Common law constitutionalism and its counterpart in Japan.

Author:Shimizu, Jun

    In the Anglo-American legal tradition, there are ideas that the common law restrains governmental power, that common law reasoning influences constitutional arguments, and that common law rights are incorporated into a constitution. We can call these ideas "common law constitutionalism." (1) For instance, when Sir Edward Coke (Coke) rebutted absolute monarchy in seventeenth century England, he thought that even a king or the British Parliament could not arbitrarily overrule the common law. He said, as a judge in the Court of Common Pleas, that "when an Act of Parliament is against Common right and reason, or repugnant, or impossible to be performed, the Common Law will controll [sic] it, and adjudge such Act to be void. ..." (2)

    From then on, common law lawyers have thought that the common law is reason accumulated since time immemorial. (3) Many generations have made the common law over hundreds of years; therefore, lawyers consider the common law to be their collective wisdom. (4) Common law constitutionalism tends to think of the common law rights as fundamental; as a result, jurists believe that common law rights and constitutional rights are deeply related. This type of constitutionalism assumes constitutional rights are derived from the common law. (5) Furthermore, reasoning in constitutional cases is also derived from common law reasoning. (6)

    Common law constitutionalism has various aspects. In this Article, however, I would like to define common law constitutionalism as follows, and I will use the term only in this way. According to common law constitutionalism, the long-accumulated wisdom of lawyers, which is mainly derived from ordinary civil and criminal cases, acquires constitutional status even if it is not explicitly enumerated in a written constitution. It is not based on temporal wisdom but based on long-accumulated wisdom. (7) It appraises lawyers' professional knowledge, not laymen's will. (8) Common law constitutionalism is derived from ordinary civil and criminal cases, not from constitutional cases, in its narrowest sense. (9) Moreover, a textual basis in a written constitution is not important. Common law constitutionalism assumes that such long-accumulated professional wisdom acquires constitutional status, which means that it can be used in judicial review or it can restrain arbitrary governmental power.

    It is easy to suppose that common law constitutionalism can only exist based on the long-established common law tradition in Anglo-American countries. This Article argues, however, that a similar conception exists in Japan, a typical civil law country. Lawyers respect the legal wisdom accumulated through long time practice even in a civil law country. Such wisdom tends to be incorporated into constitutional principles. Common law countries do not monopolize the basic idea of common law constitutionalism. The purpose of this Article is to introduce constitutional practice of and constitutional cases from Japan and then analyze them from the perspective of their resemblance to common law constitutionalism. So far, previous American and Japanese studies have not analyzed them from this perspective; therefore, this Article contributes to a new understanding of Japanese constitutional law and comparative law. Furthermore, this Article reveals that the civil law and the common law traditions are not as different as we usually assume.

    Part II of this Article examines the conception of a constitutional right in common law constitutionalism mainly by using historical sources. From seventeenth century England to nineteenth century America, the common law and a constitution had a deep relationship. Anglo-American lawyers thought that the common law could restrain governmental power and the common law had constitutional importance. Part iii considers Japanese constitutional cases following the principles of common law constitutionalism. For instance, it discusses cases in which the Supreme Court of Japan seemed to think that long-established rights embedded in basic legal practice are worth constitutional protection.


    1. Common Law Thought in England Before the American Revolution

      In this Part, I examine common law constitutionalism in Anglo-American legal history. From seventeenth century England to nineteenth century America, the common law had a constitutional status, that is, the common law restrained arbitrary governmental power. (10) Moreover, the common law rights were incorporated into constitutions, and therefore the principles of the common law were used in judicial review. (11)

      The common law had developed since the age of the Norman dynasty and was viewed as "the general custom of the realm." (12) According to recent studies, the theorization of the common law began in seventeenth century England. (13) In order to rebut absolutism, common law lawyers like Coke developed a sophisticated understanding of common law theory. Their theory is now known as "[c]lassical common law theory." (14) Classical common law theory saw law, by definition, as unwritten and "immemorial custom" based on reason and the consent of the people and the common law was considered to hold continuance from the ancient Saxon era. (15) If law was not a command of a king but a long continuous custom, a king could not freely make law according to his will. Therefore, classical common law theory could be a strong refutation of the thesis of the king's prerogative to make law freely. (16) Seventeenth century common law lawyers like Coke invented this classical common law theory, and later Sir Matthew Hale and Sir William Blackstone (Blackstone) sophisticated and developed it. (17) Furthermore, classical common law theory deeply influenced Edmund Burke's political philosophy. (18)

      The most important feature of classical common law theory was its peculiar definition of law. It defined law as unwritten and "immemorial custom." (19) Blackstone held as follows:

      That antient [sic] collection of unwritten maxims and customs, which is called the common law, however compounded or from whatever fountains derived, had subsisted immemorially in this kingdom; and, though somewhat altered and impaired by the violence of the times, had in great measure weathered the rude shock of the Norman conquest. (20) As a result of this definition of law, the exponents of this approach applauded the common law and distrusted statutes and any prerogative of a king. Customs were seen as reasonable because they had lasted for a very long time. If a custom was unreasonable, people and lawyers just ceased using it and it lost its customary status. (21) By contrast, common law lawyers thought that statutes or prerogatives never had such a basis of reasonableness because these laws could be made by only one lay person in one night. (22) The common law is accumulated wisdom from over a long time. Its long continuance proves its excellence. (23) Blackstone said that ancient rules had survived in spite of various innovative attempts to abolish them because they were reasonable:

      [I]t hath been an antient [sic] observation in the laws of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation. (24) In addition, the common law was not only customary law but also the product of many generations of jurists who made it over thousands of cases. Coke said as follows:

      [I]f all the reason that is dispersed into so many severall [sic] heads were united into one, yet could he not make such a Law as the Law of England is, because by many successions of ages it hath been fined and refined by an infinite number of grave and learned man, and by long experience growne [sic] to such a perfection, for the government of this Realme [sic], as the old rule may be justly verified of it ... No man (out of his owne [sic] private reason) ought to be wiser than the Law, which is the perfection of reason. (25) The common law was excellent because it was a perfection of many lawyers' professional reason, which had accumulated since time immemorial. By contrast, any statute and prerogative were devoid of such reasonableness; therefore the common law was seen as a law superior to them. (26) Blackstone said that "almost all the perplexed questions, almost all the niceties, intricacies, and delays (which have sometimes disgraced the English, as well as other, courts of justice) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament. ..." (27) The common law was "the accumulated wisdom of ages," (28) and therefore legitimacy of the common law outweighed statutes. (29) Coke's words that "when an Act of Parliament is against Common right and reason, or repugnant, or impossible to be performed, the common law will controll [sic] it, and adjudge such Act to be void" (30) should be understood in this context. Coke's argument is one of the most famous examples of common law constitutionalism. Here, the old common law can restrain arbitrary governmental power.

      After the Glorious Revolution in England, the principle of parliamentary sovereignty was established. (31) As Blackstone wrote, "[t]he power and jurisdiction of parliament, says Sir Edward Coke, is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. ... It hath sovereign and uncontrolable [sic] authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws. ..." (32) Because of this, the idea of supremacy of the common law has not been predominant in the United Kingdom. As I discuss below, however, this idea subsisted in the United States. (33) In classical common law...

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