“Japan and South Korea’s Legalistic Turn” (Celeste Arrington seminar)

by Sophie Welsh

[Video recording]

Japan and South Korea have historically adopted a more bureaucratic, non-legalistic, flexible approach to governance, due to institutional hurdles (such as small number of lawyers) and cultural deterrents to litigation (such as the pro-government bias among judges). However, their systems of governance underwent parallel reforms in the past two decades. What accounts for this legalistic turn in Japan and South Korea’s governance? To what extent and how are civil society groups contributing to such transformations in governance? In the policy innovations seminar (October 25, 2021), Professor Celeste Arrington (George Washington University) explored these questions in her seminar, “From Manners to Rules: The Legalistic Turn in Governance and Secondhand Smoke Prevention in Japan and South Korea.” The presentation reported findings from her forthcoming book, “From Manners to Rules,” which used paired comparisons of Japan and South Korea in four areas: disability discrimination, accessible public transportation, tobacco product liability, and indoor smoking restrictions.
In both Japan and Korea, there has been a growing use of legalistic policy, characterized by more formal and detailed rules and rights, sanctions for rule-breakers, and proceduralized enforcement via courts. This trend is consistent with the emerging comparative legal and political science scholarship on “adversarial legalism,” “Eurolegalism,” “authoritarian legality,” and “judicialization of politics.” A prime example of this phenomenon is that of smoking bans in areas such as sidewalks and indoor spaces. 
The existing explanations often emphasize the top-down political dynamics, such as the role of political elites, to tie their successors’ hands of fulfill international treaty commitments, or the role of judges, to pressure other branches or send signals to policymakers. Such explanations are insufficient in explaining the recent developments in Japan and Korea. Professor Arrington emphasizes the central role of activists and lawyers as change agents, in their campaigns for legalistic policy solutions and litigation, which sought more formal and detailed regulations and more legalistic governance.
The case of tobacco control illustrates these political dynamics well. The Framework Convention on Tobacco Control (FCTC) was ratified by Japan in 2004 and South Korea in 2005. Its Article 8 promotes a 100% smoke free environment to protect people from exposure to tobacco smoke. In South Korea, policy changes included the 1995 National Health Promotion Act (NHPA) and its revisions (making eateries smoke-free by 2015), as well as outdoor smoking bans. Smoking rooms were closed in government, medical, and educational facilities. In Japan, the 2002 Health Promotion Law (HPL) endeavored to prevent secondhand smoke in some public facilities, and over 200 local outdoor bans were also introduced. The 2018 revisions to HPL expanded the smoking ban, while introducing fines and promoting separate smoking rooms. Minors were no longer allowed in smoking areas, and smoking rooms were required to display clear signage. In both countries, fines were enacted for rule-breakers.
Turning to the Japanese case, starting in the 1970s and 1980s, non-smoking seats in bullet train and non-smoking taxis appeared in cities.  There had been lawsuits that were unsuccessful, but raised awareness of the issue and incentivized private corporations to voluntarily implement measures to address secondhand smoke.  Meanwhile, in the Diet, pro- and anti-tobacco legislators debated this issue, and anti-tobacco lawmakers helped to write laws and ordnances.
One of the key issues in Japan and Korea is the much higher rate of smoking by males compared to females. In both countries, the male smoking rate has decreased more dramatically, declining from around one-half to about one-third of the male population.
With the 2018 and 2020 Olympics having taken place in Seoul and Tokyo respectively, the countries had an additional incentive to minimize public smoking. The Olympics have traditionally been non-smoking events, and the optics of breaking this tradition would have been unfavorable. In Japan, a new language of “sumohara”, or smoking harassment, came to be used widely. As a result of this “denormalization” of smoking, secondhand smoker exposure has become rarer in Japan. Since 2020, the outbreak of Covid-19 has complicated such trend, as people are spending more time at home, which has led to increased levels of secondhand smoke at home.
Professor Arrington’s presentation showed that legalistic policy change and social attitude change are mutually reinforcing. We look forward very much to reading her forthcoming book, and to learning more from her contributions to the comparative politics of Japan and South Korea.