Kan is not a “Japan rarity,” but decent foreign reporting may be

I’m going to break down this post from the WSJ’s Japan blog piece by piece.

In the U.S., the current president, vice-president, first lady and secretary of state are all lawyers.

Sure–the Democratic Party is mostly run (and also mostly financed) by lawyers. But the Bush administration had few lawyers in its ranks; the composition of the cabinet is really determined more by who is choosing its members.

More than 40% of the members of Congress hold law degrees, in fact. Finally, they have some like-minded counterparts at the top of the Japanese government.

Prime Minister Naoto Kan is the first ”benrishi” lawyer to be prime minister in Japan since World War II, “benrishi” being licensed to handle patents — such as for his Mahjong machine — and other intellectual property matters. His top aide, Chief Cabinet Secretary Yoshito Sengoku, is a “bengoshi”, or general lawyer.

First of all, benrishi is a very narrow qualification, somewhat like being a patent agent in the US except that it also involves advisory functions and covers a range of intellectual property. Kan doesn’t even have a law degree, and the benrishi exam only tests a few specific IP laws (see the official spec here).

Secondly, Kan is not the first postwar lawyer prime minister. Tetsu Katayama, prime minister from 1947 to 1948, was a full-fledged bengoshi and is even pictured on Wikipedia wearing his attorney pin.

But most importantly, this analysis betrays a basic misunderstanding of how legal services differ between the US and Japan. Harvard professor Mark Ramseyer attacks the under-lawyered Japan myth in his excellent book Japanese Law: An Economic Approach. In one early section of the book, he points out that there are many other qualifications to provide legal services to third parties, and that a huge amount of Japan’s legal work is performed by people with no Japanese law license whatsoever, including Justice Ministry bureaucrats, corporate legal staff, and foreign-qualified lawyers like me.

Ramseyer also points out that the number of law school graduates in the US (many of whom also end up not practicing law independently) is not that different on a per-capita basis from the number of law faculty graduates in Japan. This brings us back to the WSJ:

Altogether, the Kan “irregular militia” cabinet has four lawyers, the same number as the final Hatoyama cabinet it replaced, and the new secretary general of the ruling Democratic Party of Japan, Yukio Edano, is also a lawyer. That’s quite a sea change from the last administration in the Liberal Democrat Party’s nearly 50-year rule: Taro Aso had no lawyers in his cabinet at all.

This is all technically true, but not very relevant. Again, most legally-trained people in Japan end up not becoming attorneys. This includes several members of Aso’s cabinet, including Kaoru Yosano, Yoichi Masuzoe and Shigeru Ishiba, who all graduated from law faculties of top universities.

Besides, the LDP has plenty of licensed lawyers on hand, even if Aso didn’t utilize any of them. His successor as leader of the LDP, Sadakazu Tanigaki, is a bengoshi. So is one of the most popular LDP-backed politicians at the moment, Osaka governor Toru Hashimoto. Many lesser LDP legislators sport attorney pins, too.

Mr. Kan’s Justice Minister Keiko Chiba, a holdover from the previous cabinet, practiced law for years — a less common background for Japan’s top law official than one might expect. While in the U.S. it would be considered irregular to appoint an attorney general who lacked experience as an attorney, many Japanese justice ministers have come from other fields, including engineering and nursing.

This comparison overlooks a very fundamental difference between the US Cabinet, which can consist of whomever the president can push through the Senate, and the Japanese Cabinet, the majority of which has to be comprised of legislators. Pretty much all Japanese Cabinet members, including the Justice Minister, come from a single background: the Diet. They get to the Diet in different ways, but they never walk straight from a drawing board or operating room to head up the Justice Ministry.

It also overlooks a very fundamental difference in the two posts. The Japanese Justice Minister has practically no advisory role, whereas the US Attorney General is expected to give legal advice to the President and the Cabinet. The Justice Minister has few formal duties, and they only personally carry out one of those duties: administration of the death penalty. Other duties, like stamping foreigners’ entry permits and representing the state in court, get delegated in practice to much lower-ranking bureaucrats, and the minister’s theoretical oversight of the prosecutor corps is rarely exercised.

Despite all these differences, full-fledged lawyers still get to be Justice Minister on a fairly regular basis. Chiba is the fourth Justice Minister in this decade (out of eleven) to have a bengoshi qualification. The previous three were, of course, all LDP people (Okiharu Yasuoka, Masahiko Komura and Seiken Sugiura).

For decades Japan had the fewest lawyers per capita of virtually any developed nation, but that is changing. The country now has nearly 29,000 lawyers, a figure that has roughly doubled in 15 years. A law-school system introduced in 2006 has opened the doors wider to the profession.

