Friday, September 11, 2009
I recently had the pleasure of reading "Reforming Knowledge? A Socio-Legal Critique of the Legal Education Reforms in Japan" by Annelise Riles and Takashi Uchida. The article looks at recent reforms in Japanese legal education that aim to replace the 4-year undergraduate law degree with a 3-year postgraduate degree modeled (in intention, if not in fact) on the American JD degree. Following a brief transitional period that I think ends this year, anyone who wants to be a practicing lawyer in Japan will have to have the new JD-style degree.
The reforms were premised on the idea that Japan needs to move from an "advance control" society, in which the government dictates private parties' behavior in advance, to a society based on after-the-fact review and remedies, in which parties choose their course of action and then take the consequences. The latter type of society, so this reasoning goes, requires more legal specialists to assist private parties in assessing the law's requirements. Therefore, society needs more, and differently trained, lawyers.
Riles and Uchida question the success of the reforms in a number of areas. But more importantly for comparative purposes, they question an unexamined premise of the reforms: that Japan needs more professional lawyers. At present, legal knowledge in Japan is relatively widely distributed; far more people are undergraduate law majors than become lawyers. Those who don't become lawyers often go into business, sometimes in corporate legal departments and sometimes not. But they have a pretty sophisticated understanding of legal issues and can talk intelligently with professional lawyers in a way that many American business people cannot. Riles and Uchida discuss the advantages and disadvantages of two ways of distributing legal expertise in society: the monocentric model, in which legal knowledge is something like medical knowledge, and the polycentric model, in which expert knowledge is not monopolized by a single profession. Their point is not that one model is right and the other one wrong; it's that this issue hasn't really been looked at in the reforms, and the currently prevailing polycentric model - which they believe contributes significantly to Japan's low litigation rate - is being abandoned without any real consideration of its costs and benefits relative to those of the monocentric model.
This way of thinking about legal education has obvious applications in any country, but particularly in countries such as China where there is more experimentation and searching for solutions going on. My impression - not based on any in-depth research - is that most of the discussion about legal education in China takes for granted that the goal of legal education should basically be to produce more lawyers, as opposed to legally literate people who work in other fields, and that legally related work should be handled by the single profession of lawyers. People such as rural "legal workers" (法律工作者) are barely tolerated as a necessary concession to China's perceived backwardness, not as something that should actually be encouraged.
I hope people in China will read this article and think about its lessons.