Rethinking the Meaning of Damages and Disaster - …blog.hawaii.edu/aplpj/files/2016/01/APLPJ_16.2_Wada.pdf · 2016. 1. 25. · Rethinking the Meaning of Damages and Disaster - Incommensurability

Rethinking the Meaning of Damages and Disaster -

Incommensurability and Power in the Disputing

Process

Yoshitaka Wada *

I. INTRODUCTION ................................................................................. 195

II. INCOMMENSURABILITY BETWEEN THE LAW AND VICTIMS

NARRATIVES AFTER THE NUCLEAR PLANT ACCIDENT ...................... 196

A. Constructing the Meaning of Injury ......................................... 196

B. Theoretical Framework: Recursive Relation Between

Domination and Resistance ...................................................... 197

C. Incommensurability and Power - The Meaning of Damages

after the Accident ...................................................................... 199

D. Constructing the Meaning of Damages in Legal Discourse .... 200

E. Function of Law: Resolving Incommensurability or

Oppression by Power ................................................................ 201

III. THE MEANING OF DAMAGES FOR THE VICTIMS: THE RESULTS OF

THE SURVEY ..................................................................................... 202

A. Breakup of Family .................................................................... 205

B. Income Decrease and Difficulties in Living ............................. 207

C. Uneasiness and Anguish ........................................................... 210

D. Intention to Return .................................................................... 215

IV. TOWARD RESOLUTION THROUGH SYMPATHETIC CONFLICT

TRANSFORMATION ............................................................................ 218

* Professor of Law, Waseda Law School

2015 Wada 195

I. INTRODUCTION

There are undetermined elements in almost all of the basic

concepts underlying the law. In other words, it goes without saying that

there is some room for interpretation. This applies to the concept of

damages. The indeterminacy in such concepts is gradually reduced by the

accumulation of precedent, thus giving the law and legal concepts a

certain amount of stability.

There are cases where cultural differences are visible during the

construction of a concept. In Japan, the parents inherit the right to obtain

compensation of damages when a young child or unmarried person dies in

an accident. This is a rare approach in comparison to other nations. In

Europe, the right for compensation of damages is not inherited. When an

unmarried person or young child dies, their relatives are only repaid a very

small amount of consolation money or funeral service expenses. 1 The

rational system is another possibility, whereby reparations are limited to

psychological damages. Relatives do not inherit reparations because

parents and relatives are not dependent on the income of the young child

or unmarried person. 2 However, in Japan, it is considered natural for

parents or relatives to inherit the right to demand compensation.

Cultural differences, such as the amount that children support their

parents in old age, affect the treatment of damages. The different

perspectives on damages reflect the cultural differences of each legal

system. There is room for interpretation because of the unavoidable

indeterminacy, even when only discussing the concept of damages.

Therefore, the diversity of the culture and discourse will be utilized to

understand the indeterminacy and ambiguities of damages.

The process of establishing the meaning of damages is most

certainly not exclusive to the legislative system and lawyers. People's

consciousness and culture affect its meaning, and their narratives have a

degree of influence on the construction of meaning during the resolution

process.

In Japan, the criteria for the calculation of damages has been

established and refined in the context of reparations for damages incurred

in traffic accidents. Accordingly, the legal concept of damages has a

certain amount of stability. However, the appropriateness of the traditional

concept of damages becomes questionable in cases such as nuclear plant

accidents, where we are faced with untraditional injuries.

This paper will consider comparative perceptions of the

relationship between conflicting narratives surrounding damages that both

concerned parties use. It will consider the relationship of such narratives to

1 DAVID MCINTOSH & MARJORIE HOLMES, PERSONAL INJURY AWARDS IN EC

COUNTRIES: AN INDUSTRY REPORT (1990).

2 Id.

196 Asian-Pacific Law & Policy Journal Vol. 16:2

the pertinent legal discourse. Lastly, this paper will examine the dilemma

of requests for reparations and the structure of recognition for the victims

of radiation. Subsequently, there will be a theoretical examination of the

origins of bodily damages. Finally, after establishing the analytic

framework, there is a consideration of the dilemma concerning the

victims’ recognition and the associated legal requests.

II. INCOMMENSURABILITY BETWEEN THE LAW AND VICTIMS NARRATIVES

AFTER THE NUCLEAR PLANT ACCIDENT

A. Constructing the Meaning of Injury

What exactly constitutes “injury?” We have a certain image of

“injury” within our discourse structure, determined by our culture and

time. Typically, this injury is a bodily harm or wound caused by some

other person, such as a wound or death resulting from a traffic accident.

However, if we give careful consideration of who this other person is, the

definition of injury immediately becomes uncertain.

For example, the practice of foot-binding formerly carried out in

China from our modern cultural perspective appears to be child abuse in a

culture of historical gender discrimination. Thus, the women who were

forced into this practice were “victims” and were suffering from the

results, including difficulties with walking. However, foot-binding was a

common practice in Chinese society at that time. If it was not carried out,

women faced discrimination and ridicule. Circumcision is also a natural

practice in several religions and in the tribal societies of Africa and

Oceania. Thus, it is carried out as a common practice.

There is no voluntary decision in either of the cases of foot-binding

or circumcision because they are conducted on infants. Needless to say

these are things that are forced on a person by a “society” of others.

However, the people with these experiences would likely not be perceived

as suffering an “injury” after they become adults in these societies. Rather,

it seems they would receive social acceptance after the matter. Therefore,

“injury” is based on the discourse stemming from the culture at the time.

Such cultural phenomena are not unique. Even now, tongue or

nipple piercings may be a culturally acceptable form of physical

accessories. For example, piercings are an extremely widely accepted

form of decoration in Japan. There are also cultures where tattoos are

socially acceptable bodily ornamentation that carry religious significance.

