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Hayashi, Makiko (2016) Constructing the legal profession in modern Japan. PhD thesis. SOAS University of London. http://eprints.soas.ac.uk/26667 Copyright © and Moral Rights for this thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non‐commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this thesis, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", name of the School or Department, PhD Thesis, pagination. Constructing the Legal Profession in Modern Japan Makiko HAYASHI Thesis submitted for the degree of PhD 2016 Department of the Languages and Cultures of Japan & Korea SOAS, University of London 1 Abstract This thesis seeks to clarify features in the formation of the modern Japanese legal profession, with particular reference to the development of the judicial system and legal practice. In the early Meiji period legal practice in Japan was carried out by two groups: qualified lawyers, many of whom were former samurai who tended to focus their attention on politics and the social movements of the day, and non-credentialed legal practitioners, who conducted much of the practical day-to-day representation of clients. The continuity of the legal profession and its practices from the Edo era into the Meiji era and the Westernisation of Japan’s judicial systems had established this dual system of qualified and non-credentialed practitioners, as well as hybridised court processes which utilised both adjudication and conciliation procedures. This thesis also examines the influence of Western lawyers, especially that of English barristers, and the pre-existing legal practice on the law-making process. The findings of the research demonstrate that the consensus view held until now, which portrays foreign legal advisers and judicial officers as having been the codifiers of all Meiji period laws, can be challenged and replaced by another interpretation, namely that the true protagonists of the Westernisation of Japanese legal systems were practicing lawyers. Finally, the thesis also analyses how the Japanese legal profession established and monopolised its occupational spheres of influence in the 1920s and 1930s. The exclusion of quasi- lawyers from the judicial courts is also discussed in order to clarify this process of professionalisation. The construction of the dual judicial system in the Meiji era and the later exclusion of the quasi-lawyers in particular weakened the integrity of the legal profession, at a time when many of the fundamental functions of Japan’s legal system had already been compromised by the nation’s militarisation. The justice and fairness of the legal profession’s bar qualification system remained in wartime as a small beacon of hope to examination candidates who wanted to believe in the primacy of the legal system. 3 Table of Contents Declaration for SOAS PhD thesis............................... 2 Abstract...................................................... 3 List of Tables (in appearance order).......................... 6 List of Graphs (in appearance order).......................... 6 Chapter 1 Introduction........................................ 7 Section 1: The Disconnection and Continuity Models of the Japanese Legal Profession .................................... 7 Section 2: The Reception of Law.............................. 20 2-1 The Received ‘Objects of Law’ ........................ 21 2-2 The Process of Reception and Assimilation ............ 24 Section 3: Two Theories of ‘The Profession’.................. 30 Section 4: Outline of Legal Professionalisation in Japan..... 35 4-1 The First Period (1858-1883): The Beginning of the Westernisation of Legal Practice ........................ 36 4-2 The Second Period (1884-1899): The Completion of the Modernisation of Legal Practices and the Legal Profession42 4-3 The Third Period (1900-1930s): The Assimilation of Modern Laws into Society and Monopolisation of Legal Services .. 47 Section 5: Aims of the Study................................. 52 Chapter 2 First Encounters: The Influence of Foreign Lawyers. 60 Section 1: Introduction...................................... 60 Section 2: Consular Courts and Japanese Courts............... 66 2-1 Japanese Criminal Court ............................... 68 Section 3: Formalising Procedures in Japanese-Foreigner Lawsuits ............................................................. 79 3-1 Two Types of Unequal Treaty ........................... 80 3-2 Negotiation concerning the Japanese Court’ Jurisdiction85 Section 4: British Barristers in Meiji Japan................. 