Land Without Lawyers

By J.D. Reed

A reluctance by all parties to use the ceremonial sword

American parents are fond of telling their college-bound children, "We'll always need lawyers." Partly as a result, there are 600,000 practicing attorneys in the U.S., or one for every 400 Americans. Most Japanese parents, by contrast, are barely aware of the profession.

Amazingly, in this highly competitive and complex island society, there are a mere 12,500 attorneys in private practice, roughly one for every 10,000 citizens. Most Japanese live--and die--without ever having seen a lawyer. Humorist Russell Baker recently suggested curing the imbalance by "exporting one lawyer to Japan for every car Japan exports to the United States."

The lawyers traded overseas, however, would find their occupation severely limited. Americans operate on the principle that the rights of individuals, and the wrongs done to them, are morally compelling claims worthy of full-dress legal battle. Although the Japanese have a highly developed sense of individual rights, social harmony, not personal justice, is the basis of their law. Litigation, never common, has actually decreased during the past 15 years. As the distinguished jurist Takenori Kawashima wrote in 1967, "We think of the law as a hereditary family sword . . . an ornament rather than a means for enforcing the power of the government to control the daily life of our society."

Since the 19th century, the venerated ideals of consultation and agreement in

Japan have helped to keep the sword sheathed. The 1942 Conciliation of Personal Affairs Act, for instance, outlines the philosophy in language that would irritate most American jurists. The main object, it states, lies in reaching a solution "based upon sound morals and with a warm heart." Such beliefs have been combined with borrowings from both the German and French legal systems. Like the European models, Japan's civil law puts less stress on judicial precedent than there is in the U.S., and it is used less frequently to resolve disputes and create rules of conduct.

Court trials, for example, still upset the Japanese sense of privacy and are considered public embarrassments. They also aggravate a deeply ingrained reluctance to assess good and evil in others. Kawashima notes that unlike most Westerners, the Japanese find that "there is no tension posed between what ought to be. . . morality, on one hand, and the realities of the human spirit and human society as it exists." One practice that caters to such beliefs: proceedings in some civil cases are extensively thrashed out in chambers to avoid surprises, making court appearances anticlimactic. Says an American attorney working in Japan: "They won't tolerate Perry Mason-type behavior."

In criminal cases, Japan's courts tend to be staunchly severe on rape, gun control and narcotics violations. But the nation's 99% conviction rate in cases brought to trial is not solely due to tough application of the codes. Prosecutors rarely go before the bench unless their case is a strong one. Moreover, the confession rate is very high. Japan's 2,774 judges are often moved to impose lighter sentences by pleas of remorse. Writer Frank Gibney, an expert on Japan, observes, "Be it only a traffic accident, if a person has caused injury to another, he is well advised to rush to the hospital with flowers and gifts for the victim."

Bringing a civil damage suit requires more than presents. There are high, non-refundable filing fees, payable in advance and based on a percentage; to sue for a million dollars, for instance, costs $5,032 in Japan. On top of that is the lawyer's fee, which must be paid no matter what the outcome. U.S.-style contingency agreements, under which losers pay no fee, are ethically prohibited in Japan. Finally, despite the relatively low amount of litigation, courts are often backlogged for years because trials move at a snail's pace.

Japan's lawyers are rigorously selected and intentionally limited. Last year more than 26,000 university graduates took a prohibitively difficult test for entrance into the two-year course at the Judicial Research and Training Institute, Japan's only professional school for lawyers, judges and prosecutors. A mere 457 passed. Graduates find the law no stepping stone to prominence. None of Japan's 16 postwar Prime Ministers, for instance, has been a lawyer. Only 51 of the 763 Diet members are attorneys. Nor does the position confer wealth. Only 20% make more than $43,000 annually.

The legal system is not burdened with many large and small matters for which U.S. courtrooms are so often the first resort. "Their courts are not the place where one manipulates the system," says Columbia Law Professor Michael Young, an expert on the Japanese legal system. "They do not decide on social change." As for less weighty conflicts, family elders often still handle matters like inheritance. Local police stations actively work to resolve neighborhood and domestic disputes (see box). The system of chotei (mediation) handles serious confrontations like divorce by having litigants and their lawyers meet with court-appointed masters who hear both sides and recommend a settlement.

Much of the work done in the U.S. by attorneys is processed in Japan by nearly 90,000 scriveners and other workers, many of whom have undergraduate law degrees. They make up an extensive, inexpensive and nearly invisible legal-services network, dealing with ordinary tax, patent, administrative and real estate transactions. Nor do lawyers handle fender-bending auto accidents. Japanese insurance companies normally dispose of claims without resorting to the almost pro forma suits that many U.S. underwriters seem to demand before a settlement is made. A judge's ruling is sought only in extreme conditions if negotiation fails.

Although they hire foreign attorneys for overseas operations and have legal departments to review their paperwork, at home Japanese companies still frown on the American practice of using attorneys to write contracts. Says Diet Member Taro Aso, for 13 years an executive at

Aso, Japan's largest cement company: "We never had a formal, written contract with any supplier or customer. There was no need." The details of deals are nonetheless carefully negotiated, sometimes with maddening thoroughness, and notes on the agreement are kept by both sides. Any subsequent disputes are settled by negotiation, in part because courts tend to make small awards; litigation is not cost efficient.

Will modern necessity be the mother of new interventions? Some in Japan see signs that change is coming. While only 200 or so Japanese lawyers now prepare international contracts on a full-time basis, more are moving into the growing area. Group lawsuits, unheard of two decades ago, have resulted in commendable antipollution laws. And ordinary citizens are beginning to be a little more litigious. Says Tokyo Attorney Shin Asahina: "In the past we hesitated even to use the word kenri (rights) with laymen because it was too strong. Now ordinary people use words like litigation and enforcement of rights, even if their fundamental feelings about them haven't changed."

Those fundamental feelings can still be powerful inhibitors. When three-year-old Yasuyuki Yamanaka drowned in a reservoir near the town of Nagoya, his parents sued their neighbors, who had been babysitting. The court recently awarded the parents $24,000 in damages. But the Yamanakas became public pariahs. They received hundreds of calls a day shaming them not only for taking money from neighbors but even for bringing suit against them. TV crews camped on their doorstep, and poison-pen letters flooded their mailbox. Less than a month later, the Yamanakas went back to court, returned the money and dropped the case. --ByJ.D. Reed. Reported by S. Chang/ Tokyo

With reporting by S. Chang This file is automatically generated by a robot program, so viewer discretion is required.