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Law schools come under friendly fire

by Colin P.A. Jones

With its first crop of graduates just entering the legal profession, Japan’s new law school system is in trouble. The schools, most of which opened their doors in 2004, are already struggling with the mismatch between the number of law students, which is unregulated, and the number of people who are allowed to pass the bar exam, which is set by the government at an artificially low number. As a result, the most recent pass rate was about 40 percent, a figure that will continue to drop as more graduates and repeat takers compete for a fixed number of slots — an unattractive situation for both existing and prospective students alike. More recently, the system has come under fire from a new quarter: Justice Minister (and former Minister of Education) Kunio Hatoyama and a number of regional bar associations.

In an article in Shukan Asahi magazine last fall, Hatoyama attacked the law schools’ very raison d’etre: increasing the number of lawyers who enter the legal profession (from a paltry 1,500 per year now to 3,000 by 2010). On Jan. 25, the Ministry of Justice indicated it was going to revisit this number, including the possibility of lowering the number of people who are allowed to pass the bar exam. If this happens it will be a betrayal by regulatory fiat of some of the fundamental assumptions and expectations of law students and educators across the country.

Hatoyama’s principal concern seems to be that more lawyers will mean more lawsuits and that Japan will become a “litigation society” like the United States. That the man who among other things is effectively the head of Japan’s prosecutorial agency is calling to limit the number of people who can act as defense lawyers does not seem to have raised any eyebrows. Indeed, several regional bar associations have announced that they agree with him. In doing so, the lawyers raise valid issues about the very premise behind the law school system — that Japan even needs more lawyers — and the almost mindless process by which the current target of 3,000 new lawyers per year was arrived at (a comparison to the number of lawyers in other countries, with France being given particular weight — though without any real explanation as to why — as a comparative).

That this criticism has originated from regional bar associations rather than those in Tokyo or Osaka is not surprising. Lawyers outside of such business centers are already complaining that there is not enough business for them even without the new competition from law school graduates. The average Japanese person apparently is not interested in litigation or whatever other services their friendly neighborhood lawyer has to offer. As noted in a resolution by the Kanazawa Bar Association issued last fall, the current trend shows litigation to be decreasing rather than increasing.

Unfortunately, in addition to these very valid criticisms, at least some of the bar association comments veer off into self-interest and self-importance, both justified by an alternative form of logic that only applies to protected industries. The Kanazawa Bar Association, for example, argues that more lawyers will result in (gasp!) greater competition. Facing increased competition, goes the logic, lawyers will have to focus increasingly on the grubby task of making money, losing the leisure that is apparently necessary to engage in advocacy for the public good (which is of course one of the mandates of lawyers everywhere). As a result, the number of immoral lawyers will increase as they take on bad, even hopeless, cases just to earn a living. Essentially this is an extended version of Hatoyama’s arguments about the horrors of a lawyer-laden Japan.

That having more lawyers will decrease the number willing to take public-interest cases for free is difficult logic to follow. The concept that market forces might be an effective way of getting rid of “bad” lawyers does not seem to exist, but then economics is not a subject tested on the Japanese bar exam. Nor for that matter is legal ethics, which renders it a mystery how some members of the existing legal profession are able to portray themselves as somehow being morally superior to the general public simply because they have passed a very difficult standardized test.

Both Hatoyama, the lawyers and the Justice Ministry simply take it as a given that the current legal profession is inherently better than the graduates of the new law schools, possibly because the current generation passed a much more difficult exam (pass rate 2-3 percent) which lacked any significant formal educational prerequisites (now one needs to be a law school graduate to sit for the bar). In doing so they conveniently ignore one of the other basic purposes of the law schools — to ensure that lawyers, judges and prosecutors receive a deeper and more intellectual education in the law. If that goal is realized, law school graduates should overall be better than prior generations. At the very least they will be better suited to dealing with the general public — and accustomed to competition.

That the number of lawyers generated by the new law schools has become an issue already, when the impact so far is a relatively modest increase, reflects one of the core problems with the whole system — that it was apparently set up without a serious inquiry into what the average person actually needs out of Japan’s legal system. Indeed, one fascinating aspect of the whole debate over the number of lawyers in Japan is that it misses a simple, basic fact — that the average Japanese person may not regard the legal system as a useful tool for solving problems. If you are arrested and prosecuted for a crime you will be found guilty over 99 percent of the time. If you get divorced and lose contact with your children, going to court probably won’t change a thing. Lawsuits against the national government are shown to be losing propositions almost daily in the news. Small wonder then that Japanese people are averse to litigation, when it is so often proven to be futile.

That the legal system does not function primarily for the benefit of the average person is probably a function of its history. Japan copied foreign laws and legal systems in the Meiji Era so that it would be taken seriously as a country internationally, not directly for the benefit of the Japanese people (except to the extent that being taken seriously was critical to preventing Japan from being colonized). Decades later, Japan’s current Constitution and many other basic laws and institutions were imposed by the American Occupation in an authoritarian fashion. Law in Japan probably continues to exist first and foremost as something that is imposed from above as a means of preserving and enhancing authority, rather than being a democratically ratified set of rules intended to benefit individual citizens. If this is true, then Japanese people are not culturally averse to litigation, but simply rational in having limited expectations toward law and the courts in their country.

No increase in the number of lawyers is likely to affect this basic structural dynamic, yet it is the one that nobody seems to want to talk about in the debate over the future of the law school system. Apparently it’s much easier to bash lawyers, even if you are one yourself.

Colin P. A. Jones is a professor at Doshisha University Law School in Kyoto. Send comments on this issue and story ideas to community@japantimes.co.jp