|
Japan The Role of Law in Japanese Society
As in other industrialized countries, law plays a
central role
in Japanese political, social, and economic life.
Fundamental
differences between Japanese and Western legal concepts,
however,
have often led Westerners to believe that Japanese society
is based
more on quasi-feudalistic principles of paternalism (the
oyabun-kobun relationship) and social
harmony, or
wa
(see Values
, ch. 2). Japan has a relatively
small number
of lawyers, about 13,000 practicing in the mid-1980s,
compared with
667,000 in the United States, a country with only twice
Japan's
population. This fact has been offered as evidence that
the
Japanese are strongly averse to upsetting human
relationships by
taking grievances to court. In cases of liability, such as
the
crash of a Japan Airlines jetliner in August 1985, which
claimed
520 lives, Japanese victims or their survivors were more
willing
than their Western counterparts would be to accept the
ritualistic
condolences of company presidents (including officials'
resignations over the incident) and nonjudicially
determined
compensation, which in many cases was less than they might
have
received through the courts.
Factors other than a cultural preference for social
harmony,
however, explain the court-shy behavior of the Japanese.
The
Ministry of Justice closely screens university law faculty
graduates and others who wish to practice law or serve as
judges.
Only about 2 percent of the approximately 25,000 persons
who
applied annually to the Ministry's Legal Training and
Research
Institute two-year required course were admitted in the
late 1980s.
The institute graduates only a few hundred new lawyers
each year.
Plagued by shortages of attorneys, judges, clerks, and
other
personnel, the court system is severely overburdened.
Presiding
judges often strongly advise plaintiffs to seek
out-of-court
settlements. The progress of cases through even the lower
courts is
agonizingly slow, and appeals carried to the Supreme Court
can take
decades. Faced with such obstacles, most individuals
choose not to
seek legal remedies. If legal personnel are dramatically
increased,
which seems unlikely, use of the courts might approach
rates found
in the United States and other Western countries.
In the English-speaking countries, law has been viewed
traditionally as a framework of enforceable rights and
duties
designed to protect the legitimate interests of private
citizens.
The judiciary is viewed as occupying a neutral stance in
disputes
between individual citizens and the state. Legal recourse
is
regarded as a fundamental civil right. The reformers of
the Meiji
era (1868-1912), however, were strongly influenced by
legal
theories that had evolved in Germany and other continental
European
states. The Meiji reformers viewed the law primarily as an
instrument through which the state controls a restive
population
and directs energies to achieving the goals of fukoku
kyohei
(wealth and arms).
The primary embodiment of the spirit of the law in
modern Japan
has not been the attorney representing private interests
but the
bureaucrat who exercises control through what sociologist
Max Weber
has called "legal-rational" methods of administration.
Competence
in law, acquired through university training, consists of
implementing, interpreting, and, at the highest levels,
formulating
law within a bureaucratic framework. Many functions
performed by
lawyers in the United States and other Western countries
are the
responsibility of civil servants in Japan. The majority of
the
country's ruling elite, both political and economic, has
been
recruited from among the graduates of the Law Faculty of
the
University of Tokyo and other prestigious institutions,
people who
have rarely served as private attorneys.
Legal and bureaucratic controls on many aspects of
Japanese
society were extremely tight. The Ministry of Education,
Science,
and Culture, for example, closely supervised both public
and
private universities. Changes in undergraduate or graduate
curricula, the appointment of senior faculty, and similar
actions
required ministry approval in conformity with very
detailed
regulations. Although this "control-oriented" use of law
did not
inhibit the freedom of teaching or research (protected by
Article
23 of the constitution), it severely limited the
universities'
scope for reform and innovation. Controls were even
tighter on
primary and secondary schools
(see Education
, ch. 3).
Data as of January 1994
|