Tattoos have gained a degree of acceptance. They have become

disassociated with many of the negative stigmas associated with members

of society, which was very common in Japan. Thus, these types of cultural

phenomena are not commonly regarded as “injury.” This is because such

examples are the results of individual choices.

However, these “voluntary” choices are results of “self-

motivation” that has been constructed amidst affirming, cultural evolution.

Piercings and tattoos are “voluntary” decisions where the individual

2015 Wada 197

considers the opinions and appearances of other people. This structure

does not change when many of the people who have undergone foot-

binding or circumcision voluntarily accept these things after they have

been done. This can be seen as the function of an element called “the

subsumption of other people's viewpoints into the self.” The type of

voluntariness which others may force upon individuals has a slightly

different topology.

However, injury can also be understood in the legal realm. In

tobacco litigation cases in America, tobacco companies are regularly sued

because smoking causes physical injury. The general argument for these

suits is that a person smoked tobacco without being fully made aware of

its addictive nature. They are unable to quit, and when an injury arises, it

is the tobacco companies' responsibility. For this text’s purpose, the

important result is the type of discourse being constructed.

If we take the perspective that ideas on damages and responsibility

are socially constructed, reflecting cultural context, it is not impossible to

trace back most of the harm to an external factor or implicit coercion. The

notion of “implicit coercion by others” can be observed through a wide

spectrum of cases, from subsumption within the self to elements such as

other individuals and cultural values. Thus, the composition of the

awareness of an "injury" is also very diverse.

The ambiguity of the formation of this meaning frequently causes

disputes. However, such disputes create an opportunity to change the legal

meaning of “injury.” Here we turn to an examination of the nuclear plant

accident that happened on March 11, 2011 following the Great East Japan

Earthquake and Tsunami in Fukushima. The legal definition will be

disputed in the midst of many complicated factors. These complications

include the victims’ formation of meaning, the perspectives of the

specialists who have a scientific understanding of technical discourse

regarding these issues, and other technical discourse related to this dispute.

This text will investigate the formation of the meaning of “injury” to the

victims in the nuclear plant accident dispute. First, a discussion of the

theoretical perspective is necessary prior to the specific investigation.

B. Theoretical Framework: Recursive Relation Between Domination and

Resistance

In his theory of practice, Pierre Bourdieu described the recursive

relationship between people’s practices and the restrictive and dominant

structure.3 Just as a game cannot exist without rules, this structure exerts

restrictions and control over practices within the game. Thus, if there is no

structure, there is no game but only chaos. However, at the same time that

a structure provides restrictions, the movements (practices) of the specific

players in the game exhibit improvisation in responses to a situation.

3 PIERRE BORDIEU. OUTLINE OF A THEORY OF PRACTICE 72–87 (1977).


There are infinite varieties of improvisations. Thus, the rules and structure

do not regulate all of the players’ actions and movements. Moreover, the

structure commonly emerges at the same time as these improvisations. The

structure controls the practice, and it is only through the practice that the

self can be established. Additionally, the accumulation of these practices

creates a playing style unique to each individual player. Using Bourdieu's

conceptual framework, a type of habitus may emerge. More importantly,

the diversity of these individual improvisational practices has a recursive

structure tied to the change of the structure itself.

This point is easy to comprehend when looking at language. For

example, we can use words within the permissible range of the linguistic

structure of Japanese or English. This makes it possible to reach a mutual

understanding. In this case, language is the “game” and we must operate

within its rules. As we use individual phrases, the structure of the language

is reaffirmed. However, the specific turns of phrase that we can use are

expressed through infinite improvisational diversity that depends on the

situation. This significant diversity frequently challenges the structure of a

language.

For example, slang used by young people is not originally included

in the rules of usage for a language. If slang is frequently repeated, it can

become commonly used terms. Moreover, words from foreign languages

used by scholars gradually become recognized as common expressions. As

a phrase is practiced repeatedly, the language structure frequently collects

this deviation. In this sense, “correct language” becomes nothing more

than a relative concept. The concept of our “correct language” contains

expressions that people in the past would question. Here, we observe the

process that on the one hand, normal structure and usages at the same time

constrain and construct people’s speech. On the other hand, the structure

and usages are transformed by creative or deviant speech. Thus, structure

and practice change each other through the rules of the structure and the

improvisational diversity of the practice.

Michel de Certeau grasped the inner workings of the recursive

relationship of this structure and practice from a political standpoint.

Certeau classified the deviation from the structure as rebellion to the

explicit and direct rule of the structure. He describes the nature of practice

using the word “tactic”, that is “a tactic is a calculated action determined

by the absence of a proper locus. … The space of a tactic is the space of

the other.”4 This tactic is deployed “on and with a terrain imposed on it

and organized by the law of a foreign power,” 5 and people “must

vigilantly make use of the cracks that particular conjunctions open in the

surveillance of the proprietary powers. It poaches in them. It creates

4 MICHEL DE CERTEAU, THE PRACTICE OF EVERYDAY LIFE 47–58 (1984).

5 Id. at 36.

2015 Wada 199

surprises in them”. 6 He used the metaphor of poaching to describe

resistance to the structure. With this metaphor Certeau appropriately

described the element of resistance that he tried to define, as not overt but

implicit. This was not a mere improvisational practice, but was rather the

political practice of resistance to implicit control. This did not include

explicitly stating objections to the structure. Rather, it is practicing a way

of life that shows resistance not in conflict with the existing framework.

By doing this, it is possible to spur change in the structure and rules.

This text will carry out its investigation from a point of view that

looks at confrontation with the ruling legal discourses. It will focus

specifically on the calculation of reparations for the nuclear plant accident

and the victims’ objections. It will look at the victims’ meaning of

reparations while acknowledging the aforementioned theoretical

framework.

