Setting the Limits: Who Controls the Size of the Legal Profession in Japan?, Kay-Wah Chan

Whereas India has the largest number of law practitioners in the world, Japan adopted a different approach in developing its legal profession. For most of the twentieth century, the Japanese legal profession was a small elite group, with an extremely low number of lawyers per capita among developed countries.

As compared with many other advanced economies, Japan is relatively late in seeing substantial growth in the number of lawyers (bengoshi). It had a paucity of bengoshi, which has only commenced to substantially expand since 2001. A pre-determined quota regulates the number of entrants to the profession. Legal professionals (h∂s∂) in Japan are divided into three branches: bengoshi, judges and prosecutors. To qualify as a legal professional, an aspiring candi­date needs to pass the National Legal Examination (NLE), and then take a training programme and pass the graduation examination at the Legal Training and Research Institute (LTRI), operated by the Supreme Court. Until recent years, basically nobody failed the graduation examination. The large majority of LTRI graduates become bengoshi. Therefore, supply in the form of the quota on the number of NLE passers determines the size of the bengoshi profession. This supply, however, may have no connection with social demand.

The development of the NLE can be divided into four periods. First, from the late 1960s to 1990, the number of passers remained stagnant. Then, in the 1990s, with the first round of reforms, the number of passers started to increase. This expedited the increase in the number of bengoshi from the mid-1990s. The third period (the late 1990s to 2001) is characterised by the justice system reform movement and deliberations. Reform recommendations made in 2001 included a significant increase in the number of legal profes­sionals. In the fourth period (post-2001), such reform was to be implemented. The number of passers increased substantially but recently the increase has slowed. [...]

Sixty-eight law schools opened in 2004 and were subsequently joined by six additional law schools. A new NLE was introduced for their graduates. The first new NLE was held in 2006. To phase out the old system, the old NLE was basically kept until 2010. From 2011, people who are not law school graduates can take a preliminary examination and, if they pass, can take the new NLE. The number of NLE passers initially sharply increased, but declined after reaching its peak in 2008.

As Miyazawa commented, there was “ample opportunity” for the polit­icians, bureaucrats and parties with vested interests to “chip away at and minimize” the reform during its implementation. An important factor for maintaining the reform momentum was the prime minister's leadership. The justice system reform received support from the former Prime Minister, Keizo Obuchi, who passed away in the midst of the reform movement in 2000. His successor, Yoshiro Mori, served a relatively short term (until April 2001). The next Prime Minister, Junichiro Koizumi, was a reformist and stayed in the post until September 2006, after law schools were opened. However, subsequently, the prime ministership in Japan became unstable. In the three years after Prime Minister Koizumi completed his terms, the LDP had three prime ministers before its loss of power to the Democratic Party of Japan (DPJ) in 2009.

The LDP's attitude towards the scale of the NLE reform also seemingly changed. In August 2007, then Justice Minister Kunio Hatoyama commented that it was excessive to have 3,000 NLE passers. On 16 October 2007, LDP's Justice System Research Council decided to examine whether to reconsider the extent of the increase in NLE passers. Justice Minister Hatoyama in January 2008 said that an increase in the number of legal professionals would influence quality, and that the Ministry would consider this issue. Such a change in attitude could also be due to the change in the prime ministership. The LDP Cabinets after Koizumi have revised the approach towards deregu­lation. As opposed to Koizumi's and his successor, Abe's, reformist direction (structural reform towards a self-responsibility society), the Fukuda adminis­tration (September 2007-September 2008) reverted to the traditional model of the government playing the “guardian” role. In March 2008, the Fukuda Cabinet decided to halt the acceleration of the increase in the number of NLE passers. Within the LDP, some members also began to demand a reconsideration of the pace of increase.

Further, as Miyazawa predicted, there was a possibility that the LDP and the business sector would stop their pursuit of justice system reform when their immediate goals were achieved. The business sector's needs indeed have, to some degree, been satisfied. The increase in the number of bengoshi in recent years has facilitated the expansion of the commercial legal practice sector.

With the gradual implementation of reform and the increase in the number of bengoshi, there was growing opposition within the bengoshi profession against the increase in NLE passers. On 18 July 2008, the JFBA proposed a slow-down in the pace of expansion of the legal profession. Many local bar associations also demanded a reconsideration of the plan for growth.

Although the then Chief Cabinet Secretary criticised JFBA's proposal/ demand, it is obvious that there was a “lack of political leadership at the highest level”.

The justice ministership, like the prime ministership, also keeps changing. In any case, the “main actor in policy-making” in a ministry in Japan is the administrative vice-minister who is the highest-ranking civil servant in that ministry and often “more powerful” than the minister. Persons serving this post in the MOJ almost all come from the PPO. The judiciary and MOJ are apparently not supportive of the substantial increase. They already showed a “cautious” attitude towards “hasty” reform during the justice system reform discussions of the late 1990s. As Kinoshita pointed out, a substantial increase in the number of bengoshi would cause an increase in civil and criminal litigation and necessitate a rapid increase in the number of prosecutors and judges, which the PPO and the judiciary do not want. The LTRI has a maximum annual capacity of 3,000 new apprentices. Replacement or abol­ishment of the LTRI would meet opposition from the Supreme Court, which insisted on maintaining the LTRI. It would not want to lose its involvement in legal training. In fact, the judiciary and the MOJ already took such a stand during the time when the JSRC was holding deliberations on the reform. Through the LTRI, the Supreme Court has a gatekeeper role. The Supreme Court therefore would not support a drastic increase in NLE passers. In its report produced to the JSRC, the Supreme Court stated that it did not agree to reform that began with a substantial increase in the number of legal profes­sionals and left it to the market.

Further, as Okada commented, the government agencies which regulate quasi-legal professions in Japan might have a dislike towards the substantial increase in the number of bengoshi because this would result in bengoshi's encroachment into these quasi-legal professions' jurisdictions.

The number of NLE passers declined after reaching its peak in 2008 and it remains far below the JSRC's target of 3,000 for 2010. The exact number of NLE passers is decided by the National Legal Examination Committee (NLE Committee) and the MOJ. The Justice Minister chose the NLE Committee members. Kinoshita concluded that the parties which really have an influence on the decision regarding the number of NLE passers were the Justice Minister and the ruling party. However, as discussed above, the bureaucrats inside the Ministry could also exert a strong influence. [...]

With the disappearance of both political leadership and the business sector's pressure on NLE reform due to political changes and seemingly the satisfaction of the business sector's needs, the issue of the number of NLE passers was again in the hands of the three h∂s∂. In reality, this means control is predominantly in the hands of the Supreme Court and particularly the MOJ. Both want to maintain the LTRI and a highly competitive NLE. Reform has been scaled down. The bengoshi who oppose an increase in their number are gradually getting what they want. Nevertheless, as shown in the analysis above, the size of the bengoshi profession in reality is controlled by the judiciary and the MOJ, due to their gatekeeping roles via the LTRI and the NLE, respectively. Their wishes, however, as shown by the justice system reform movement in the late 1990s, can be overridden by the wishes of the business sector, which is powerful and influential in policy making in Japan.

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