Major Differences Between the Japanese and American Legal Systems

November 20, 2013 

The various legal systems in place around the world share certain features, but very few (perhaps none) are exactly alike. Indeed, as each system reflects the needs, cultures and traditions of the nation it represents, the world’s legal systems are as variable as the people themselves. Therefore, when it comes to Japan and the United States, there are many differences between each country’s legal system (although the gap is closing somewhat as globalization progresses). The main differences stem from the fact that one system is based on common law, and the other on civil law.

Common Law vs. Civil Law Systems

Legal systems around the world can generally be grouped into two main types: common law and civil law. For those who do not know, in common law countries, the main source of authority is case law in the form of judicial opinions, whereas in civil law countries, codified laws predominate. Moreover, in common law countries, judges act as arbitrators, presiding over lawyer-led proceedings and fashioning appropriate remedies somewhat flexibly. On the other hand, in civil law countries, judges have a more central role, investigating facts, examining witnesses and applying codified law to their findings in a somewhat stricter manner than in common law countries.

Japanese and American Legal Systems

Japan is primarily a civil law country, and the United States is primarily a common law country. These distinctions, however, are not perfect. In the United States, codified law can be found at all jurisdictional levels, and may control the outcome of a dispute. And in Japan, case law precedent offers non-binding guidance that may, in some cases, be persuasive, and may be relied upon if not in conflict with code.

Perhaps what is most interesting about the differences between the two legal systems is their evolution. While the U.S. legal system is mostly inherited from the English legal tradition, Japan’s is a mixture of several main influences. In the late 1800s, early German civil code was imported by Japan, along with elements of the French civil code as well. After World War II, however, a number of American borrowings appeared, such as a constitution and laws regarding criminal procedure, labor law and corporate law. In more recent years, Japan’s legal system was updated, including revisions to codes on topics such as civil procedure and bankruptcy.

Role of a Lawyer

Compared to the United States, Japan has far fewer lawyers per person (approximately 1 in 4,000 versus 1 in 250). These lawyers are joined by large numbers of other functionaries, however. These include:

  • Judicial scriveners, who assist with real estate and litigation documentation;
  • Administrative scriveners, who are tasked with legal document drafting;
  • In-house legal professionals, who may have specialized in legal topics during their undergraduate education and who assist with contract drafting; and
  • Civil law notaries, who prepare official documentation or “notarial deeds” which authenticate private documents..

The role of a lawyer in each country is different, although the amount of overlap is increasing. In Japan, lawyers primarily serve as litigators, assisting with court cases, although not having as prominent a role in the proceedings as American lawyers. In addition, in Japan emphasis is placed on written briefs, as opposed to oral argument. In contrast, in the U.S., lawyers take the lead with oral presentations, witness examination and other tasks that may be allocated to judges or others in Japan.

In Japan, lawsuits are generally avoided for cultural reasons (but certain disputes such as patent suits are on the rise), while the United States is known for having an especially litigious populace. In another point of difference for lawyers, bar passage rates in Japan are quite low — as low as 25 percent in recent years — far below those of certain majority-pass jurisdictions in the United States.

Notwithstanding the difficulty of navigating the differences between these systems, a number of U.S.-based international law firms have opened successful offices in Japan (e.g. Morrison Foerster). And as the requirements of international business clients continue to create demand for lawyers or lawyer teams that are proficient in both Japanese and American law, further collaborative efforts will likely be seen in the legal industry as time progresses.