Norio Higuchi, The University of Tokyo, Japan
1. INTRODUCTION
Japanese legal education is now under heated discussion for reform on a large scale. Our government formed a highly esteemed advisory committee, the Judicial Reform Council (JRC) under the Cabinet in July 1999*. Its statutory mission is to consider fundamental measures necessary for judicial reform and judicial infrastructure arrangement by defining the role of judicature in the 21st century Japan. The agenda of the Council includes the realization of a more accessible and user-friendly judicial system, public participation in judicial system, and, in particular, the redefinition of the legal profession and the reinforcement of its function. Its main duty is to make up a plan to increase the number of quality-maintained lawyers. Although it would not be an easy task to realize the increase of the number of lawyers and at the same time to control their quality, it is expected that the Council will make an interim report this coming fall. It would determine the course of reform.
*The home page of the Council is at http://www.kantei.go.jp/foreign/judiciary/index.html. Also, you could go to our Supreme Court's home page at http://www.courts.go.jp/english/ehome.htm to take a look at our legal system.
This basic change of the legal profession, if it is made, would necessarily accompany with the reconsideration and reform of legal education at the university level. That is why the legal education is currently our favorite theme for discussion everywhere in Japan. Since last year, more than a dozen of universities hosted a symposium on the reform of judicial system and legal education. Also the Private Law Society, one of the largest legal academies in Japan, will make a special conference on the theme in June, where I am to be a panelist.
Here I will first explain an outline of our current system of legal education and then draw a rough sketch about what will be going on in the near future.
2.
PRESENT SYSTEM
1. Difficult bar
exams and legal education
The Japanese bar exam is famous or notorious for its extreme toughness. The success rate has been less than 2 percent every year, and more specifically speaking, until very recently, only 500 would pass the exam among some 30,000 applicants. They have to take three-stage exams, a multiple choice exam one day in May, essay exams for a week in July, and the final interview exams for another week in October.
This fact has influenced the legal education at university law departments. It has been characterized by the following three points.
(1) As to those students who want to pass the bar exam, the university legal education is not enough for them to realize their wishes.
(2) As to those who do not take the bar exam, the aim to get legal education is believed to get the so-called "legal mind."
(3) Still, the law department is one of the most popular ones in every university and the entrance exam into that department has been the toughest and most competitive.
I would add some comments and explanations about those characteristics, but before going on I think I should briefly outline the basic, current system of legal education in Japan.
2. Outline Of Japanese Legal Education
Japanese legal education is carried out at the undergraduate level. A graduate of high school, at the age of 18, chooses among the various departments of the universities which department he or she would apply for. If he or she wants to be a lawyer in the future, the usual choice would be a law department. Even though he or she has not decided on the future career, it is believed that to enter into law departments is advantageous to go into the business and the government after graduation of the university. Competition at the entrance examination for the law department is most difficult. Applicants take paper exams including English, Japanese, history and geography, although the required, specific subjects for the exams vary from one law department to another.
We have 91 law departments country-wide, which produce about 30,000 law graduates every year.
Undergraduates have to ran after two hares; to take courses in liberal arts, such as history, linguistics, natural science, and foreign languages, and also to take legal subjects including the Civil Code, the Criminal Code, civil procedure, and constitutional law. After finishing college, they acquire LL.B, Bachelor of Laws.
Legal education is offered to students in two ways; lectures in large classes and smaller seminars. In most universities, they have to take at least 20 law courses to graduate, and the courses include six basic laws: constitutional law, criminal law, Civil Code, commercial law, civil and criminal procedures. At the University of Tokyo law department, students have to take one of the three foreign laws: German law, French law and Anglo-American law. Among them Anglo-American law is most popular. For instance I just finished grading 510 papers a few days ago. Small seminars are also quite popular among the students, and in my case, eight students discussed the comparison of agency law between U.S. and Japan by making use of American legal materials on the laws of agency and partnership.