97 4-1 Arrival of the First Barristers ...................... 97 4-2 A British Barrister’s Role in Japan’s Reception of Law ....................................................... 102 4-3 Significance of the Qualification System ............ 116 4 Chapter 3 Diversity: Actual Legal Practices................. 126 Section 1: Introduction..................................... 126 Section 2: Hybrid Judicial System........................... 131 2-1 Sources of Law and Legal Interpretation .............. 131 2-2 Conciliation and Adjudication ........................ 140 2-3 Number of Qualified and Non-credentialed Legal Practitioners ........................................ 147 2-4 Demand for Non-credentialed Legal Practitioners ...... 152 Section 3: Conciliation Procedure........................... 160 3-1 Legal Practitioners and the Conciliation Procedure ... 160 3-2 Qualified and Non-credentialed Legal Practitioners ... 169 3-3 Distinctions amongst Lawyers ......................... 178 Section 4: Significance of Adjudication..................... 186 Chapter 4 Adaptation: Education and Examination System...... 194 Section 1: Introduction..................................... 194 Section 2: From Voluntary Associations to Law Schools....... 198 2-1 From Private Schools to Private Study Groups ......... 198 2-2 Voluntary Associations annexed to Firms .............. 202 2-3 Restriction of the Advocates’ Associations ........... 207 Section 3: Differentiation between Lawyers.................. 210 3-1 Legal Education in the Ministry of Justice ........... 210 3-2 Legal Education at the University .................... 216 Section 4: The Attorney Act................................. 225 4-1 Choice between Higher Status and Free Business ....... 225 4-2 Apprenticeship System ................................ 230 Chapter 5 Modernisation: Court Procedure and ‘The Profession’236 Section 1: Introduction..................................... 236 Section 2: Abolishment of Conciliation...................... 238 2-1 Deletion of Conciliation Clauses from the Code ....... 239 2-2 Conciliation Committeeman Rules – the discarded draft 246 Section 3: Non-enforcement of Attorney Utilisation.......... 253 Section 4: Enforcement of Retirement........................ 263 Chapter 6 Monopolisation: In- and Out-of-Court Legal Services275 5 Section 1: Introduction..................................... 275 Section 2: Monopolisation of In-Court Legal Services........ 277 Section 3: Differentiation of Out-of-Court Legal Services... 282 3-1 Economic and Social Circumstances .................... 283 3-2 Quasi Lawyers’ Professionalisation ................... 284 3-3 Monoplisation of Out-of-Court Services ............... 293 Section 4: Monopolisation of Out-of-Court Legal Services.... 298 Conclusion.................................................. 310 Bibliography................................................ 319 Articles and Monographs..................................... 319 Archival Collections and Periodicals........................ 345 List of Tables (in appearance order) [Table 2-1-1] Civil cases brought by Japanese plaintiffs in consular courts (by consular court; 1875-1898)---------------72 [Table 2-1-2] Civil cases brought by Japanese plaintiffs in consular courts (by result; 1875-1898) ----------------------74 [Table 2-2-1] Civil cases brought by foreign plaintiffs in Japanese courts (by nationality; 1875-1898) -----------------77 [Table 2-3-1] List of barristers in Japan (1867-1898) --------98 [Table 2-3-2] Japanese barristers called to the bar (1868-1898)122 [Table 3-1] Civil Caseloads at Tokyo Court (1873-1875)-------142 [Table 3-2] Civil Caseloads [Adjudication and Conciliation] (1873-1893)------------------------------------------------146 [Table 3-3] Number of Lawyers (1876-1944)-------------------149 [Table 3-4] umber of Qualified and Non-credentialed Legal Practitioners (1876-1890)----------------------------------154 [Table 3-5] Types of ‘Employee’ Lawsuits (1875-1890) --------188 [Table 6-1] Average of Income (Yen) per region (1929) -------303 List of Graphs (in appearance order) [Graph 3-1] Civil Caseloads [Adjudication and Conciliation] (1873- 1893) ----------------------------------------------------- 147 [Graph 3-2] Number of Lawyers (1876-1944) --------------------148 [Graph 3-3] Ratio of Qualified and Non-credentialed Legal Practitioners (1876-1890) ----------------------------------154 6 Chapter 1 Introduction Section 1: The Disconnection and Continuity Models of the Japanese Legal Profession