Now we’re talking about bengoshi, not benrishi. Kan’s qualification has pretty much nothing to do with law school.

Law school also has little to do with the slowly-rising number of lawyers. Entry to the bengoshi profession is strictly a function of the bar exam pass rate, which was extremely low (3% or so) under the old bar exam which required no graduate school, and is still only one-third or so for people who have finished three years of law school under the new licensing system. The exam is full of tricky questions which effectively require the exam taker to memorize all the central statutes of the Japanese legal system as well as the key precedents and scholarly arguments surrounding each one. Other law licenses like benrishi have similarly onerous exams, though no others force people to sit in school for three additional years just to have a one-out-of-three shot at the license.

In all of these cases, the doors could be opened wider by making the exams more practical, but the exams are designed to create a high barrier to entry. As a result, the people who pass these exams tend to be the type of people who could not be bothered with going into a corporate or government job straight out of university, and they tend to stay in private practice rather than joining large institutions–which, as we know, hold all the political power in Japan.

In contrast, US bar exams are designed to mint larger numbers of lawyers, with a passage rate between 80% and 95% in most states. The passage rate is lower in some states where people can take the exam without going to law school, such as California (where apprenticeship study and unaccredited law schools are both options) and New York (where foreign lawyers and law graduates can sit the exam with a certain minimal level of US legal training). They test a narrower range of law and are generally meant to check a person’s reasoning skills rather than knowledge of the chapter and verse of the law.

And with more than 4,000 women lawyers (up from a mere 42 a half-century ago), Japan may be closer to having a pair of lawyers someday as its first couple, following in the footsteps of Bill and Hillary Clinton and Barack and Michelle Obama.

Yuck. One lawyer is more than enough.

The crime of “blasphemy”

The Kishin Shinoyama nude-photos-in-Aoyama-Cemetery story which Curzon mentioned earlier this year has finally come to a close, with the photographer ordered to pay “¥300,000 in fines for public indecency and blasphemy.”

Wait a minute… blasphemy? How could that possibly be a crime in such a non-religious country?

Go go gadget Criminal Code!

(礼拝所不敬及び説教等妨害)
第188条 神祠、仏堂、墓所その他の礼拝所に対し、公然と不敬な行為をした者は、6月以下の懲役若しくは禁錮又は10万円以下の罰金に処する。
2 説教、礼拝又は葬式を妨害した者は、1年以下の懲役若しくは禁錮又は10万円以下の罰金に処する。

(Disrespect of Places of Worship and Disturbance of Preaching, Etc.)
Article 188. A person who has committed an open and disrespectful act toward a shrine, temple, graveyard or other place of worship shall be sentenced to imprisonment at labor or confinement for six months or less, or a fine of 100,000 yen or less.
2. A person who has disturbed preaching, worship or a funeral service shall be sentenced to imprisonment at labor or confinement for one year or less, or a fine of 100,000 yen or less.

So there you have it; messing with religion is a crime in Japan. It doesn’t seem to be prosecuted that often, though: the various crimes against religion don’t even merit a line item in the Justice Ministry’s annual prosecution statistics.

Fneeter

フニーターとは、最低限の労働しかしないフリーターのこと。
A fneeter is a “freeter” who only does a minimal amount of work.

That’s from the Nihongo Zokugo Jisho website.

I think this is the first Japanese word I’ve heard of which is derived from two Japanese words both derived from English (“フリーター” and “ニート“). Are there other examples I’m overlooking?

Mapping the US forces in Japan

With all the recent hubbub about the relocation of Marine Corps Air Station Futenma in Okinawa, it seems like an opportune time to unveil a little project I’ve been working on: a Google map of all the US military facilities in Japan. Okinawa is, of course, the most dramatically colonized region by a long shot.


View US military facilities in Japan in a larger map

But equally interesting is the Tokyo area, which contains a number of huge and not-so-huge American outposts.


View US military facilities in Japan in a larger map

This is still a work in progress, as facility names, locations and borders can be occasionally hard to pinpoint without being on the ground or on the inside, so comments are welcome.

Another Obama appointment, another kabuki metaphor

This time it’s Elena Kagan, this time the culprit is Colorado Law professor Paul Campos speaking on NPR, this time it’s a “ritual,” and as always we are here to call them on it.

I think that to the extent that it’s possible to eventually support this nomination, it has to be based on her answering real substantive questions in the confirmation process instead of going through this kind of kabuki ritual of dodging those kinds of questions, which is what nominees have so successfully done for the past 20 years.

This is, of course, the same metaphor that Joe Biden used in the context of the Sotomayor confirmation hearings, as blogged about on MFT before.

And so I will say it again: if you’re going to compare Washington to any sort of Japanese theater, you’re probably best off comparing it to bunraku.

