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Monday, March 20, 2000

Valuable guide through the legal thicket in Japan


By GERALD McALINN
JAPANESE LAW (second edition), by Hiroshi Oda. Oxford University Press, 1999, 16,900 yen.

First and foremost, this is a book about the commercial law of Japan. Initially published in 1992, the second edition endeavors to reflect the many changes that have occurred in Japanese law in the years since the release of the first edition. Sweeping changes in many aspects of Japanese commercial law have been an essential part of the dramatic, and ongoing, restructuring of the way business is done in Japan, especially in the financial industry.

It is a daunting task, indeed, to explain the process of legal reform, while providing readers with the background and overall structure of Japanese law and the legal system. Fortunately, few people are better equipped for this task than Professor Oda. Formerly a professor of law at Tokyo University, he is now Sir Ernest Satow Professor of Japanese Law at the University of London (University College), a professor of College d'Europe (Brugge) and a licensed Japanese lawyer. In addition to his academic work, Oda serves as a legal consultant to a leading firm of English solicitors with offices in both London and Tokyo. It is not surprising, therefore, that he successfully combines in this book the thoroughness of a world-class academic with the practical and useful insights of a seasoned legal adviser.

While this book will be an important addition to the library of anyone interested in Japanese law and society, it will be of particular interest to foreign business people desiring to understand the broad parameters of Japanese business law and how it is likely to impact on their daily operations. Its superb organization and lucid prose make the book a valuable resource guide with necessary information presented in clearly delineated chapters such as the general principles and institutions of private law, law of property, the law of obligations (including contracts and agency), the law of tort, company law, financial law, antimonopoly law, intellectual-property law and labor law. Additional chapters provide background and deal with broader legal issues like the history of Japanese law, sources of law, the administration of justice, the legal profession, the protection of human rights, family law and succession, civil procedure, criminal law and procedure, and international relations.

Quite apart from its useful features, this book is important for another reason. When this reviewer first came to Japan in the mid-1980s to work as a foreign lawyer in a Japanese law firm specializing in international business transactions, more than a few expatriate business managers appeared to take great delight in Japan's well-known dearth of lawyers. The even smaller number of internationally oriented "bengoshi" suggested to them that law in Japan could be disregarded as a major factor in the conduct of day-to-day business.

To some extent, that assumption was not entirely incorrect 15 years ago as a practical matter. It may still be a partially valid observation today, given the state of Japanese law and the legal system. A legal system that lacks a trained and internationally sophisticated cadre of professional experts, as Japan's does, both in private practice and in the judiciary, will of necessity be circumvented by the international business community with its fast-paced needs. But times change, and failure to recognize that new rules are being set for the game can spell disaster for the unwary. This book goes a long way toward filling the information gap faced by many foreigners unable to access the law in Japanese.

Finally, Oda's book helps to undermine another misconception held by many foreigners living and working in Japan, namely, that case law is either nonexistent or unimportant to the law-making process. He cites over 400 cases, ranging from decisions of the lower courts to those of the Supreme Court, in support of various propositions of law. Oda thus demonstrates persuasively that "courts have played a crucial role in the development of modern Japanese law."

No undertaking of this scale could be completed without falling prey to certain inherent difficulties. The most glaring weakness of the book results from its sheer ambition. In a little less than 500 pages, the author has tried to describe virtually all of the salient features of contemporary Japanese law, including the recent reforms. Hence, a reader interested specifically in the role of contracts in Japan, for example, will find a meager page and a half on the topic as part of a larger section on the law of contract. Enough to whet the appetite perhaps, but certainly not enough to satisfy the hunger! Readers interested in the broader socially oriented legal issues at the forefront of Japanese society, such as the Religious Corporations Law and the amendment of Article 9 of the Constitution, will also find very little of direct interest in this book.

In a similar vein, the book accurately describes the recent legal reforms and proposals for change resulting from the many debacles of the 1990s without offering much of an assessment as to whether or not these efforts will be ultimately effective. This is, of course, the real question of lasting consequence.

On the other hand, if the new laws are put on the books and promptly forgotten in favor of the "business as usual," old-boy school of doing things, Japan will lose a golden opportunity to emerge as a true leader in the Asia-Pacific region and will do immeasurable damage to its standing as an industrialized nation governed by the rule of law.

Worse still for Japan in the long run will be if the laws are selectively enforced against foreign-affiliated companies doing business in Japan.

These criticisms are minor in light of the intended purpose and readership of this book. Moreover, any deficiencies in terms of the depth of coverage of the various issues is more than amply compensated for in the rich footnotes. These alone make the book a worthwhile purchase.

In conclusion, this book represents an excellent effort to systematically introduce readers of varying levels of expertise, interest and need to the nature and contours of Japanese law. It is highly readable and user friendly, especially for those readers seeking to understand the law in the context of doing business in Japan.

Gerald McAlinn is a professor of law at Aoyama Gakuin University. He is currently on sabbatical at the University of Pennsylvania Law School and Princeton University.


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