New directions and trends

In other words, reformers have perceived a need for Japan's distinctive mode of bureaucratic intervention into industry and society (for example, administrative guidance) to be scaled back to make it possible for citizens and industry to order their affairs on the basis of clear and calculable law.

The following specific recommendations of the Reform Council, all of which were ultimately implemented, indicate the scope of the current phase of law reform.^[403] First, the Reform Council called for procedural reforms in criminal, administrative and civil law to enhance the functionality of courts in terms of effi­ciency and capacity. One example is the introduction of laws on discovery to facil­itate effective litigation, as called for by the Failed Systems School. Other reforms aimed at rationalising procedure included rationalising jurisdiction (as already noted with regard to the Family Courts above) and encouraging the courts to collaborate with related institutions towards more efficient case resolution - a concession to the accusations of centralism made by the Elite Managerial School.

Though efficiency is an important value in itself, as the Rational Economic School has asserted, procedural reforms are also related to access to justice, espe- ciallyin the context of ajustice system often described as costly and unwieldy. The Reform Council therefore recommended relieving the cost of litigation through reducing filing fees and introducing the possibility of imposing lawyers' fees or punitive damages on a losing party. Other means suggested to reduce the cost burden of litigation were enhancing legal aid in both civil and criminal cases, and enabling class actions to proceed.

More generally, reforms since the report have attempted to increase the size and quality of the pool of legal professionals.^[404] In addition to increasing quotas for passage of the Bar Exam, this has entailed the creation of graduate law schools. While the Reform Council envisaged these law schools to displace the primacy of the Bar Exam as the �gate' to practice (including the judiciary and procuracy), the retention of strict passage rates for the Bar Exam has jeopardised the future of many of these schools.^[405]

Finally, the Reform Council set in motion a major reform to the criminal justice system by recommending that lay persons sit with judges as �lay assessors' in all serious criminal cases. The lay assessor system began in 2009, five years after its enactment.^[406] It features a mixed panel oflaypeople and judges making decisions about guilt and sentencing. This reform was touted by the Reform Council as a means of popularising the Japanesejustice system, and is therefore also closely related to attempts to increase the accessibility of Japanese law.

Despite the scale and ambition of the recent legal reform movement, there are sceptics. Some deconstruct the competing agendas that underpin the reform movement.¹⁹⁶ Others question the reforms' modernist assumptions that increas­ing the volume and formality of law in Japan will contribute to either the sophistication of Japan's â€?civilisation' or economic development.¹⁹⁷ Such crit­ics emphasise the continuation of a pre-existing pluralist model of law that successfully integrates received European laws with Japan's local context and social norms.¹⁹⁸ Indeed, some authors urge other modern and modernising legal systems to look to Japan as an example of such successful assimilation to meet emerging problems, such as issues surrounding biotechnology and environmen­tal degradation.¹⁹⁹

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