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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


Japan - TABLE OF CONTENTS

  • Japan - The Political System - Government and Politics

  • Japanese Foreign Relations


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