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The Implications of Apology: Law and Culture in Japan and the United States

Published online by Cambridge University Press:  02 July 2024

Hiroshi Wagatsuma  and
Arthur Rosett
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Abstract

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The significance of apology after serious injury depends on social and cultural factors that appear to be understood differently in Japan and America. As a consequence, what is considered a sincere apology is not the same in the two societies. Moreover, the role of an apology as an ingredient in the formal resolution of legal disputes diverges. Salient legal aspects of apology are discussed, along with the possibilities that an apology may be a defense to a claim, that it may be an admission of another's claim, and that an apology may be a legal remedy for injury. The role in Japan of the formal letter of apology, shimatsusho, is described. It is suggested that apology may be an underdeveloped aspect of dispute resolution in America. There are some injuries when an apology alone surely is inadequate compensation, but there are other injuries when traditional common law remedies are unsatisfactory and an apology may be a crucial element in the recognition and restoration of human relationship.

Type
Research Article
Information
Law & Society Review , Volume 20 , Issue 4 , 1986 , pp. 461 - 498
Copyright
Copyright © 1986 The Law and Society Association

Footnotes

This essay was one outgrowth of the authors' joint teaching and research between 1978 and 1985 (see also Wagatsuma and Rosett, 1983). A first draft was written by Professor Wagatsuma during his last illness on the basis of our research and discussion over several years. It has been revised to its present form by Professor Rosett.

As this and our other joint publication demonstrate, our work together often took the form of spirited debate. Readers will observe, therefore, that similar points may be approached from more than one angle. To suppress these disconnections would at least understate the cultural dissonance inherent in a joint study by an American and a Japanese and at worst demonstrate a crude form of intellectual imperialism.

My grief at losing a delightful and invaluable teacher, friend, and coworker is very great. My loss is aggravated by the fear that, in clumsily completing my friend's part of our work, I have distorted his views. I wish he were here to set me straight.

