Judicial decision making in Japan has become a topic of considerable interest for at least the cadre of comparative lawyers whose primary concern is constitutional law. Such interest is to be applauded. Comparisons with Japan are always beneficial, in that they require a departure from the prevailing focus on the United States and Western Europe. Broadening the scope of comparison to include Japan, the premier non-Western industrial democracy for over a century, avoids at least some of the significant pitfalls of Eurocentric analyses that too often tend to mislead as much as to edify. The inclusion of Japan in comparative legal analyses forces explicit recognition of assumptions and premises related to legal systems that are frequently left unstated and merely, mistakenly, assumed as universally valid. Japan's inclusion thus leads to a more complete and arguably more accurate appraisal of factors and issues that should be included but might otherwise be ignored.
Many, if not most, accounts of decision making by courts in Japan-- especially in cases involving constitutional questions--describe the outcomes as "conservative" and so label the judiciary. (1) The most frequently noted support for such conclusions is the relative dearth of cases in which the Japanese courts have held legislative and other state actions to be unconstitutional. (2) Rarely if ever do critics engage in any in-depth comparative analysis of constitutional cases and their context in other industrial democracies. The relative paucity of decisions invalidating legislation and other state actions as unconstitutional has been the principal, if not exclusive, point of departure in attempts to explain the now apparent "conservatism" or, indeed, the proclivity of judges, particularly the fifteen Justices who occupy the bench of the Supreme Court, to defer to the political and administrative branches of government. I disagree.
I do not take issue with the ultimate conclusion that judges in Japan are "conservative." Indeed, I have previously described the judiciary in similar terms. (3) My quibble is with the meanings given the terms and the explanations of the cases and their outcomes. In other words, I question the prevailing--or at least the most widely disseminated and influential-- analyses of judicial decision making in Japan. The assertion that Japanese judges in constitutional cases are more likely than their counterparts in the United States or Western Europe to defer to the legislature or to administrative agencies requires painstaking comparative analyses of the outcomes of like cases--instances in which career judges and Justices in Japan have refused to invalidate legislation or administrative actions that have or would have been deemed unconstitutional in the United States and western Europe. Citing mere numbers does not suffice. A threshold problem, as explained below, is that there are few, if any, truly like cases. A principal aim in this essay is to show why this is so and, in so doing, why invalidation of legislation or administrative regulations on constitutional grounds has been relatively rare in Japan. In the process, I hope to add some additional thoughts to the discussion of constitutional adjudication in Japan.
The starting point for any comparative study of constitutional adjudication must be the constitutions themselves. Differences in constitutional provisions--particularly constitutional guarantees and protections of individual rights--must first be taken into account. Three provisions of the Japanese Constitution well illustrate this point. The first is the freedom of occupation guarantee of Article 22, which provides that "Every person shall have freedom ... to choose his occupation to the extent that it does not interfere with the public welfare."
The provision is a German law borrowing from the "freedom of occupation" (berufsfreiheit) provisions of articles 111(1) and 151(3) in the weimar Constitution, currently incorporated in article 12(1) of the 1949 Bonn Basic Law. It was included, despite the lack of any U.S. counterpart, in the draft of the steering committee, chaired by Charles L. Kades and delegated by the Supreme Commander of the Allied occupation (SCAP), that was charged with writing a "model" constitution for postwar Japan. A second provision, which not only has no U.S. parallel but was initially rejected by Kades and later inserted as an amendment during Diet deliberations, (4) is Article 17, which provides: "Any person who has been injured [damaged] by a delict [tortious act] of a public official shall be able to claim compensatory damages from the state or a public entity as provided by law." (5)
Equally significant for comparative purposes, no industrial democracy has any equivalent to Article 9 of the postwar Constitution, which provides:
Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. 2) In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized. Personally drafted by Kades, the provision as enacted includes prefatory language added during the deliberations in the Diet. (6) Over the past six decades, hardly any constitutional provision has been as contentious or subject to as many judicial decisions. The constitutionality of the U.S.-Japan Security Treaty, of U.S. bases in Japan, and of the Self-Defense forces have been among the most frequently litigated constitutional issues of postwar Japan.
Routinely ignored by Western critics of the "conservatism" of the judiciary are cases in which at least the first two of these provisions have been applied. The first is the Pharmacy case, (7) in which the Court in effect--but without explicit acknowledgement--overruled a 1955 Grand Bench decision in the so-called Bathhouse case. (8) The 1975 decision invalidated a licensing standard for the location of a pharmacy as an infringement on the "freedom of occupation" of Article 22. A more recent case is the Grand Bench 2002 decision in Nanafuku Sangyo K.K. v. Japan, (9) in which the Court unanimously held unconstitutional provisions of the Postal Services Law exempting or limiting the tort liability of the state for registered mail where a loss has occurred as a result of the intentional acts or gross negligence of a postal worker. (10) The decisions in both cases serve as telling reminders that the Court has reached decisions that are considerably more classically "liberal" or "libertarian" than those by its U.S. counterpart. (11) Discussed below are the Article 9 cases on which much of the commentary regarding the "conservatism" of the courts hangs.
In addition to such substantive constitutional differences, three clusters of fundamental factors, in my view, best explain national contrasts in constitutional adjudication. The first and broadest is historical context. Societal differences in historically evolved, broadly shared values and beliefs surely account for the dearth of state regulation--much less constitutional cases--in Japan (and East Asia in general) on abortion and in the west on enhanced penalties for crimes against lineal ascendants. (12) Fundamental differences in historical experience--particularly violent social and political conflict--since at least the sixteenth century, have created equally profound differences between Japan and the west with respect to the nature and extent of contentious contemporary social and political issues. Not since the sixteenth century has Japan experienced anything akin to the social and political strife that engulfed western Europe from the late eighteenth century through the mid-twentieth century. Nor has Japan ever experienced chattel slavery. Many of the constitutional issues adjudicated in contemporary Europe and the united States reflect the legacy of these conflicts and their underlying causes.
Distinctive features of Japan's historical experience also explain the relative lack of a widely shared belief among the Japanese in universally applicable moral imperatives. The East Asian legal traditions never developed a notion of "natural law" or a notional nexus between law and morality. The word seigi in Japanese (as well as Chinese and Korean), translated into English as "justice," has no legal meaning or connotation in its historical context. Nor, as a European legal transplant, has natural law theory held much sway in Japan. In political discourse, contested social and political issues from property rights to human rights are rarely if ever cast in terms of overlapping moral and legal imperatives. Instead of any shared belief in universally applicable, transcendental absolutes, Japan is notable for its distinctively contextual communitarian orientation and emphasis on consensus as a shared social value. Community norms, not transcendental norms, are what matters. (13) These cultural attributes are, as indicated below, particularly significant in an analysis of judicial decision making.
In addition, unless we are willing to challenge the efficacy of the democratic political structures of postwar Japan, we surely must concede that the Japanese people overwhelmingly favor center-right political policies. Center-right political parties (and party factions) have governed Japan almost continuously during the six-and-a-half decades since world War II. The only arguable exception was the ill-fated Katayama Cabinet, formed in 1948, that remained in office for only six months. Judges whose political inclinations lie well to the left of center are necessarily relatively few in number, unless, of course, one surmises (tacitly) that elites in Japan, including judges, are likely to be more ideologically to the left than the mainstream...