C. Incommensurability and Power - The Meaning of Damages after the

Accident

There are a variety of improvisations in whatever constructed

notion of “injury” exists within the framework of the cultural discourse at

any particular the time. In the same age and culture, there is a narrative

archetype with shared characteristics which exerts a large influence on the

formation of the meaning of “injury.” At the same time, there are not only

individual improvised variations in individual situations; there are also

variations controlled by the members of this culture's habitus.

In the case of the nuclear plant accident, as victims assign meaning

to their painful experiences of losing their homes and separating from their

blood relatives in discourse, they experience their own narrative of pain

and grief. These experiences strengthen that part of the discourse. In

contrast, Tokyo Electric Power Co. Inc. (“TEPCO”) 7 and the nuclear

power specialists understand this tragic narrative as members of society,

but they construct their meaning within a different discourse from the

victims. The discourse that these people construct as their narrative is a

scientific narrative and supported by the structure of technical knowledge.

These differences give rise to confrontations of ideas where

common ground is scarce. For the victims, this event was simply an

affront to their value of irreplaceable health. Through the lens of their

technical expertise, the specialists perceived these health issues as a

manifestation of the possible risks of radioactivity to the human body.

6 Id. at 37.

7 Tokyo Electric Power Co. Inc.(TEPCO) is one of the electric power companies

providing Tokyo and surrounding prefectures with electric power. TEPCO ran the

Fukushima nuclear power plants that suffered a meltdown after the Tsunami. Although

Fukushima prefecture is not technically an area TEPCO covers, the nuclear plants were

placed in Fukushima since its population is comparatively small. Tokyo’s electric power

as well as nearby surrounding area are supported by Fukushima’s nuclear power plants.


Because this is a technical area that is not easily understood, the victims

were still doubtful of this explanation and suspected deception. Therefore,

it was difficult for the victims to immediately accept these technical

explanations. This led to a conflicting formation of the meaning of their

experiences, an example of the incommensurability of different narrative

archetypes.

D. Constructing the Meaning of Damages in Legal Discourse

The law has a characteristic framework that serves as one kind of

technical discourse in the formation of the meaning of “injury” in nuclear

plant accidents. The legal specialists’ narrative concerning the nuclear

plant accident and "injury" is being independently constructed on top of

the tense relationship between the victim's narrative and the specialist's

narrative.

The process of forming the meaning of injury in legal discourse,

damages must be measured. When legally evaluating damages, the truth

must naturally be verified. In this case, the significance of the injury

resulting from the nuclear plant accident will be determined by the

existing legal framework. This legal definition of damages will naturally

diverge from the victims’ version of the damages.

When calculating the emotional damages from the nuclear plant

accident, the Dispute Reconciliation Committee for Nuclear Damage

Compensation8 has said:9

The psychological damages of the people who lived in the

area that was forced to evacuate likely differ from person to

person. However, the residents in the affected area had no

choice but to evacuate their residence or take shelter

indoors. This is clearly a real disturbance to their normal

quiet lives. Furthermore, in general the evacuation time

period was quite long, and it has been acknowledged that

many people faced harsh conditions during this evacuation.

Based on this, they stated that “compensation in keeping with this was

befitting.” They then stated that: 10

8 This is a committee temporarily established in the Ministry of Science and

Education when nuclear accident happens based on article 18 of Nuclear Accident

Damages Compensation Act. On April 11, 2011 after the Fukushima Nuclear accident

this committee was established. Before the Fukushima accident, the committee was once

established in 1999, when the Tokaimura melt down accident happened.

9 “Interim Guideline for Evaluation of Range of Damages Caused by TEPCO

Fukushima No.1 and No.2 Nuclear Power Plants Accident.” Issued by Dispute

Reconciliation Committee for Nuclear Damage Compensation Aug. 5, 2011 p.17

(translated by author)

10 Id. at (translated by author).

2015 Wada 201

[I]n calculating the amount of damages, consideration

should be taken that this incident is not one of simple

emotional damage like that ordinarily accompanying

wounds. Yet, upon referencing the consolation money given

as compensation for automobile damages from liability

insurance (4,200 yen per day and 126,000 yen per month)

and giving consideration to the increase in cost of living

and the large amount of psychological pain that was

suffered as mentioned above, it has been determined that a

standard of 100,000 yen per month is reasonable...It is

difficult to deny that evacuation in the initial shelters over a

long period of time created relatively harsh living

conditions compared with other types of lodging. The

living environment, inconvenience and guarantee of

privacy were all issues, and thus, this point should be kept

in mind as an additional factor for the amount of damages.

Thus, 120,000 yen will be the standard monthly amount for

only the time period spent living in evacuation shelters.

This type of logic made the victims feel extremely uncomfortable.

They were especially uncomfortable with the evaluation’s reference to the

logic of a traffic accident. Although the evaluated amount of compensation

money is ridiculously small for victims, the logical explanation, which left

out much consideration of emotional wounds, was more upsetting than the

amount of money itself. A traffic accident is completely different their

experiences as a result of a nuclear plant accident. Even if this type of

evaluation is shared by legal specialists as their legal and just narrative, it

is perceived and criticized by the victims as an incommensurable

narrative. The legal logic of generalization and abstraction of concrete

elements of wounded feelings are alien ways of thinking for every victim

experiencing his or her own injury.

E. Function of Law: Resolving Incommensurability or Oppression by

Power

Generally speaking, the parties want to resolve or eliminate

disputes. It’s safe to assume that the conflict between the victims' and the

specialists' narrative will not end. In this situation, the law acts as a

mechanism to reach a settlement. In the legal discourse of the judicial

decision, the reconciliation was based on the impact of a judicial decision

or the decision reached by the Dispute Reconciliation Committee for

Nuclear Damage Compensation. This reconciliation should come from the

position of an “outsider.” In turn, the reconciliation would not be a

narrative on the side of the victims or specialists. Rather, it is suggested as

an “objective and just” narrative in order to fully realize its goal of dispute

resolution, even though both parties actually do not fully accept the

agreement proposed. In this sense, the law is an attempt to create a certain


amount of commensurability in incommensurable situations. The law is

based on an independently constructed narrative, and it sorts out the facts

concerning damages and orders monetary compensation.

