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Critical legal thinking for blind justice
Acknowledging the power of law through a web-based mock seminar

Yasuhiro Akiyama
Professor, Faculty of Law, Waseda University

Web-based mock seminar in session

During the past several years, I have been responsible for the School of Law’s mock seminars held during Waseda University’s Open Campus program hosted in August. These mock seminars are intended to convey the advantages of studying law to participants.

In this article, I will use an issue related to civil law, which is my specialization, to hold a web-based mock seminar.

What do you think about the situation below? Please take a moment to reflect on it before proceeding to the following sections (note that the situation is fictitious and slightly unrealistic).

Person A (20 years old) had his eyes on his smartphone while riding his bicycle on a sidewalk. Then, Person A crashed into Person B (21 years old) from behind, causing Person B to fall down and become injured. When the accident occurred, Person B was on an extreme diet, which had weakened his bones. As a result, he broke his right leg and paid 200,000 yen for medical treatment. It is projected that if Person B had not been on a diet, he would have suffered a less serious injury and that the medical bills would have totaled approximately 50,000 yen only.

Person A claimed, “This accident is my fault for not paying attention to the road ahead. So, in accordance with Article 709 of the Civil Code (*), I will compensate Person B for the medical bill he paid. However, I believe it’s unnecessary to pay the full 200,000 yen for compensation. It should be reduced by 150,000 yen to 50,000 yen.” Is Person A’s argument acceptable?

(*) Article 709 of the Civil Code
A person who has intentionally or negligently infringed any rightof others, or legally protected interest of others, shall be liable to compensate any damages resulting in consequence.

From Person A’s point of view…

As stipulated in Article 709 of the Civil Code, since Person A caused an injury to Person B's body (infringe on any rights of others) by crashing his bicycle into Person B due to his carelessness (negligence), he is liable for compensating Person B for the medical expenses incurred (damage). Person A himself accepts his liability for compensating Person B for the damage.

The point raised by Person A is that the compensation amount of 200,000 yen is excessive. He argues that the extra 150,000 yen for medical expenses is due to Person B’s extreme diet; therefore, Person B should pay this himself (the increase should be deducted from the amount Person A would pay).

The Civil Code advocates a notion that the damage caused shall fairly be shared by the offender and the victim (known as the idea of fair sharing of damage). According to this idea, if damage is caused or expanded due to unique traits of the victim (such as personality, physical features, and diseases), the victim should pay for the damage caused or expanded by such predispositions, and the amount of compensation to be paid by the offender should be reduced accordingly[1]. Thus, perceiving the situation this way meets the idea of fair sharing of damage.

Based on the idea described above, it can be said that the damage caused to Person B in this situation was increased by 150,000 yen due to one of Person B's predisposition of having weak bones due to an extreme diet. For this reason, Person A can argue that Person B should pay 150,000 yen for the expanded damage, and the amount of compensation Person A is responsible for should be reduced to 50,000 yen.

From Person B’s point of view…

Person B may refute Person A's argument in this manner:

If the amount of compensation is reduced due to the victim’s predispositions, an incident such as the following may occur: a person with an ailment becomes the victim of a traffic accident, and the amount of compensation is reduced under the idea of fair sharing of damage because of their condition. To avoid such situations, they may avoid going places where there is heavy traffic or stop going out altogether. Therefore, the freedom of people with predispositions such as medical symptoms will be restricted.

Society, however, is a group of people with various predispositions: those with strong or weak bones, a strong or weak mental state, those who are sick and healthy and so on. Because every individual has unique qualities in our society, offenders who cause traffic accidents must consider these factors and compensate for all the damage caused. The legality of requiring victims to share the portion of the damage caused or expanded due to their predispositions is absurd.

From this logic, Person A's compensation should not be reduced in principle. The reduction of compensation due to the idea of fair sharing of damage will be permitted only in exceptionally rare cases. The idea of fair sharing of damage will be applied only if the case above, in which the victim was on such a severe diet that his bones had become awfully weak, is deemed to be extreme [2].

Finding a convincing solution based on the common grounds of law through critical thinking and discussions

As shown by Person A’s arguments and Person B’s counterarguments, there are many cases in law where a single correct answer does not exist. Person A’s arguments and Person B’s counterarguments are both justifiable under the Civil Code.

