Book Review: Modern Trends in Tort Law: Dutch and Japanese Law Compared. Edited by Ewould Hondius, the Hague: Kluwer Law International, 1999.

6 Colum. J. Eur. L. 147 (2000)

reviewed by Li Yu.

The centuries old field of tort law has in the past few decades undergone an unprecedented expansion. Behind this expansion lies not only the growing pace of industrialization around the globe magnifying the pool of the victims of human errors, but also the extension of many ancient legal principles to accommodate “the new sensitivities we seem to acquire” toward the plight of those injured. In the United States, mass tort suits have posed a forceful challenge to the very procedural ideals of common law adjudication in the continuing wave of asbestos litigation. In Modern Trends in Tort Law: Dutch and Japanese Law Compared, Ewould Hondius gathers together an interesting collection of papers examining the ways in which legal communities in Japan and the Netherlands have responded to the new demands imposed upon the field of tort law by changes affecting these societies.

This volume contains proceedings of the Second Conference on Dutch-Japanese Law, held in August 1996 at the University of Utrecht. With its authors drawn mostly from academic backgrounds, but including also two former Advocate-Generals of the Hoge Raad-the Dutch Supreme Court, this book is primarily addressed to legal scholars and practitioners in the Netherlands and Japan. It is intended to be a means of facilitating further exchanges between the communities of lawyers and academics in each country by offering them an introduction to legal system of their counterparts. The papers included here offer the reader a comprehensive perspective on the state of tort law in the Netherlands and Japan for medical, traffic, product, and environmental liability cases. To emphasize the comparative nature of the book, moreover, the editor arranges the papers in such a way that analyses of a subject from Japanese scholars are directly followed by those from the Dutch scholars and vice versa in pairs, with one Japanese and one Dutch contribution on each topic. Thisjuxtaposition further promises the reader an interesting perspective on the evolution of tort law where they are, as T. Koopmans notes in his summary, “applied in different societies by different institutions.”‘

The first twelve essays in this volume address the specific aspects of tort law in the two countries. The following four articles, unfortunately placed toward the end of the volume, are addresses given at the open session of the Conference by scholars who possess insights into both legal regimes and have a strong interest in comparative law. They actually offer a helpful introduction to the background of the preceding essays with their more specific foci. Readers unfamiliar with the history or current trends in Japanese and Dutch law will probably benefit from turning to them first.

In his concise discussion of the dilemmas Japan faced along its path of legal modernization, Riyichi Hirano observes that the application of legal rules in Japan has often involved a difficult struggle between the norms of Western enlightenment implicit in the Civil Codes and a traditional disdain of litigiousness in Japanese culture. That is, unlike “in the case of the West where the living law constituted the reality and the statutory laws only written rules in law books,” the language of statutory law offered (Japanese people) “a means of expressing modern thought and became itself a powerful motor of social change.”4 This normative incongruity impresses its mark upon fields like family law, where the clash of tradition and modernity is most acutely felt. It also influences, as Hirano notes, it has also had an impact on alternative dispute resolution in cases arising out of torts and contract law.

The Japanese courts commitment to provide “equitable allocation of damages” in torts and contract cases is another example of the influence of traditional cultural norms on the law, this time inside the litigation itself. Yoshihisa Nomi finds that Japanese courts have allowed themselves much discretion in the fashioning ofjudgments in order to balance the rightful demands of victims and the economic interest of the defendants. This has, for example, lead to the export of the “comparative negligence” doctrine and “foreseeability” standard into contract law when parties determine damages they owe each other in cases of breach or mistake. In torts, the demand for equity has allowed Japanese courts to introduce proportional recovery based on probability ofcausation as well as comparative fault. This degree ofjudicial discretion enabled the courts to reach economically more efficient resolutions of mass toxic tort cases. This stands in sharp contrast with the experience of the painful process of asbestos litigation in the United States, where the Federal judges’ ability to innovate in order to achieve equitable outcomes is constrained by both the authority of common law and requirements of Due Process. Furthermore, such efficiency was demonstrated in the second Minimata litigation, which turned on an unclear causal link between the defendants mercury poisoning and allegedly resulting illness. A Japanese court nevertheless was able to quickly resolve the dispute over causation by linking the extent of compensation to a plaintiff’s position on a grid representing the likelihood of industrial pollution being the cause for her illness.

While the Dutch history spared its legal system from having to deal with an identity crisis of its normative foundations similar to what the Japanese legal system experienced, it has also been faced with the need to reform in light of a changing world. In his expansive retrospective address on impact of the 1992 recodification of parts of the Dutch Civil Code, Ewould Hondius finds the recent modifications to be the culmination of a long-standing desire from the Dutch legal community to keep the statutory law on pace with social changes. Yet, the subsequent case law interpreting the new rules demonstrates that even the most up to date rules cannot entirely circumvent controversies. Currently, the Netherlands is the only EU Member State beside the United Kingdom where the power to determine the constitutionality of statutes and customs lies in the hands of the Parliament instead of a court. As the legal unification of Europe proceeds forward, the institutional context of the application of Dutch law will probably change correspondingly. Hondius suggests that this will likely lead to further difficulties with the implementation of the new Dutch Civil Code. This is especially so in the field of tort law where the Dutch statutory law has continually lagged behind the expanding guarantees of individual rights under EU law.

In the substantive liability rules effective in the Netherlands and Japan, a reader will probably find far fewer instances of disparities than she might imagine. In this respect, a comparison of the Dutch and Japanese laws governing the doctor’s standard of care when performing euthanasia, for example, proves revealing. In the Netherlands, while performing active euthanasia still subjects its author under official criminal liability, a doctor will not be prosecuted as long as she can successfully demonstrate the presence of necessity (objective force majeure). The demonstration involves express consent from the patient who had been suffering from unbearable pain and anguish, which available medical treatments were unable to alleviate. A Dutch doctor is also obliged to exercise due care in the determination of the necessity of life-termination by consulting with colleagues and the patient’s family. In Japan, a similar set of requirements is in place, with the important additional stipulation that there must be a showing that the patient’s death is unavoidable and imminent. This important distinction does not erase the fact, however, that in dealing the issue of euthanasia the respective legal communities, in Japan and the Netherlands, traversed similar terrain while striving after reasonable solutions to the conflicting demands of respect for individual autonomy and social norms upholding the sanctity of life.