However, when victim’s incommensurable “injury” narrative is put

into the legal sphere, the more powerful legal narrative controls and is

used as a mechanism for oppression. Rather than protecting the notion of

justice for the concerned persons, the law denies the concerned person's

narrative of justice. The intellectual system of law imposes a limited

narrative of justice. Thus, many of the concerned persons cannot avoid

disappointment. This truly appears to be the typical function of the

discourse of power.

When the legal narrative overwhelms the other narrative such as

the victim’s everyday narrative or scientist’s professional narrative, they

may become compatible to some degree. However, this fabricated

compatibility is politically constructed for an incommensurable world.

Both the victims and the specialists for the moment are caught up in the

dominant legal narrative with little regard to their own internal narrative.

As a result, this is considered to be a resolution. Regardless of the legal

evaluations and judgments, the concerned parties can only accept them

and continue on with their endless dialogue with their own internal

narratives. The pain caused by the nuclear plant accident will not end for

the concerned parties, and a complete solution is not possible. Therefore, it

is necessary to see the law as a grand myth of commensurability that in

actuality may function as an oppressive mechanism.

III. THE MEANING OF DAMAGES FOR THE VICTIMS: THE RESULTS OF THE

SURVEY

Namie is a long and narrow small town in Fukushima prefecture.

The eastern part of the town contains a fishing village with a town hall

located 4 km north of the Fukushima Nuclear Plant. A railroad and

national highway pass through the town, along its Pacific coast. There are

also several villages in the mountainous Central and Western area of the

town. Namie’s population before the disaster was slightly over 20,000,

with a population engaged in a variety of occupations. Namie was a

typical peaceful Japanese small town except for its location near the

nuclear plant.11

11 The map is quoted from an article in Fukushima Minyu News Paper, Jan. 24th,

2011. Although only available in Japanese, fundamental demographic information and a

more a detailed description of the town can be found at the Namie-machi Official Web

Site. http://www.town.namie.fukushima.jp/. The complete results of our survey and other

related reports can also be found at

http://www.town.namie.fukushima.jp/site/shinsai/list16-108.html.

2015 Wada 203

Figure 1: Map of Namie Town showing areas affected by radiation. Pink indicates areas

currently uninhabitable; yellow shows area available for limited visits; green shows area

that may be cleared for habitation in near future. Power plant is located at lower right of

map. From Fukushima Minyu Newspaper, Jan. 24, 2013.

On March 11th, 2011, a huge earthquake and Tsunami hit

Northeastern Japan, including Namie. As the majority of the town of

Namie is not coastal, the tsunami damage was comparatively less than

other nearby towns, some of which were completely destroyed.

Nevertheless, 358 residents were killed by the disaster and 614

constructions were partially or entirely destroyed.

During the disaster, the Fukushima Nuclear Plants lost control of

their cooling systems because the system was damaged by the Tsunami,

and the plants melted down. Within a day, people living within 20 km of

the nuclear plant, including the eastern half of Namie town, were ordered

to evacuate. As a result, 8,000 Namie residents moved out of town and the

town government was tentatively moved to Nihonmatsu city,

approximately 50 km distance from Namie. On April 11th, the area within

30 km of the nuclear plant was also officially included in the evacuation

area, and almost all of the population, including the Western villages, was

moved to other towns. Namie was an abandoned ghost town at this point.


Figure 1: Map showing the evacuation area surrounding the Fukushima Nuclear Plants

The decontamination process takes a long time and many people

do not return home. The majority of the people of Namie are still forced to

live outside the decontamination area. Contaminated areas are divided into

three categories by the Japanese government: Area preparing for the lifting

of the evacuation order (nearly finishing decontamination, but still limited

to day-return visit), Area of restricted living (one day temporally visit is

allowed) and Area impossible to return (totally evacuated and never enter).

Most of Namie is in the category, Area impossible to return, and the rest of

area is in the first two categories. As a result, Namie is virtually empty.12

After the nuclear plant accident, efforts were made by Waseda Law

School to support the residents of the village of Namie. In particular, we

focused on helping the village bring compensation cases to the Dispute

Resolution Center for Nuclear Radiation Damages, an alternative dispute

resolution institution established by the government on April 11th, 2011,

based on article 18 of the Nuclear Accident Damages Compensation Act.

Although approximately 15,000 victims in other towns brought their cases

to the ADR by the end of March, 2015, Waseda Law School is helping

11,602 residents in Namie to bring their cases simultaneously. This

strategy was used to mobilize media interest and thus nation-wide public

opinion on this matter.

In the process of preparing to bring the case to the ADR, we

decided it was indispensable for us to make a survey to understand the

12 See Figure 2. The map is cited from Shinji Tokonami, Masahiro Hosoda,

Suminori Akiba, Atsuyuki Sorimachi, Ikuo Kashiwakura & Mikhail Balonov “Thyroid

doses for evacuees from the Fukushima nuclear accident” Scientific Reports 2, 12 July

2012.

2015 Wada 205

emotional distress and anguish the nuclear power accident caused for the

residents of Namie. Surveys were distributed to all the residents of Namie

on April 15th, 2013 (10,109 households, totaling 21,463 people) in order to

assess the full extent of the harm. 13 The cooperation of Namie was

received and responses were requested from all of the villagers over the

age of 18. There were 9,384 valid responses from approximately 15,000

residents over 18 years old received by the primary deadline. The town

government’s proposition to bring town people’s individual cases to ADR

simultaneously was sent at the same time, which likely contributed to the

high response to our survey. We will use these results to clarify the

meaning of the pain and injury that was experienced by the victims.

