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Japanese legal education system undergoing radical transformation

Mark Reutter, Business & Law Editor
217-333-0568; mreutter@illinois.edu

11/13/03

CHAMPAIGN, Ill. — Japan is undergoing a quiet revolution in legal education, instituting "American-style" law schools with the aim of producing more lawyers for business, government and private practice.

Starting this month, the Japanese Ministry of Education will issue charters for the first three-year graduate law schools, "a rare development in any country outside the Anglo-American tradition," said Tom Ginsburg, a law professor at the University of Illinois at Urbana-Champaign. The first chartered schools are scheduled to begin classes in April.

Ginsburg, director of the Program in Asian Law, Politics and Society in the College of Law, said that improved legal training is another step in the transformation of Asian countries toward market-oriented and rights-based societies. The Japanese have long prided themselves on restricting the number and activities of lawyers as part of a system directed by powerful government ministries. The United States has about 20 times as many lawyers as Japan per capita. Lawyers in Japan are almost never in private practice nor are their services available to regular citizens.

In a paper to be delivered before the Association of American Law Schools, Ginsburg describes the transformation of legal education in Japan as indicative of the general movement toward "rule of law" in other Asian countries, such as South Korea, Taiwan and even communist China.

"Looking back to the 1980s, Japan was seen to have developed an alternative model of capitalism, based on an activist state rather than the free market orthodoxy of Anglo-American capitalism. This model was seen as exportable, perhaps even to the U.S.," he wrote.

"A key feature of this model was that it seemed to be a system of capitalism without lawyers. Bar passage in Japan was notoriously low, and practicing lawyers did not play the same prominent role in business and government as they do here. Commentators, including Derek Bok, then-president of Harvard University, suggested that if only our best graduates became engineers like the Japanese rather than lawyers, we would be better off."

One outgrowth of Japan’s decade-long economic malaise, according to Ginsburg, is the idea that law is part of the solution for revival. "Rather than focus on how the U.S. has too many lawyers, the issue today is how Japan and other countries of northeast Asia can produce more lawyers. Legal education is at the center of the debate over the role of law in ordering society and revitalizing national institutions."

Up until now, legal education in Japan was primarily taught to undergraduate students and aimed at providing generalist training rather than specialized education designed to produce practicing lawyers. "At the center of the Japanese system was the undergraduate law faculty at Tokyo University, which produced the majority of elite bureaucrats as well as leaders in law, finance and business," Ginsburg said.

The bar exam in Japan restricted all but a very few who completed undergraduate education from becoming lawyers. "Relatively few legal graduates would try to pass the bar, and a very small proportion of those would actually succeed. The bar pass rates fluctuated between 2 and 3 percent in Japan for most of the post-World War II period," Ginsburg said. This compares with 70 percent passage for bar takers in Illinois who have completed the three years of graduate legal training.

For the few that passed the Japanese bar exam (traditionally no more than 500 persons a year), a two-year training program would begin under the supervision of the Japanese Supreme Court. The future lawyers would train together, socialize together, and then be distributed into the work force, typically in government ministries and large corporations.

"There were many implications of this model of restricted access," Ginsburg said. "It was very difficult to obtain legal services in Japan, and much of the supposed non-litigiousness of the Japanese can be attributed to the lack of the ability to find a lawyer if one was needed." Furthermore, most lawyers were concentrated in the big cities, leaving residents in rural districts without access to legal advice or redress.

Starting in the late 1980s, pressure mounted to change the system. It came from several sources, according to Ginsburg. The Supreme Court and Ministry of Justice wanted to increase the number of judges and prosecutors, and big business complained about bottlenecks in the legal system. As the economy declined, more legal disputes emerged among businessmen, and deregulation reduced the government’s grip over private-party transactions.

"When business is embedded in a network of dense relationships among buyers, suppliers, creditors, employers, and employees – as was traditionally true in Japan in the past – disputes could be dealt with informally, or suppressed," Ginsburg said.

"The shrinking pie – or at least less rapidly expanding pie – seems to have frayed these social ties and led to more disputes. All of these developments reflected a sense that the institutions that had promoted high growth since the 1950s were no longer able to function in the era of economic decline, and trust in the government as a kind of steward of the economy disappeared."

In early 1990s, Japan began to expand the number of bar passers from 500 to the current level of 1,000 a year. "Nevertheless, the approach was still one of setting a quota and allowing only the top exam takers up to a certain number to pass. Passage was not a matter of setting a bar or a standard, which anyone can meet, as in the U.S.," Ginsburg noted.

The movement to institute three-year law school training emerged first in Korea in 1995. A proposal for law schools was embedded in a broader program of judicial reform, but it was the element that became the most controversial. Opponents seized on the "American-style" nature of the institution and sought to block the proposal.

The idea of graduate law schools came later in Japan, but developed quickly. A key juncture for legal education was the convening of the Justice System Reform Council in 1999. After two years of deliberations, the council called for an expansion in the number of judges and prosecutors as part of a transition towards a "law-governed society."

Especially noteworthy was the proposal for law schools to train professionals. "Even before the final report called for graduate law schools, law faculties had begun to develop plans, and momentum developed rapidly for inclusion of the plan in the final report of the council," Ginsburg said. "A general concept of a new law school quickly steamrolled into a massive effort by private actors, virtually forcing the council to push for realization of the plan."

After legislation was passed by the Diet in December 2002, existing law faculties submitted plans for the new law schools last July and charters are to be granted this month.