This is the first in a series of interviews to young legal scholars majoring in Japanese law.
Introduce yourself in 50 words.
I am an Australian solicitor (aged 30), returning to study at the University of Tokyo after several years spent as an associate in the Tokyo office of an international law firm. My area of interest is administrative/public law.
What led you to Japanese law? Didn’t you know that Japanese do not like the law?
A combination of a double major in Japanese Studies and Law at undergraduate level, and a desire to live in Japan after obtaining my legal qualifications. I don’t accept the premise of the second question!
Tell us something about your current research: your subject, why did you choose it, your approach, etc.
I have been using my time in Japan to study broadly and to learn as much as I can about the Japanese administrative/public law system. I have become increasingly interested in the rhetoric used by Japanese courts in declaring administrative conduct to be unlawful when conducting judicial review. My sense is that, formally, Japanese courts appear to be far more willing than courts in e.g. England or Australia to review the substance of administrative conduct – judgments often refer, for example, to whether conduct was “reasonable” or accorded with the “common sense of society” – but given the very low success rate of administrative appeals, I assume that substantively this cannot be the case.
For the time being, I am focusing my Masters dissertation on administrative appeals in relation to refusals to disclose documents on the basis of national security or public order under the freedom of information laws of Australia and Japan. Such refusals involve a high degree of administrative discretion, and courts should ordinarily be hesitant to overturn them. By comparing court judgments in both Australia and Japan, I hope to determine quantitatively in which country courts are more willing to disturb administrative discretion in this area, and qualitatively how courts justify their decisions.
What were the most challenging problems that you faced in your research? Can you tell us something about your results so far?
My greatest challenge has been to understand in the first place the reasoning process of Japanese judges and the underlying assumptions that inform their judgments, having come from a very different legal system (particularly as Australian administrative law is itself rather sui generis).
This has prompted me to reach further back by trying to learn more about the German administrative law system upon which Japanese administrative law has traditionally been based (and therefore learn German also!). A good deal of Japanese administrative legal scholarship assumes a degree of prior knowledge about German law.
Is there anything you find really “strange” in the Japanese legal system?
Anything you think should be changed? What instead is a strength of the Japanese legal system, that should inspire other countries?
I find Japanese legislation to be surprisingly short even by continental standards (and often poorly drafted). This is probably partly a result of having so few former lawyers in the legislature, but it means that judges have a great deal of discretion in interpreting legislation.
That said, practitioners and courts seem to take a “common sense” approach to the interpretation of legislation and agreements. The extraordinary length and detail of legal documents in English-speaking countries arguably encourages lawyers to exploit discrepancies, omissions or drafting errors in order to argue for interpretations that run counter to the drafters’ intentions. This not only increases litigation, but also drives up transaction costs as deal lawyers obsess over the details of contracts. It is also doubtful whether this degree of attention actually increases certainty in the long run. Particularly in smaller disputes it could be beneficial for English-speaking countries to follow the Japanese lead of seeing written legal documents as “guiding lights” only.
Mark West’s book presents some aspects of “Law in Everyday Japan”. You’ve been living in Japan for several years: do you have any anecdotes to tell about everyday law in Japan?
One of Mark West’s chapters relates to the relatively high incidence of lost wallets being returned intact to police stations in Japan. I have also dropped my wallet by accident on more than one occasion. On the most recent occasion, I realised that I had lost my wallet almost immediately, and had a fair sense of where I had dropped it. As it turned out, it had been handed in to the nearby koban only a few minutes before I reported it missing, but the police officer on duty refused to return it to me until I had telephoned the finder to apologise for having put them to the trouble of handing it in!
Have you worked in a Japanese law office/firm? If so, can you tell us something about your experience?
I have worked in both a Japanese law firm (in Osaka) and in the Tokyo office of an international law firm, where I worked closely with a number of major Japanese firms. The former was less glamorous than the latter, but the hours were no shorter!
Japanese firms are going through a period of significant change that English and American firms went through two decades ago: they are becoming larger, more international, more commercially focused and more competitive. Japanese firms will probably never become international firms in their own right, but they will most likely continue to increasingly resemble international firms.
What is the situation of Japanese (legal) studies in your home country?
Reasonably strong. There are a large number of students who study Japanese at high school and university in Australia (at one stage more than in the US and Western Europe combined, I have read), and quite a few go on to do student exchanges in Japan, followed by law degrees. Several major universities have at least one member of faculty who specialises in Japanese law, or has spent some time researching in Japan.
All of the above tend to coalesce in a research network, the Australian Network for Japanese Law (ANJeL): http://sydney.edu.au/law/anjel/
Tell us your 3 favourite works on Japanese law.
It is difficult to nominate “favourites”, but I can recommend the following three to anybody with an interest in learning about Japanese public law.
– Frank K. Upham, “After Minamata: Current Prospects and Problems in Japanese Environmental Litigation”, in Ecology Law Quarterly 8 (1979) p. 213
(Although an older work and mainly on environmental law, it also includes one of the best and clearest overviews of Japanese administrative litigation in the English language, much of which is still applicable and relevant today.)
– Yoichi Oohashi, Gyosei-ho – Gendai Gyosei Katei Ron (Vol. 1 2009, Vol. 2 2012; Yuhikaku, Tokyo)
(For those who can read Japanese. Professors Shiono’s and Uga’s textbooks are canon, but this very interesting text is written in an engaging and easy-to-read style that is accessible for non-native Japanese speakers.)
– Shigenori Matsui, The Constitution of Japan: A Contextual Analaysis (2011; Hart Publishing, Oxford)
(This up-to-date work comprehensively fills a gap in the English language literature on the Japanese Constitution after the works of Lawrence Beer and the last edition of Hata and Nakagawa’s book.)
Your advice to a law student with an interest in Japan(ese law).
Don’t be distracted by sociological arguments about the all-pervasive bureaucracy or the reasons for the supposedly low litigation rate! Japan follows the rule of law, and has a rich and sophisticated legal system that is worth studying on its own terms and holding up for comparison.
Thank you very much Joel for this rich and enriching interview!