France, China, Arizona and Narita all want to see your papers

There are two inspirations for this post. The first is a recent blog post by James Fallows (who is exactly the person I would have become if I became a “real” journalist) at The Atlantic: Essay Question: Is AZ More Like China — or Like France? Amid discussion of the new illegal-immigrant-weeding laws in Arizona, specifically the fact that Americans don’t generally have to carry ID around with them, one Fallows reader in France chimes in:

The French must always have their National ID card on them – for the police can demand to see it at any and all times.

Foreigners, in principle, must always have a piece of ID on them – like a passport. I never carry this with me – in 14 years of living here, I’ve never had my passport on me except when I’ve been on my way to the airport and going abroad. But I’m white and look (sometimes sound) French of Gaullish stock. The police, in the vast majority of cases, stop and demand ID papers from youngish (under 40) males of African or Arab descent, be they French nationals or no.

It is not a well-looked upon practice of the police, but the French aren’t adamant enough against it to seek its abolition. As far as I understand, such identity checks have been a long staple of police work in France going back to the Revolutionary/Napoleonic era wherein the State underwent a reinforcement of its prerogatives over the citizenry.

Japan falls in between the American and French models: Japanese citizens are not required to carry ID, but foreigners in Japan have to carry a passport or alien registration card at all times, and the police have a habit of carding visible foreigners at random. Until last month, this had only happened to me a couple of times when I was bicycling around Tokyo, and one of those times I was able to shake off the cop by simply saying I was in a hurry.

Inspiration number two. Last month, six of my family members flew in from the US for the wedding. I took the train out to Narita to meet them on arrival. Their flight arrived 15 minutes ahead of schedule, so I started hustling quickly out of the station to get upstairs to the arrivals hall. A few seconds out of the station gates, a cop with his partner called out to me in English:

COP: Excuse me–(points at watch) Do you have a minute?
ME: (without stopping or slowing down) Nope, sorry. I have to meet someone upstairs.
COP: Oh, OK!

That was the end of that checkpoint, and I proudly announced my triumph on Twitter.

Fast forward a few days, and my family were headed back home, so again I went to the airport to see them off. They checked in before I arrived at the airport, so I met them in the ticketing hall at Terminal 2, and we sat down to relax for a while together before they left.

Two cops appeared from around the corner and made a beeline for the group of seven white people, saying “Excuse me? Passport check?”

My family all had their passports out already, and haven’t read Debito’s website, so they handed the passports over and the police started copying down their names and passport numbers with pencil and paper. I was about to pop, but tried to keep cool.

ME: Can I ask you guys something? There is no way to get into this airport without showing your ID to someone. Why do you have to check it again?
COP: It’s for security reasons.
ME: So you don’t trust the people checking our ID when we get off the train?
COP: Um, do you know what shokumu shitsumon (“official questioning”) is?
ME: I’ve heard of it.
COP: We just ask these questions. Your cooperation is completely voluntary.
ME: Really? You didn’t make that clear at all to my family.
COP: Errrr…. well, we don’t know how to say that in English.
ME: You work in an international airport and you can’t speak English? OK, whatever. I’m not traveling, I’m just seeing my family off.
COP: OK. Sorry to take up your time.

They didn’t check my passport, so it was a lukewarm victory. The police then hit up a couple of South Asians behind us, and disappeared around another corner without questioning anyone else. My father and sister both laughed and said “I think we were just racially profiled” — a bilingual Japanese lady they were talking to apologetically remarked “I don’t know what their problem is.”

About five minutes passed and another pair of police appeared demanding our passports. At this point I popped.

ME: You dumbf—s just asked them for their passports! Don’t you have anything better to do?!
COP: Oh. Sorry!

Strangely, there was no questioning when my wife and I came back the next day for our flight to Europe, or when we came back a few weeks later — though we passed a couple of white backpackers getting carded before going through the train station gates at the airport. I can only surmise that under Japanese law, an East Asian companion may implicitly substitute for a passport or alien registration card. That said, I would not try any similar stunt with European cops, who all seem to have submachine guns, military experience and serious attitudes, unlike their hapless Japanese counterparts.

The Jones hitch-up post-game show: notes on getting married in Japan

I will be traveling over the next few weeks to Austria, Hungary, Italy, Greece and France on a mega-honeymoon with the newly-rechristened Mrs. Jones. Special thanks go out to Roy, the Adamus, Curzon, Younghusband, Peter and his wife, Aceface, Ben, the Gaijin Biker gang, and the many other members of our brilliant cast of characters friends who came to the wedding.