References

References

AMES, Walter (1981) Police and Community in Japan. Berkeley: University of California Press.CrossRefGoogle Scholar
BAYLEY, David (1976) Forces of Order: Police Behavior in Japan and the United States. Berkeley: University of California Press.Google Scholar
BELL, George (1953) “Admissions Arising Out of Compromise—Are They Irrelevant?,” 31 Texas Law Review 239.Google Scholar
BENEDICT, Ruth (1946) The Chrysanthemum and the Sword. Boston: Houghton Mifflin.Google Scholar
COULMAS, Florian (1981) “‘Poison To Your Soul’ Thanks and Apologies Contrastively Viewed,” in Coulmas, F. (ed.), Conversational Routine. The Hague: Mouton.Google Scholar
DOI, Takeo (1973a) The Anatomy of Dependence. Tokyo: Kodansha. [Originally published in Japanese in 1971 as Amae no Kozo. Tokyo: Kobundo.].Google Scholar
DOI, Takeo (1973b) “Omote and Ura—Concepts Derived from the Japanese 2-Fold Structure of Consciousness,” 157 Journal of Nervous and Mental Disease 258. [Reprinted as Doi, 1986, appendix II.].Google Scholar
DOI, Takeo (1975) Amae Zakko [Miscellaneous articles on Dependence]. Tokyo: Kobundo.Google Scholar
DOI, Takeo (1986) The Anatomy of Self. Tokyo: Kodansha.Google Scholar
ELDREDGE, Laurence (1978) The Law of Defamation. Indianapolis: Bobbs-Merrill.Google Scholar
EMMISON, Frederick (1973) Elizabethan Life: Morals and the Church Courts. Chelmsford: Essex County Council.Google Scholar
FESTINGER, Leon (1957) Theory of Cognitive Dissonance. Evanston, Ill.: Row, Peterson.CrossRefGoogle Scholar
GATLEY, Clement (1981) Libel and Slander, 8th Ed., ed. Phillip Lewis. London: Sweet & Maxwell.Google Scholar
GEIS, Gilbert (1975) “Victims of Crimes of Violence and the Criminal Justice System,” in Chappell, D. and Monahan, J. (eds.), Violence and Criminal Justice. Lexington, Mass.: Lexington Books.Google Scholar
GOFFMAN, Erving (1971) Relations in Public: Microstudies of the Public Order. New York: Basic Books.Google Scholar
HAIR, Paul (1972) Before the Bawdy Court: Selections from Church Court Records. New York: Barnes & Noble.Google Scholar
HALEY, John (1982) “Sheathing the Sword of Justice in Japan: An Essay on Law without Sanctions,” 8 Journal of Japanese Studies 265.Google Scholar
HALL, Donald (1975) “The Role of the Victim in the Prosecution and Disposition of a Criminal Case,” 28 Vanderbilt Law Review 931.Google Scholar
HARRIS, Mary (1974) “Mediators between Frustration and Aggression in a Field Experiment,” 10 Journal of Experimental Social Psychology 561.Google Scholar
HATTORI, Takaaki, and Dan, HENDERSON (1983) Civil Procedure in Japan. New York: Matthew Bender.Google Scholar
HAWKINS, Keith (1984) Environment and Enforcement: Regulation and the Social Definition of Pollution. Oxford: Clarendon Press.CrossRefGoogle Scholar
HEGLAND, Kenney (1982) “Why Teach Trial Advocacy? An Essay on Never Ask Why,” in Himmelstein, J. and Lesnick, H. (eds.), Humanistic Education in Law, Monograph III. New York: Columbia University School of Law.Google Scholar
HELMHOLZ, Richard (1986) Selected Defamation Cases. London: Selden Society.Google Scholar
HENDERSON, Dan F. (1965) Conciliation and Japanese Law. Seattle, University of Washington Press.Google Scholar
HILLS, Carla (1985) Antitrust Advisor. Colorado Springs: Shepards.Google Scholar
HOLDSWORTH, William (1925) History of English Law. London: Methuen.Google Scholar
ITO, Einosuke (1962) “The Nightingale,” in Morris, I. (ed.), Modern Japanese Stories. Rutland, Vt.: Charles Tuttle.Google Scholar
Jiyu Kokumin Sha (1961). Tokyo.Google Scholar
LANHAM, Betty, and Masao, SHIMURA (1967) “Folktales Commonly Told American and Japanese Children: Ethical Themes of Omission and Commission,” 80 Journal of American Folklore 33.Google Scholar
LAW IN JAPAN (1975) “Diary of a Plaintiffs' Attorneys' Team in the Thalidomide Litigation,” 8 Law in Japan 136.Google Scholar
LAW IN JAPAN (1979) “Terms of Settlement: The SMON Litigation,” 12 Law in Japan 99.Google Scholar
LEBRA, Takie Sugiyama (1976) Japanese Patterns of Behavior. Honolulu: University Press of Hawaii.CrossRefGoogle Scholar
LIBEL DEFENSE RESOURCE CENTER (1984) 50-State Survey 1984, Current Developments in Media Libel and Invasion of Privacy Law. New York: Libel Defense Resource Center.Google Scholar
MCCORMICK, Charles (1938) “The Scope of Privilege in the Law of Evidence,” 16 Texas Law Review 447.Google Scholar
MCCORMICK, Charles (1954) Evidence. St. Paul: West.Google Scholar
MACNEIL, Ian (1980) The New Social Contract. New Haven: Yale University Press.Google Scholar
MAYER, Cynthia (1984) “Japan behind the Myth of Japanese Justice,” The American Lawyer (July/August) 113.Google Scholar
MENKEL-MEADOW, Carrie (1984) “Toward Another View of Legal Negotiation: The Structure of Problem Solving,” 31 UCLA Law Review 754.Google Scholar
MENKEL-MEADOW, Carrie (1985) “For and against Settlement: Uses and Abuses of Mandatory Settlement Conference,” 33 UCLA Law Review 485.Google Scholar
MINISTRY OF JUSTICE RESEARCH AND TRAINING INSTITUTE (1980) Summary of the White Paper on Crime. Tokyo: Government Printing Office.Google Scholar
NAGANO, Miho (1985) “‘How to Say I'm Sorry’: The Use of Apologies in Japan and the United States,” Master's Thesis, San Francisco State University.Google Scholar
NAKANE, Chie (1970) Japanese Society. Berkeley: University of California Press.Google Scholar
PETERSON, Linda (1985) “Newman's Apologia pro vita sua and the Traditions of the English Spiritual Autobiography,” 100 Publications of the Modern Language Association 300.Google Scholar
PRESIDENT'S TASK FORCE ON VICTIMS OF CRIME (1982) Final Report. Washington, D.C.: Government Printing Office.Google Scholar
RAVEN, Bertram, and Jeffrey, RUBIN (1983) Social Psychology. New York: Wiley.Google Scholar
REICH, Michael (1982) “Public and Private Responses to a Chemical Disaster in Japan: The Case of Kanemi Yusho,” 15 Law in Japan 102.Google Scholar
RISKIN, Leonard (1982) “Mediation and Lawyers,” 43 Ohio State Law Journal 29.Google Scholar
ROSETT, Arthur, and Donald, CRESSEY (1976) Justice by Consent. Philadelphia: Lippincott.Google Scholar
SACK, Robert (1980) Libel, Slander, and Related Problems. New York: Practising Law Institute.Google Scholar
STEINHOFF, Patricia, Ellis, KRAUSS, and Thomas, ROHLEN (1984) Conflict in Japan. Honolulu: University of Hawaii Press.Google Scholar
SULLIVAN, Lawrence (1977) Antitrust St. Paul: West.Google Scholar
UNGER, Roberto (1976) Law in Modern Society. New York: Free Press.Google Scholar
VAVER, David (1974) “‘Without Prejudice’ Communications—Their Admissibility and Effect,” 9 University of British Columbia Law Review 85.Google Scholar
WAGATSUMA, Hiroshi, and Arthur, ROSETT (1983) “Cultural Attitudes towards Contract Law: Japan and the United States Compared,” 2 UCLA Pacific Basin Law Journal 76.Google Scholar
WEINSTEIN, Jack and Margaret, BERGER (1975) Evidence, Vol. 2. New York: Matthew Bender.Google Scholar
WIGMORE, John (1972) Evidence (Chadbourn rev.). Boston: Little, Brown.Google Scholar
WRIGHT, Charles, and Kenneth, GRAHAM (1980) Federal Practice and Procedure, Vol. 23. St. Paul: West.Google Scholar
YAMASHITA, Takayuki (1985) “Compromise and Conciliation,” in Kitagawa, Z. (ed.), Doing Business in Japan. New York: Matthew Bender.Google Scholar
YOSHIKAWA, Seiichi (1978) “The Judge's Power to Propose Terms for Settlement: The SMON Case,” 11 Law in Japan 76.Google Scholar
YOUNG, Michael (1984) “Judicial Review of Administrative Guidance: Governmentally Encouraged Consensual Dispute Resolution in Japan,” 84 Columbia Law Review 923.Google Scholar