The injuries to the town as a whole caused by the Tohoku

earthquake and the nuclear plant accident were greater than the sum of the

damages that occurred on an individual or household level. The damages

destroyed the community itself, and caused the loss of not only a place to

live but also the loss of all associated social human relationships. These

community damages must be treated as large-scale fundamental damages

that we have not seen up to this point. While keeping this point in mind,

we will summarize the true state of these damages, what type of

recognition the victims had, and the survey results.

A. Breakup of Family

First, we will investigate the change in household composition by

examining the change in the number of people in the household. As Namie

is a traditional rural small town, the number of family members per

household tends to be large, with three generations or more typically

living together.

Figure 2: Number of family members per household before and after the nuclear power

accident.

13 A copy of the Questionnaire was sent to each adult in the household.

714

2067 21181670

1137776

438 231

1469

3220

2149

1183

576281 103 58

0

1000

2000

3000

4000

1 2 3 4 5 6 7 8

The number of family members

Before Accident After Accident


As seen in Figure 3, the number of one- and two-person

households rose considerably, and the number of three person households

rose slightly, after the disaster while the number of households with four

or more people noticeably decreased. The causes of this were twofold: 1)

it was physically difficult for all members of a family to live together in

the newly provided residences (such as the temporary residences); and 2) a

portion of the family was forced to live in another area for work.14 One

point that is worth special note is the rise in households consisting of a

single person aged 60 or older. There were 459 such households prior to

the earthquake, and 661 after the disaster. In addition to the psychological

pain of becoming isolated from the family one has lived with, the elderly

found themselves in a position where their families could not easily look

after them as a result of the breakup of families. In the column provided

for open-ended responses, the expressions “I felt like my ties with my

family came apart” and “we're scattered” were frequently seen.15

Figure 3: Number of rooms per household before and after the accident.

14 After the accidents government prepared makeshift residence in surrounding

prefectures, though each has only a couple of small rooms and it is hard for all family

members to live together there. Open-ended responses say “there is no privacy” and “I

wanted to enter Music College. But we have no space to put piano here. So, I gave up my

career as pianist or piano teacher.”

15 For example, the father moved to another city to find a job and the rest of the

family stayed in makeshift residences in Fukushima. In another case, high school students

lived in a relative’s home, as the makeshift residence did not have enough room and is

distant from the school preferred.

64 230734 756

10801301 1311

1177

680

1620

683

2957 3037

1120

564 241 121 60 31 470

500

1000

1500

2000

2500

3000

3500

1 room 2 rooms 3 rooms 4 rooms 5 rooms 6 rooms 7 rooms 8 rooms 9 rooms More

Number of Rooms per Household


2015 Wada 207

This breakup of households was also tied to a deterioration in

quality of life. Figure 4 shows the number of rooms per residence before

and after the earthquake disaster. We can clearly see that the number of

rooms dropped sharply. This is only one indicator, but it further

demonstrates the breakup of families.

At the same time, the open-ended response column also

demonstrates that villagers experienced a subjective loss of quality of life.

This column also has descriptions of the pain from not having privacy, and

of the large influence that the changes have had on the lives of the victims.

This is illustrated by the following quote, “I used to practice every day at

home to go to a music college in the future, but after the evacuation, there

was no room for the piano. So because I cannot practice, making my

dream a reality became much further away.”

B. Income Decrease and Difficulties in Living

Figure 4: Workers in fields before and after the accident.

Second, we will examine household income and expenditures

before and after the earthquake disaster. As seen in Figure 5, almost all

occupations saw a reduction in the number of employees. Physically

travelling to work became difficult for many residents who were forced to

evacuate because of the nuclear plant accident. While each of the

displaced citizens undertook great effort to find new employment at their

evacuation location, it was often difficult to find jobs that used their

existing expertise, or to find alternate jobs that they found worthwhile.

Thus, this disaster also caused the loss of workplaces, which are one place

where human relationships are formed. Moreover, as the data shows, there

was a sudden rise in the number of people classified as "unemployed.” In

1061 10411135

400

85 31177

1287

297

1059

630

18936

754

14658 10

118

578

242

11841308

0

200

400

600

800

1000

1200

1400

Change of Occupation



particular, 16 These employment changes were tied to a reduction in

household income.

In the ADR process, damages to houses or household goods and

physical injury are calculated on an individual basis. However,

compensation for pain and suffering can be common among victims of

earthquakes, Tsunami, and nuclear power plant accidents. The ADR

decided the amount of damages for pain and suffering is 100,000 yen per

person per month. 17 Actually, this amount can be the only or main

resource for living for many victims.

Figure 5: Income before and after accident. Post-accident amounts exclude the 100,000

yen currently provided as emotional damages compensation.

As Figure 6 demonstrates, a reduction in income is seen for all

income levels; pre-earthquake disaster income was not maintained at any

income bracket. The earthquake disaster's influence on worsening income

can be seen everywhere, but particularly in the considerable increase in the

number of people earning less than 10,000 yen per month – essentially no

income – and living in poverty. It is likely that the group of people with no

16 For example, a person who was working as a specialist for a electric facility

for fishing equipment lost his job because the company itself was destroyed by the

Tsunami, and is now engaged as a casual construction worker that needs no special

knowledge. For him not only loss of income, but also loss of use of his specialty are

causes of anguish.

17 “Interim Guideline for Evaluation of Range of Damages Caused by TEPCO

Fukushima No.1 and No.2 Nuclear Power Plants Accident.” Issued by Dispute

Reconciliation Committee for Nuclear Damage Compensation Aug. 5, 2011 p.19

(translated by author)

444

1256

19881820

1060

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758

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0

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Changes In Monthly Income (USD)

Befire accident After accident

2015 Wada 209

income are living solely on the 100,000 yen that is being provided as

compensation for emotional damages. The number of people in this

category has risen to 1,224, so this must be considered a large problem.