We am getting on a plane to Europe as this goes to press, and I will hopefully be back before long with some good travelogue fodder from this multi-modal, multi-destination itinerary. With that, some topical rambling on the marriage process follows: Continue reading The Jones hitch-up post-game show: notes on getting married in Japan

Thoughts on legal translation

A thread popped up on the Honyaku mailing list today regarding the use of “will” and “shall” in legal documents. I took the rare (for me) step of responding. Since we have many translators in the audience, I’m cross-posting my response here, with a few edits to consolidate another comment in the same thread.

Law is a conservative field, and legal drafting is generally adverse to change, despite whatever trends may be popping up among certain forward-thinking lawyers. “Shall” is still the most common way to set up an obligation in a contract, and is probably the least controversial way to translate a phrase like ~しなければならない or ~するものとする when used for that purpose. There is nothing wrong with using “will” or “must” for this purpose, but it is not really the standard usage.

On which is “better”: It really depends on the subject matter and specific usage in question. I mostly work with institutional financial transactions, where the contracts are all drafted by a handful of large law firms from Word templates, look more or less the same, and they generally use “shall” to set up obligatory commitments. In this context, it would almost be stupid not to say “shall” since that is what everybody expects to see. A consumer contract, on the other hand, might need different language, since a reasonable non-professional may not understand the meaning of “shall” in a particular context.

However, I would never use “shall” for more than one purpose in one contract — that seems to be asking for trouble.

That said, please use consistently different translations for different terms in the original document. For instance, I usually translate ~しなければならない as “must” and ~するものとする as “shall,” regardless of the apparent intent behind the terms.

I say this because there can be hair-splitting in the interpretation of a contract based on inconsistent usage of words like “will” and “shall.” For instance, if the contract usually uses “shall” to create obligations, but inconsistently uses “shall” elsewhere to state a condition or a representation of fact, that inconsistent usage may be relevant in arguing about the contract later. The party reading the translation may want to note that inconsistency or dispute it with their counterparties, but they cannot tell that there is an inconsistency unless that inconsistency is reflected in the translation with similarly inconsistent language.

The same applies to tense. Past tense, present tense and future tense may add nuances to the contract that lawyers will argue about later. If a sentence otherwise sounds like an obligation but is stated in the past or present tense, it may be interpreted as a representation or warranty, which makes a huge difference. (An obligation binds the parties to do something, whereas a representation/warranty is a statement of fact which the parties rely on — the other parties can claim damages from whoever “said” the statement if the statement is incorrect.)

Sadly, there are many contract drafters (both lawyers and non-lawyers, both Japanese and non-Japanese) who fill their contracts with incomplete, inconsistent or illogical terms. As the translator, you should not cover these up — you have to read these documents word-for-word and directly translate any incompleteness, inconsistency or illogicality in the original. Otherwise you are likely hurting your client by concealing the bad drafting of the underlying document.

Deloitte Touche Tohmatsu has a good online glossary of Japanese contract terminology if you want to learn more about the nuances of different terms. Unfortunately, I haven’t come across any similarly straightforward English-language resources. One good “dead tree” book on English contract terminology is “Drafting and Analyzing Contracts” by Scott Burnham (ISBN 0820557889), but it is aimed more at lawyers and law students who want to write contracts, not so much at translators and analysts.

Question: Do you think it would be a good idea to suggest that clients include a definition in English translations of contracts to make it clear that “shall” means “has a duty to” and consistently use “shall” only in that sense?

This is not legal advice for any particular situation, but only a general observation: I see efforts like this in professionally-drafted contracts from time to time, most often when written by lawyers from the Commonwealth countries. To use a tired metaphor, it is a double-edged sword. If you explicitly define “shall” to mean something in particular, it’s much harder to argue that “shall” means anything else, so you have to be especially careful to avoid any other usage of “shall.” If you don’t define “shall,” then you can use the context of the word to argue your way out of any inconsistent usage, by claiming that it was never explicitly limited to any particular meaning.

Perhaps this discussion illustrates the value of getting a lawyer involved in drafting! But in any event, I hope it illustrates the value of keeping original terminology distinctions intact as much as possible.

Things which Japan does not monopolize, despite conventional wisdom to the contrary

  1. Upskirt photography: Police in upstate New York recently ran a sting operation to catch an upskirt photographer in a clothing store, which led to the unsuspecting victim suing the store.
     
  2. Expensive airports that nobody goes to: “Local officials were so confident that tourists would flock to this beautiful, mountainous county in southwestern China that they made the terminal big enough to accommodate 220,000 passengers annually, and built a runway capable of handling a 140-seat Boeing 737. But only a few charters and budget carriers have established service here. A grand total of 151 people flew in and out of Libo last year.
     
  3. Whaling: See this piece in The Economist, then Wikipedia for the breakdown.
     

Did I miss anything?