Fifteen Eighty Four

My new book, From Manners to Rules: Advocating for Legalism in South Korea and Japan, challenges the conventional wisdom that law and courts play marginal roles in Korean and Japanese politics. In the book, I document the emergence of legalistic approaches to governance in the “hard cases” of Korea and Japan, where governance was previously characterised by nonbinding measures, bureaucratic discretion, and malleable, vague laws that couldn’t be used in court. My research reveals how activists and lawyers contribute to a more legalistic regulatory style by demanding and using more formal, detailed, and enforceable rules and participatory policy processes. This legalistic turn is reshaping the who and the how of policy design and implementation. Though the trend is surprising in Korea and Japan, it is not unique to them.

Existing studies of legalism or the broader judicialisation of politics elsewhere tend to emphasise top-down or structural factors. For example, institutional fragmentation, weak administrative capacity, the threat of electoral turnover, new courts’ activism, the empowerment of the political left, globalisation, regional integration, as in the European Union, and the diffusion of international norms have all been cited when explaining legalism or the broader judicialisation of politics. While not wrong, such top-down or structural explanations undervalue societal groups’ role in bringing cases before the courts, shifting lawmakers’ preferences, proposing novel policy solutions, or harnessing international trends. From Manners to Rules instead showcases the bottom-up change agents reshaping regulatory style in East Asia’s leading democracies.

This book analyses varying degrees of legalistic governance (or lack thereof) in Korean and Japanese social policy through paired longitudinal case studies of recent reforms related to disability rights (antidiscrimination and accessibility) and tobacco control (tobacco liability and indoor smoking restrictions). I trace the enactment, implementation, and revision of policies and related lawsuits over three decades. Activists and lawyers mobilised for more legalistic policy solutions in both policy domains. Roughly contemporaneous international treaties – the 2006 UN Convention on the Rights of Persons with Disabilities and the 2003 WHO Framework Convention on Tobacco Control – and legislation and lawsuits abroad allowed them to share ideas about legal norms and legalistic enforcement mechanisms. The comparisons shed light on how societal actors contributed to legal and institutional changes and why they struggled to do so in the case of tobacco liability.

Changing the who and the how of policymaking is rarely easy and usually incremental. The paired case studies point to five interconnected mechanisms through which activists and lawyers encourage a legalistic regulatory style. First, by defining or framing a problem as a rights violation, they couple it with legalistic policy solutions like rights protections and legally binding obligations. Second, by expanding the range of groups supporting reforms, they build credibility with numbers and external validation, which often gets them a seat at the table and channels for delivering legalistic policy proposals. Third, when activists and lawyers shoulder the costs of researching policy options, including from abroad, and drafting proposals, they provide information subsidies that make it easier for decision-makers to adopt legalistic policy solutions. Fourth, activists file lawsuits demonstrating the usefulness (or not) of existing legal frameworks, hold officials accountable for implementation, and reinforce rights framing. Fifth, activists leverage the international scrutiny of treaty reporting schedules and compliance monitoring procedures to pressure their government to enact and thoroughly implement legalistic reforms. The book’s empirical chapters suggest that advocacy for legalism is more effective when backed by support structures that include lawyers and organisations with rights advocacy goals, when opponents to legalistic reforms are diffuse or unorganised, and when activists systematically coordinate these five mechanisms.

The research behind this new book is distinctive in its depth and breadth. It draws on process tracing and analysis of diverse primary and secondary Korean, Japanese, and English sources. I conducted 120 original interviews with lawyers, activists, journalists, scholars, officials, judges, and politicians. Social movements’ blogs, newsletters, legal strategy documents, policy proposals, videos, and media coverage offered further insights into activists’ activities and perceptions of their opportunities and constraints. Analysis of legislative debates, proposed bills’ text, court rulings, policy implementation reports, and broader media coverage also shed light on policymaking and enforcement and how they are changing.

This new book makes several contributions to scholarship. First, it identifies and analyses a significant transformation in East Asian democracies’ approach to governance, which entails a greater role for law and courts and the broader judicialisation of politics. Second, the book illuminates oft-overlooked societal drivers behind this legalistic turn in governance by investigating the “demand for law” and law in action rather than just on the books. Third, to characterise what is changing about governance, I systematically combine legal and political opportunities frameworks with studies of regulatory style and the broader judicialisation of politics. Clarifying the observable implications of legalism – more formal rules and more contested, participatory procedures – contributes conceptually to future comparative research. Fourth, this book extends the geographic scope of research about legal mobilisation, cause lawyering, and legal opportunity structures to East Asia.

The phrase “from manners to rules” – which the Japanese government used to describe its new policy toward indoor smoking in 2018 – is a helpful shorthand for the legalistic turn in governance that this book documents and explains. The reality is perhaps more complex, as even legalistic policy solutions depend on voluntary compliance and nonbinding measures or programs to raise awareness. Nonetheless, this book’s analysis of the legalistic turn in governance reveals how activists and lawyers are creatively using and deepening legal frameworks in ways that produce institutional and social changes and transform citizens’ options for political participation down the road.