In contrast to this, Figure 7 shows little change in expenditure. As

Namie people’s income, USD 24,000 per year was comparatively lower

than Japanese average income, USD 40,000 per year, their expenditure

could also be modest.18 It can be seen from this figure that there was little

change in expenditure from before to after the earthquake disaster. The

reason for this is that a certain level of expenditure is necessary regardless

of any change in income. There is a limit to the amount that it is possible

to economize, and new expenditures related to the separation of the family

become necessary, offsetting any economizing. It has been inferred that

resultantly the decrease in expenditure halts at a certain level.19 Moreover,

even if there is expenditure that can be controlled, there must also be a

striking increase of expenditure that accompanies living in evacuation

shelters. Thus, it can easily be surmised that the burden on the household

economy has only worsened.

Figure 7: Summary of the changes in expenditure from before to after the earthquake

disaster

18 Based on data from the National Tax Agency, Statistical Survey on Wage

2013. Average Annual Income of Namie people was USD 24,000 in 2013.

19 For example, a response to the Open-question says, “As we have to pay for

medical expense for my wife’s depression caused by the accident and send money to my

kids living in another town, I stop drinking beer and eating out. It is of course impossible

to have a car and have to pay expensive taxi fare to go hospital. Nevertheless, our living

standard became very low, money go out as before”.

238

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1542

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100-1000 1001-2000 2001-3000 3001-4000 4001-5000 5001more

Changes in Monthly Expenditure

(USD)

Befire accident After accident


In any case, seeing no large change in expenditures while seeing a

trend in the decrease of income makes us wonder about the deterioration

in the general standard of living and the harsh living conditions of the

lower income class.

Figure 8 is a breakdown of the change in individual income by age.

Looking at this in broad terms, as the age range increases, the degree of

income becomes larger. The individual income of those over the age of 70

was originally limited prior to the earthquake disaster because of advanced

age. Thus, the degree of income decrease for this group is lower than those

in their 60s. Moreover, the fact that the group who was less than 20 years

old had a large portion of people whose income increased means a group

of people were forced to find employment or get a new part-time job

because of the change in the family structure. From this data one can also

see the fact that the relatively older group of people lives in poverty

because they cannot find new employment or income and are restricted to

living off of compensation.

Figure 8: Change in income by age.

C. Uneasiness and Anguish

Next, we will investigate the specific factors that caused Namie

citizens to report strong emotional anguish. In the survey, the questions

about anguish were grouped into six categories: (1) “emotional damages

from being exposed to radiation;” (2) “emotional damages from the

destruction of the community;” (3) “emotional damages from the loss of

normalcy in everyday life;” (4) “emotional damages from not being able

to return home;” (5) “emotional damages from the inconveniences of

living in evacuation shelters;” and (6) “emotional damages from the

37.5

53.5

45.7

42.2

41.8

35

15.3

53.8

30.9

39.8

42

36.1

33.8

42.6

8.6

15.6

14.5

15.8

22.1

33.8

42.6

0 20 40 60 80 100 120

71more

61-70

51-60

41-50

31-40

21-30

Under 20

Change of Income by Age

Decrease No change Increase

2015 Wada 211

uneasiness of not being able to predict the future.” Questions were asked

about each of these classifications, with five possible ratings. Not

everything can be expressed about all of the individuals, so several

characteristic people will be used as examples.

First, there were many responses that complained of the anguish of

“feeling fear and unease at not being able to see radioactivity” and

“feeling uneasiness and anguish due to being exposed to a low level

radiation” for the first category of emotional damages from being exposed

to radiation. These results suggest that fears about the influence of

radioactivity on the body, fears about not being able to be completely

clean, and fears tied to distrust of decontamination are all still strong.

Figure 9: Fear from not being able to see radioactivity.

Figure 10: Fear of radiation exposure.

The results concerning “emotional damages from the destruction of

the regional community” showed anguish over the participation in the

community at the evacuation site. However, more than this, we also see a

substantial concern about the future, the loss of human relationships and

220 244927

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6309

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6000

7000

1 2 3 4 5

Grade of fear at at not being able to see radioactivity

weak<--->strong

307 3221208

1653

5535

0

2000

4000

6000

1 2 3 4 5

Grade of feardue to being exposed to a low level

radiation

weak<--->strong


the destruction of the citizens’ own communities. There was also a very

high level of anguish about whether the Namie community could truly

recover.

Figure 61: Fear regarding ability of community to recover.

With regards to Category 3, emotional damages from the loss of

normalcy in everyday life, questions were asked about the anguish relating

to the breakup of the family and about the anguish related to the loss of

work and sense of life being worthwhile. The responses to almost all of

the items inquired about demonstrated a high degree of emotional distress

and anguish.

Figure 7: Emotional harm from loss of job.

Five questions were asked regarding emotional damages from not

being able to return home: (1) “regret about not being able to live in the

house that had for a long time been lived in and grown attached to;” (2)

“anguish about being unable to have memorial service for the dead or

about being unable to visit the graves of ancestors;” (3) “anguish about

324 400

1436 1731

5211

0

1000

2000

3000

4000

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6000

1 2 3 4 5

Grade of anguish about whether the Namie community could truly

recover

weak<--->strong

441 443

11701504

5509

0

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3000

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5000

6000

1 2 3 4 5

Grade of anguish caused by losing jobs

weak<--->strong

2015 Wada 213

seeing the house, garden, plots of land, livestock and rice fields falling

into ruin but being unable to do anything;” (4) “anguish about being

worried about the neighborhood of evacuation site home and being unable

to relax;” and (5) “anguish about not being able to have privacy from the

family because the evacuation site house was small.” The level of anguish

over not being able to visit graves, loss of the familiar home, and being

unable to maintain things falling into ruin was higher than the anguish

resulting from privacy restrictions and the current state of relationships

with people in the neighborhood. This allows us to infer that mental

anguish about irreplaceable things that were lost when the living space

was lost was extremely strong. Furthermore, the anguish due to not being

able to return to one's home showed very strong values even when

compared with other sources of anguish. This allows us to surmise that

anguish felt from the uneasiness about being attached to Namie and not

being able to return there was extremely strong.