Cases Cited

Linney v. Maton, 13 Tex. 449, 458 (1855).Google Scholar
North Carolina v. Alford, 400 U.S. 25 (1970).Google Scholar
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).Google Scholar
Townsley v. Yentsch, 98 Ark. 312, 135 S.W. 882 (1911).Google Scholar
Trabue v. Mays, 33 Ky. (3 Dana) 138, 28 Am. Dec. 61 (1835).Google Scholar

Rules Cited

Cal. Evid. Code 1152.Google Scholar
Cal. R. Ct. 419(a)(4), 419(d)(9), 423(b)(3).Google Scholar
Fed. R. Evid. 408, 409.Google Scholar

Statutes Cited

Lord Campbell's Act, 1843, 6 & 7 Vict., ch. 96, § 1.Google Scholar
Fla. Rev. Stats. § 770.02 (1986).Google Scholar
Miss. Code Ann. § 95-1-5 (1972).CrossRefGoogle Scholar
N.C. Gen. Stat. § 99-2 (1985).Google Scholar
Tenn. Code Ann. § 29-24-103 (1980).CrossRefGoogle Scholar
Tex. Civ. Prac. Remedies Code § 73.003(a)(3) (1985).Google Scholar
Va. Code § 8.01–48 (1984).Google Scholar
W. Va. Code § 57-2-4 (1966).Google Scholar
KEIHŌ (Japanese Penal Code), Law No. 45 of 1907, art. 248.Google Scholar