article is basically incoherent. We have a flawed academic theory (which somehow groups people into two rigid ideological categories — 2.5 categories if you slice this into “American standards” as well) regarding social sanction and control, and proceeds on faith that this pseudo-dichotomy actually exists. As evidence, we have citations of women-only train carriages and border fingerprinting — both fundamentally dissimilar in content, origin, and enforcement to the onsens case. And presto, the conclusion is we must maintain this dichotomy (and condemn the Japanese judiciary for chipping away at it) for the sake of Japan’s safety and social cohesion.

Get it? Sorry, I don’t. That’s why I’m not going to do a paragraph-by-paragraph commentary on what is essentially ideological nonsense.

But I will mention some glaring errors and omissions in the article:

1) “Pushed to the brink of ruin… by the behavior of Russian sailors”. Not quite. Earth Cure KK’s original sauna did go bankrupt (shortly after it opened Yunohana in 1998), but it’s not as if the Russian sailors descended on the former. The sauna in fact courted Russian business, and according to sources in Otaru offered information to them at portside. The sauna’s location was, quite simply, bad, being on the higher floor of a bar district, and went bankrupt like plenty of other decrepit bathhouses are around Japan. And as other bathhouses around Otaru noted, “Why did Yunohana [which never let in any foreigners and thus never, despite the claims of the article, suffered any damage] feel so special as to need signs up? We didn’t put up signs and still stayed in business.” Because it’s easier to blame the foreigner for one’s own business problems; as was the fashion for some at the time.

Proof in hindsight: Now the signs are down, Yunohana as a franchise has profited enough to open three more branches around this part of Hokkaido, so nuts to the idea the company was ever in any danger of going bankrupt due to rampaging NJ. There are simply some people who do not like foreigners in this world, and some of them just happen to be running businesses. That’s why other developed countries have actual laws to stop them, unlike Japan. It had nothing to do with grandiloquent theories like “group accountability”.

2) This theory assumes the “group” being held accountable has clearly-defined dichotomous borders that are easily enforced. The article neglects to make clear that other members of the “group”, as in Japanese citizens, were also being turned away from places like Yunohana — and I’m not referring only to myself. I’m referring to other Japanese children (and not just one of mine). Hence given the overlap of internationalization, the theory, even if possibly correct, is in practice unenforceable.

3) And it is moot anyway. There is no mention of international treaty (the ICERD) which Japan effected in 1996, where it promised to enforce standard UN-sanctioned international norms and rules to eliminate all forms of racial discrimination. These are not “American” standards, as the article claims. These are world standards that the GOJ has acknowledged as the rules of play in this situation. The end.

4) The court decisions (there were in fact two, plus a Supreme Court dismissal) in any case does a) admit there was racial discrimination, but b) that RD was not the illegal activity. It was c) “unrational discrimination” based upon the judges’ interpretation of Japanese Civil Law, not the ICERD per se. Thus the standards being applied are in fact Japanese. Read the court documents. Everything is online. And in book form. In two languages.

There are more errors, but never mind. If the writer were to do a bit more homework about the facts of the case at hand, instead of trying to squash a landmark legal case into his own ideological framework, I think we might have had a more interesting discussion. But working backwards from a conclusion (especially when it’s a dogma) rarely results in good science, alas. Maybe his advertised book will offer something with better analytical power. Arudou Debito


One comment on “Japan Times Zeit Gist followup on Dec’s Otaru Onsen lawsuit analysis

  • I’ve been following this series of posts and I have several questions. The biggest question for me seems to be in a disconnect between the laws and the on-the-ground culture of Japan. Of course, since the Meiji period (I think?) Japan has sought to create a nation based on the rule of law, but court cases aside, most of the Japanese I talk to about this issue 1. haven’t heard of the case, 2. think that the discrimination is wrong, and yet 3. admit that they sympathize with the owners of such establishments. That’s only representative of my circle of acquaintances, though – so I hope that others will chime in (or perhaps have elsewhere) with the responses they get when they bring this issue up informally.
    I think it’s not just me who would want to bring up the idea that there is a relatively wider gap in Japan between established laws and on-the-ground, in-the-streets culture. Are there any other examples of this in Japan? I’m sure.

    In America and elsewhere, landmark court cases often went against the majority particularly in a regional context vs. national rulings, and a couple of generations down the line we see that things have shifted culturally, partially as a result of the courts continuing to uphold previous rulings.

    One could make the case that a law is a law and that’s the end of the story, but is it worthwhile to distinguish between laws adopted in an international context (and consequently we would need to factor in Japan’s vanity on an international stage..) and home-grown laws created domestically by Japanese people? Even the anti-discrimination clause in the constitution was formed under international supervision. Where are the domestically created laws? Is the anti-discrimination law we need so badly going to be the first?

    Debito, I have a lot of respect for you and what you’ve done and been through. The way I understand what you’re doing is that in essence you are trying to get Japan and Japanese people to own up to their own laws, whether domestic or international. Consequently, after attempting every other means of resolution, you took the onsen owners to court and won the ruling. You will probably continue to insist on adherence to these laws as an effective means of Japan becoming a responsible and honest player on the contemporary scene, both domestically and internationally.

    This isn’t to say that a law isn’t a law in a nation, but I’m holding off positing a right-or-wrong viewpoint here because I would like to see this examined a bit more sincerely. I don’t come from a place that has been so prominently defined by pressure from other countries (I’m American by birth). I think what I am asking all boils down to this – what the hell is it that makes it so hard for Japan to own up to its own laws? Without a sincere acknowledgement and incorporation of this into our strategy, I suspect that we’ll be missing out on something. Moreover, oughtn’t we be pushing ourselves to assimilate (for lack of a better word) more evenly in Japanese society – language is a big one for me. Not much discussion of it here, which is mostly focused on Japan’s responsibilities to its citizens, but somehow I think we could incorporate a sense of our responsibility to the Japanese as a mutual, holistic strategy here – we know that there are gaping holes on both sides. Links and book recommendations are welcome!

    If you’ve read this far, thanks for hearing my questions and tiny suggestions.

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