Figure 83: Emotional distress resulting from loss of homes.

Figure 94: Emotional harm from watching former homes, lands, and livestock deteriorate.

177 166 578 878

7418

0

2000

4000

6000

8000

1 2 3 4 5

Grade of regret about not being able to live in the house that had

for a long time been lived in and grown attached to

weak<--->strong

282 217 703 855

7081

0

2000

4000

6000

8000

1 2 3 4 5

Grade of anguish about seeing the house, garden, plots of land,

livestock and rice fields falling into ruin but being unable to do

anything

weak<--->strong


A variety of questions were asked regarding the emotional

damages from the inconvenience of living in evacuation shelters.

Questions were asked about the current living environment and the mental

anguish caused by inconveniences while living. The following items were

asked about: (1) “the inferiority of the living environment due to things

like a small temporary dwelling, large differences in the level of heat and

cold and moisture due to dew;” (2) “the poor living environment due to

having a loud neighborhood, having stairs that go up and down and having

the evacuation site (rental houses) be small;” (3) “the fatigue due to the

inconvenience of commuting to school or work because of a long distance

or time;” and (4) “the fatigue or money spent on transit (taxis etc.).” The

anguish suffered from the current living situation was relatively low

compared with that caused by the loss of the previous living conditions.

However, the most frequent response on any of the questions was still the

maximum anguish level of 5. Thus, this shows that there is strong mental

anguish regarding the present living conditions and environment.

Furthermore, when looking at the open ended responses, we see that

children are being bullied by children at the new school that they were

forced to attend, and being are viewed with prejudice because they are

perceived as receiving a lot of reparations. Other situations that cannot be

ignored are also observed, such as vandalizing a car by residents of

another town where makeshift houses for some Namie people are located.

Thus, it has become apparent that these citizens are living while facing

many difficulties and sources of anguish.

Figure 10: Emotional harm resulting from inferiority of temporary living environment.

Finally, questions were asked regarding the emotional damages

from anxieties about not being able to predict the future: (1) “uneasiness

about when returning home will be possible or if returning home will be

possible;” (2) “the uneasiness about if it will be possible to have a fun life

524 349

917 1036

3945

0

1000

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3000

4000

5000

1 2 3 4 5

Grade of anguish caused by the inferiority of the living environment

due to things like a small temporary dwelling

weak<--->strong

2015 Wada 215

either by returning to Namie or by supporting the neighbors at the

evacuation site;” (3) “the uneasiness about if decontamination will be able

to be carried out to a level where it is safe to live in the entire town and

have quality soil and water;” (4) “the uneasiness about if another accident

will happen that decommissions a nuclear power plant;” (5) “the

uneasiness about the safety and construction of interim storage facilities

and final processing plants;” (6) “the uneasiness about if sufficient

indemnities will be paid to be able to re-construct a life at the evacuation

site;” (7) “the uneasiness about how long they will have to or be able to

live in their temporary dwellings;” (8) “the anguish caused by worries

about where they will enter school, go to university or find employment;”

(9) “the anguish caused by worries about where their children and

grandchildren will enter school, go to university or find employment;” and

(10) “the anguish caused by feelings of bewilderment about what to do

hereafter because their life plans have gone awry.” The anguish over the

“anxieties about not being able to predict the future” showed higher levels

of uneasiness for all but one portion when compared with every other item

questioned. Many of the citizens expressed their extremely strong anguish

and uneasiness about their future life plan and their safety.

Figure 116: Emotional distress caused by future uncertaities.

D. Intention to Return

Finally, let's examine the intention to return to Namie. Figure 17

shows the questions about returning:

210 183589

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6000

7000

8000

1 2 3 4 5

Grade of anxieties about not being able to predict the future

weak<--->strong


Figure 17: Intent to return.

Only 722 people - a mere 7.9% - stated that they would “return

after the date set by the government for decontamination had elapsed.” In

addition, 827 people (9.1%) responded that they would “return the entire

when the first challenge of neighborhood was completed no matter how

long decontamination took.” On the other hand, 3,163 people (34.8%) said

they would “never return.” Moreover, 4,145 people (45.6%) said that they

“did not know.” This shows that many of the citizens have a lot of

uneasiness about national announcements, the possibility of

decontamination, and the possibility of being impacted by radioactivity. It

is also clear that they continue to feel anxiety about their family's health,

their future plans, their family's lives until they are able to return, and

whether or not the conditions necessary for a community to function will

be restored. Furthermore, the fact that one third of the citizens declared

that they would “never return” signifies the difficulties that accompany the

recovery of a village's function as a community, even if decontamination

were successful.

The fact that many of the responses about returning were “I don't

know” rather than “I will return once the decontamination is complete”

might be considered an expression of a number of different doubts. The

doubts about the possibility of removing the radioactive contamination,

the doubts about the possibility of the community recovering, and the

anguish and worry about contrast between the attachment to Namie as the

place they want to live long-term and the future plans for the family's lives

and health may all play a role.

When the intent to return is viewed by age, a trend is clear.

Younger people were more likely to indicate that they would “never

722 827

3163

4145

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Return if

decontamination

finish by the date

government set

Return when

decontamination

finished nevertheless

how long time it

reqires

Never return D.K.