Then, whose argument should we adopt? In law, the decisive factor is the more persuasive reasoning (which are called “theories,” “principles,” “ideas,” “institutions,” etc.) based on the foundations of law. Hence, law is sometimes called “the discipline of persuasion.”

We must be aware not to evoke authority by saying that Person A’s argument is valid because a top-ranking expert says so, not to appeal to the emotion of others by supporting Person B’s counterarguments because we feel sorry for him, and not to be swayed by the atmosphere in which public opinion supports Person A’s argument without rationale. It is imperative to build one’s arguments sensibly based on grounds that pass muster in the realm of the law, for instance, the idea of fair sharing of damage and the principle that offenders must accept the fact that there are people with various predispositions in society. Moreover, it is necessary to find an even more convincing solution while discussing the points of arguments openly based on law.

It is also important to look at the situation from various perspectives without being fixated to one particular viewpoint. As represented by Person A (the offender) and Person B (the victim) in the question, people with conflicting interests exist in the world of law. While paying attention to the interests of the other party, we should think about the arguments to unfold for protecting our interests and persuading the other party[3].

Conclusion: An exhortation of law

The advantages of studying law can be summarized as follows:

  • Form opinions about an issue based on the common grounds of law, discuss it openly, and find a convincing solution
  • In this process, it is important to look at things from various viewpoints and formulate opinions logically without being swayed by authority, emotion, and atmosphere

This way of logical thinking and the process we use when studying law are useful skills not only for jurists (lawyers, judges, and public prosecutors) but for everyone in society. They could also be applied, for example, when businesses decide whether they should develop new products or when people make a decision about purchasing a house.

I would be quite happy if the readers of this article could sense the possibilities behind law.

Introductory books recommended by the author
  • Masato Dogauchi, A Slightly Different Introduction to Law, Which Encourages One to Think on Their Own (New Edition) (Yuhikaku Publishing, 1998)
  • Koji Omi, An Introduction to the Civil Code from Scratch (Seibundo Publishing, 2012)
  • Atsushi Omura, An Introduction to Law for Fathers and Their Daughters (Iwanami Junior Shinsho, 2005)
  • Sota Kimura, An Introduction to Law by Associate Professor Kiyomizu (Seikaisha Shinsho, 2012)
  • ^ Article 722 paragraph (2) of the Civil Code stipulates that if a victim is negligent, the court may determine the amount of compensation by taking that factor into consideration. In this case, the method called “analogy” outlined in article 722 paragraph (2) of the Civil Code is used. The method of analogy is defined as follows: In cases in which Situation X occurs, Rule Y applies, if Situation X’ similar to Situation X occurs, Rule Y shall also apply to Situation X’ because Situations X and X’ are similar to each other.
  • ^ Person A’s arguments and Person B’s counterarguments described above are put forward by simplifying technical discussions and omitting complicated ones. Those who wish to experience technical discussions are advised to refer to pages 204-205 of Atsumi Kubota’s paper “Considering comparative negligence and physical characteristics,” which is included in 100 Most Prominent Precedents Related to the Civil Code II: Claims (7th Edition), edited by Hiroyasu Nakata and Atsumi Kubota (Yuhikaku Publishing, 2015).
  • ^ For more information, refer to pages 7-14 (written by Masakazu Harada) of Legal Research & Report by Hirotaka Tadaka, Masakazu Harada, and Yasuhiro Akiyama (Yuhikaku Publishing, 2015).

Yasuhiro Akiyama
Professor, Faculty of Law, Waseda University

[Brief history]

Yasuhiro Akiyama graduated from Waseda University with a bachelor’s degree in law in 1995. In 2000, he earned required credits for the Doctoral Program at Graduate School of Law. After serving as Assistant Professor and Associate Professor at School of Law, he became Professor at Faculty of Law, Waseda University in 2009.

[Major research subjects]

Various Civil Code problems related to the ownership and use of real estate


An Introduction to the Real Estate Law(Nippon Hyoron Sha, 2011), Real Rights Act (co-authored, Nippon Hyoron Sha, 2015), Legal Research & Report (co-authored, Yuhikaku Publishing, 2015), 2011 Tohoku Earthquake and Tsunami: Reconstruction of People’s Lives and the Jobs of Lawyers(co-authored, Nippon Hyoron Sha, 2012), and Civil Code II: Real Rights (co-authored, Yuhikaku Publishing, 2010)