Legalism

Closely related to the phenomenon of Todai dominance in the higher civil service was its markedly legalistic orientation. This was manifested in two related ways: the preponderance of law graduates among the higher civil servants and their preoccupation with formal rules. The popular or journalistic term for this phenonomenon was hoka banno (the omnipotence of law). The emergence of hoka banno was due to a number of circumstances. First and foremost, the decision of the Meiji leaders to emulate the Prussian model and to require legal training as the principal qualification for civil-service appointment was a key contributing factor. The preferential treatment given to Todai law graduates in the early days of the civil service was another. In fact, within Todai itself, the faculty of law (hogakubu ) enjoyed the status of primus inter pares: in the 1880s its dean served concurrently as the president of Todai. He was also empowered to supervise all other law schools that had come into being in Tokyo, of which there were five.^[32]

The subjects in which candidates were tested in the higher civil-service examinations were predominantly law-related. The administrative examinations from 1894 to 1928 had six required subjects: constitutional law, administrative law, criminal law, civil law, international law, and economics. In addition, candidates were required to select one subject from a set of four electives: criminal procedure, civil procedure, commercial law, and finance.^[33] From 1929 to 1941, criminal law and international law were dropped from the list of compulsory subjects; instead, they were added to the greatly expanded list of elective subjects. The other subjects that were newly added were political science, political history, Japanese history, economic history, agricultural policy, industrial policy, social policy, ethics, logic, sociology, psychology, philosophy, and Japanese and Chinese literature. Candidates were required to choose three subjects from the preceding

[32] "Tokyo Daigaku no hyakunen" Henshu Iinkai, Tokyo Daigaku no hyakunen, 1877-1977 [Hundred Years of the University of Tokyo, 1877-1977] (Tokyo: Tokyo Daigaku Shuppankai, 1977), pp. 85-93. From 1886 to 1919 the Faculty of Law was called the College of Law (Hoka Daigaku ).

[33] Spaulding, Imperial Japan , p. 210.

list.^[34] The 1929 reorganization, then, made it possible for administrative candidates to take only three law-related subjects, instead of five.

The 1937 data examined by Inoki indicate that about 47 percent of the higher civil servants were graduates of Todai's law faculty. If graduates of other law faculties were added, such as those of Kyoto, Tohoku, Kyushu, and Chuo universities, the proportion of law graduates would increase markedly. Of the Todai men in the sample, over 63 percent were products of its law faculty.^[35] Another study, by Hata Ikuhiko, found that a total of 5,969 Todai men passed the administrative higher examinations between 1894 and 1947 and that 94.7 percent of them (N = 5,653) were graduates of its law faculty.^[36]

The legalistic approach to administration spawned and perpetuated by the predominance of law graduates in Japanese bureaucracy was exemplified by extreme stress upon rules and precedents: nearly all important matters of administration, and sometimes even trivial ones, needed to be grounded in law—statutes, ordinances, regulations, or precedents. In the words of Milton J. Esman:

Regardless of the emergency nature of specific situations or social necessity, [the official] construes the absence of specific legal authority as full justification for failure to act; and regardless of common sense, he follows regulations m the letter. This dependence on legality resolves all new operating problems into legal problems which can be met only by the issuance or amendment of regulations. The code of regulations thus increases in bulk and complexity. To those trained to understand them, the provisions of the code become surrounded with an inviolability which frequently overrides in importance the situation they are designed to settle.^[37]

Esman argues that an explanation of the prevalence of legalism and other aspects of prewar Japanese administration in terms of German and Prussian origins is inadequate. For "while many features of German administration were successfully transplanted, others never took root." As examples of the procedures the Japanese failed to emulate, Esman cites the "in-service training of young officials" and "Germany's highly integrated budget system and its flexible central departmental staff organization."^[38] It should be pointed out, however, that the Japanese

[34] Ibid., p. 213.

[35] Inoki, "The Civil Bureaucracy," pp. 296-97.

[36] Hata, Kanryo no kenkyu , p. 17.

[37] Milton J. Esman, "Japanese Administration—A Comparative View," Public Administration Review 7, no. 2 (Spring 1947): 101.

[38] Ibid., p. 109.

did embrace the idea of postentry training, even though it was never fully implemented.

In any event, Esman believes that cultural and societal variables offer better clues to Japanese practices. Whereas, in the United States, the tradition of individual rights, equality, limited government, and utilitarianism helped to foster a distinctly pragmatic approach to administration, such a tradition was conspicuously absent in Japan. On the contrary, Japanese society valued the collectivity above the individual, hierarchy above equality, loyalty to the emperor and the state, and reverence for established authority and traditional ways of doing things. Furthermore, legalism served the interests of the ruling elite in the Meiji period and beyond. According to Esman:

The concept of Rechtsstaat . . . . was adopted [from Prussia] primarily to convince the western world that because all acts of Japanese officials were regulated by a strict rule of law, extraterritoriality could safely be withdrawn. Legalism, however, had other important uses for Japanese officialdom. It provided them a detailed and intricate mystery which only initiates into the legal priesthood could properly understand. By making government a complex web of administrative regulations, by thus establishing the indispensability of legal learning, the Samurai and their successors have protected their monopoly of higher administrative positions and preserved the power of the bureaucracy against possible assault by the military, the nobility, the financial clique, or the political parties.^[39]

Although quite plausible, these ideas are necessarily speculative; credible evidence with which to test their validity is not readily available. Nonetheless, the salience of legalism in the prewar Japanese bureaucracy is beyond challenge, and its deleterious effects are widely recognized.