Intention of Return to Namie

2015 Wada 217

return” to Namie. Conversely, older respondents were much more likely to

indicate an intent to return to the community.

Figure 12: Intent to return by age.

Figure 19 is the response to a question requesting the reason for

not returning. Two possible answer choices were provided: “anxieties

about safety after decontamination” or “the inability to go back to a former

life even if you returned.” The number of respondents that gave the reason

the “inability to go back to a former life” greatly exceeded those who

answered “anxieties about decontamination.” The citizens did not use the

simple logic that if decontamination was completed they would be able to

return; rather, it seems that people believe that the recovery of the

4 19 24 46 112201

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Under 20 20-29 30-39 40-49 50-59 60-69 Over 70

Intention of Return to Namie by Age

D.K.

Never return

Return when decontamination finished nevertheless how long time it reqires

Return if decontamination finish by the date government set


environment and community itself is not possible after this accident. This

seems to be much of the weight of people's anxieties.

Figure 139: Reason for not returning. “Anxieties about decontamination” on left;

“inability to return to former life” on right.

As was made clear above, the assessment of damage made by the

Dispute Reconciliation Committee for Nuclear Damage Compensation is

very different from the anxieties and anguish that are experienced by the

victims. Based on the victims’ perceptions, the existing standard of

emotional damages from a traffic accident without physical injury is not

appropriate as a basis for determining emotional harm caused by an

unprecedented nuclear plant accident. Even if the points of having a

sudden change in lifestyle and facing suffering are the same, the

community support to alleviate anguish does not exist in the case of a

nuclear plant accident the way it does for a traffic accident. The situation

where a place to live and living environment are completely lost and the

possibility of their recovery is uncertain is very different from any

traditional type of accident where an illegal act was the problem. The

following section will suggest a direction to take to fill in this gap.

IV. TOWARD RESOLUTION THROUGH SYMPATHETIC CONFLICT

TRANSFORMATION

As we have seen above, there are large differences between the

archetype narratives that the victims of the disaster use to determine the

meaning of “injury” in the context of the nuclear plant accident and those

used by scientific and legal specialists. It is difficult for victims who do

not have relevant expertise to simply accept the technical information

provided by the specialists. It does not matter if the specialists give a

sincere explanation and provide information based upon a technical

examination concerning the injuries suffered, or even if a just amount of

reparations were calculated based on legal requirements, the victims

would continue within their “narrative of loss and anxiety.” The victims’

narrative is incommensurable to anyone not personally involved in their

injury. The victims would treat the words of these specialists skeptically,

2015 Wada 219

and they would incorporate these words into their narrative in their own

way.

The specialists cannot share the anxieties and concerns that the

victims have, but which the victims cannot convey. Nevertheless, the

specialists attempt to ask the victims for their understanding from the

viewpoint of the technical discourse. The “legally just narrative” is at odds

with the “narrative of loss and anxiety” that the victims experience every

day, and the more each of these narratives is espoused, the more the gap

between them widens. The narrative archetypes that acted as the rules of

the original game do not coincide, and the experience of “loss” is

unevenly distributed. There is an incommensurable rift in the perception

of loss that cannot be bridged no matter how far the other party goes.

However, monetary compensation is necessary in the midst of an

unstable life, and victims need to ask for compensation. Victims are facing

the contradiction that on the one hand there is strong resistance against

having their suffering calculated in monetary terms, while on the other

hand they actually need some monetary support. The incommensurability

of these narratives is included within the internal words of the individuals

who originally created these narratives. This could be called internal

incommensurability.

In the face of this incommensurability, it seems particularly

necessary to have a dialog to promote a mutual change in awareness. The

interactive process involved in providing monetary compensation must not

be a mere exchange of information, where suggestions are simply made

for a certain amount of money to go from A to B, and for people to either

accept or refuse the suggestion. What is important in the process of

dispute resolution is not the quantity of compensation. Rather, there must

be adequate expression of the victim's experience by him or herself, and

an interactive process that works to convince the victims that includes the

validity of the legal framework that is the basis for the calculation of

compensation.

If there is not a place for a dialog where sympathy can be

expressed, there will be criticism from the victims no matter what type of

reparations are given. This dialogue must not only be established for the

victims by TEPCO, but also by the legal specialists who work at the

organizations for conflict resolution for victims.

For the victims, the explanations of the specialists should include a

variety of elements such as the way that a place for interaction is

established, and a gesture of sympathy. If this could be attained, these

elements could be part of the narrative of the explanation of reparations

and the accident or the narrative of sympathetic legal justice. These

narratives provide hints at forming and rewriting the meaning of injury

within the self and forming a new definition. One's own narrative does not

only change based on what someone else says. One also constructs “what


the other person has said” to integrate it into one’s own narrative in a way

that has no contradictions.

Thus, if in this fashion the “narrative of the place of interaction”

with the other party is newly and actively constructed, the

incomprehensibility of the results of the amount of compensation for

damages will be overcome. This provides a hint as to how to

sympathetically overcome the incommensurability that surrounds the

meaning of damages. In this sense, it seems essential to establish a process

for not only TEPCO, but also for the specialists involved with the ADR

system, such as the Atomic Dispute Committee, to sincerely face the

victims of the nuclear plant accident.

Moreover, the lawyers assisting the victims should not only be

caught up with the goal of getting an increased amount of reparations, but

should also listen to the victims' concerns. It is essential for them to

understand that they are the interface that mediates the “legal meaning of

damages” and “the meaning of injury.”

Documents

Rethinking the Meaning of Damages and Disaster - …blog.hawaii.edu/aplpj/files/2016/01/APLPJ_16.2_Wada.pdf · 2016. 1. 25. · Rethinking the Meaning of Damages and Disaster - Incommensurability