The curriculum at the law department is decided by the faculty meeting. The faculty consists of professors and associate professors, both are tenured, and in many universities a few lecturers also. The training and production of legal scholars is distinct and separate from the process of producing practitioners. Legal scholars do not need to take bar exams. A typical course to be a law professor is this. One enters into a master course of law, making a master thesis in two years, going up to a doctorate course, where one writes a quality paper in three years, gets a doctorate degree, and becomes a lecturer at some university law department. He or she has few experiences of practices.
As I said earlier, a severely limited number of law students become lawyers. The number of lawyers in Japan is currently some 19,000 (to be precisely, 19,298) and since the population of our country is nearly half of the U.S., the alleged number of one million of American lawyers has made a picture of clear contrast between the two countries. At any rate if one is so lucky as to pass the bar exam in Japan, she or he will enter into the Legal Research and Training Institute, established by the Supreme Court, for a year and a half to get a practical training. When they graduate from the Institute, their career divides into three ways, judges, prosecutors, and attorneys at law.
Most law students, other than those prepared to take the bar exam until they pass it, usually goes into the business world after graduation of law departments. They work for a company, but not in the legal department. Although the legal department is currently being strengthened in most companies, majority of law graduates work for various departments of companies. It is believed that businesses think highly of them since the law graduates usually have well-balanced sense of judgment and reasoning. These traits help the companies or other organizations develop and work smoothly and harmoniously within them.
3. Some Comments On The Three Characteristics Of Legal Education
The first point I picked up as to Japanese legal education was that (1) As to those students who want to pass the bar exam, the university legal education is not enough for them to realize their wishes. In other words, they believe they cannot pass the bar exam through attending classes at their university. They must work harder. In most cases they enter into a preparatory school for the bar exam. Some of them go to that school every day without attending most classes at the university. The preparatory school, it is criticized, teaches only the technique for passing the exam, forcing the students to learn by heart model answers to important issues in each field of law. As a result, even if one passes the most difficult exam in Japan, senior attorneys and judges are now thinking of him or her as lacking the basic mindsets as well as skills to be a good lawyer.
The second characteristic I mentioned above was that (2) As to those who do not take the bar exam, the aim to get legal education is believed to get the so-called "legal mind." Legal mind, if ideally acquired, would mean the well-balanced sense of judgment and reasoning. This cannot be a clear concept, however. Currently businesses make a more and more demand toward university law departments as to the quality of law graduates. They want the new workforce from the law departments more practical, more skillful, and more internationalized and globalized. They ask for a reform of legal education at the university level.
The final point was that (3) Still, the law department is one of the most popular ones in every university and the entrance exam into that department has been the toughest and most competitive. This is still true. If, however, our legal education is without any reform for another five to ten years, it may not be true any longer.
3. Possible reform in the near future
At this stage no one can predict the final plan of reform on legal education. Anything to be said is no more than a speculation. However, I can still point out at least three things at this stage, and will hopefully supplement them at the May conference.
First of all, the reform will certainly include the increase of new lawyers every year. The number of successful applicants for the bar exam was 1,000 last year. We doubled the number in the last 5 years, but still it is 1,000 among the 30,000 applicants. Now some members of the Judicial Reform Council strongly argue for the increase to 3,000 per year and that we should triple the total number of attorneys at law in the near future.
Secondly, the increase of the new lawyers will depend on the reform of legal education at the university level. The criticism against the current bar exam and prevalence of preparatory schools is so universal and powerful that an alternative way of entrance check into the lawyers will be invented. That may be this: a limited number of university law departments are nominated and approved as the so-called "law schools" and they are given a certain privilege of producing lawyers. The students of law schools could be lawyers after graduation without taking the current bar exam. They will concentrate on courses at law schools. There are no needs to attend preparatory schools any more. But, then, what kind of courses should be offered to them at law schools? How should they be selected? Also what kind of standards and processes should be applied to the selection of law schools? These problems we would have to solve are not easy ones.
Third and finally, we should not forget about the majority of law students. We may triple the number of successful bar applicants, and may introduce new law schools for these future lawyers, but still we have a lot number of law students who would not think of being legal professionals in a narrow sense. Does the curriculum for them remain untouched? Maybe the answer would be "No." Then we should improve the legal education for them as well.
Now the legal education is a hot issue in Japan, and we hope for its improvement in the near future.