The Japanese Constitution as law and the legitimacy of the Supreme Court's constitutional decisions: a response to Matsui.

• Author: Martin, Craig
• Position: Article by Shigenori Matsui in this issue, p. 1375 - Symposium: Decision Making on the Japanese Supreme Court

1. INTRODUCTION

   It is notorious in the area of Japanese legal studies that the Supreme Court of Japan has held legislation to be unconstitutional in only a handful of cases since the Constitution was promulgated in 1947. (1) This feature of its jurisprudence is viewed as being rather remarkable when compared to the records of the high courts in other liberal democracies, and in light of the relatively robust array of individual rights enshrined in the Constitution of Japan. It has been the subject of much scholarly analysis and criticism. In his Article Why is the Japanese Supreme Court so Conservative?, Professor Shigenori Matsui explores the many arguments that have been advanced over time to explain this aspect of Japanese constitutional law, which Matsui calls the Court's "conservative jurisprudence." (2) Many of these arguments are not new, of course, but his compilation and summary of the analysis is nonetheless very helpful. (3) Within this review, however, Matsui advances a new argument and isolates it as being one of the most important explanations for the Court's reluctance to strike down legislation as unconstitutional--that the judges of the Supreme court tend not to understand the constitution as being a source of positive law that requires enforcement by the judiciary. (4) He argues that most of the judges view the constitution with some distrust and suspicion, and understand it to be more of an articulation of political and moral principles than a source of law. (5)

   This argument makes an important contribution to the literature on the Supreme Court's apparent conservatism, passivity, weakness, or timidity, depending on how one explains its reluctance to enforce the constitution. It offers up a very different kind of explanation than most of the other claims about the Court's conduct. Rather than being an account based on reasons that are primarily political, institutional, or cultural, it is very much a critique grounded in the judges' approaches to and employment of legal principles. It is an argument that examines the conduct of the court as such, assessing it on the basis of how it applies and interprets its decisions as a legal institution, rather than analyzing the court as simply one of several political institutions vying for power and authority within a competitive political system.

   As a primary explanation for the Court's conduct, this argument is both new and potentially important. And in this short response to Professor Matsui's Article, I would like to suggest that the significance of his central argument can be further highlighted by reframing his central question and thereby shifting slightly the focus of the inquiry. it should be understood that there is, after all, a normative component to Matsui's argument. He not only asks why the court is so conservative, and answers that it is so because the judges do not sufficiently respect the constitution as law, but he is also implicitly arguing that such failure to understand the constitution as law is wrong, and that the reluctance of the court to enforce the rights in the constitution is improper. it is ultimately a normative argument aimed at changing the way the court decides constitutional cases.

   While I think that Professor Matsui's explanation is important and powerful, I want to suggest that reframing the question, and thus the nature of the argument, can help to strengthen his claim regarding the Court's understanding of the Constitution. Perhaps more importantly, such shifting of the focus can help to create a more powerful set of arguments aimed at creating pressure for change. in short, rather than ask why the court is so conservative, I would suggest that we ask whether the Court's constitutional decisions are legitimate. For reasons that I will explore in Part ii, it may be somewhat misleading to characterize the court and its conduct as being "conservative," just as it is not that helpful to debate the level of a court's alleged "activism." (6) In the debate on the appropriate role of courts in the United States, it has been argued that it is more fruitful to consider the extent to which the court's judgments are legitimate, based on clearly articulated criteria for legitimacy, rather than engage in discussion about the extent to which courts are "activist." (7) Similarly, to ask whether the Supreme Court of Japan's decisions are legitimate is to turn the focus from making inferences about the operation of forces external to the Court, the nature of the court as an institution, or the character or ideology of its judges as people, to the manner in which the judges actually reach their decisions and explain their judgments. And reshaping the question in this way brings into much starker relief the significance of Matsui's argument regarding the failure of the judges to take seriously the Constitution as a source of positive law.

   In Part III of this Article, I will review briefly two different approaches to analyzing the legitimacy of a court's decision-making process in cases involving fundamental constitutional rights, based on two different but well-established theories of rights and judicial review. The first is grounded in a theory of substantive rights and the application of the proportionality principle in the judicial review of fundamental constitutional rights, while the second is a process theory approach to assessing legitimacy. under both approaches, it is accepted that there is no one definitively correct answer to any given constitutional issue, but it is claimed that there are nonetheless criteria against which we can assess whether a decision falls within a reasonable range of legitimate responses. or, to put it another way, any particular decision can be analyzed for the purpose of determining whether the reasoning and ultimate result of the court's decision is sufficiently consistent with the theoretical principles that inform our understanding of rights and the function of constitutional judicial review.

   The suggestion is that a systematic analysis of the decisions of the Supreme Court of Japan in constitutional rights cases, in accordance with either of these approaches, may reveal that a significant percentage of the Court's judgments are lacking in legitimacy. This short Article is not the place for such a comprehensive analysis, of course, but in Part iv of the Article, I examine one recent equality rights decision of the Supreme Court, the Tokyo Metropolitan Government case, and illustrate how such an assessment of a judgment's legitimacy might be conducted. The exercise suggests that both the reasoning and the result of the Court's judgment quite clearly fail to meet the legitimacy requirements under either the proportionality or the process theory approach. Moreover, the reasons provide quite explicit evidence that some of the judges understand the individual rights in the Constitution as being something other than positive law to be enforced by the courts.

   The point is not, of course, that all of the Court's constitutional jurisprudence is illegitimate. The Court has in fact recently handed down decisions in the equality rights context that suggest that it may be developing a more sophisticated, and ultimately more legitimate, approach to constitutional rights cases. (8) But if a significant number of constitutional cases can indeed be shown to lack legitimacy, and more particularly one can show precisely how they lack legitimacy, it could provide powerful evidence in support of Professor Matsui's claim that many of the judges simply do not accept the Constitution as positive law. More importantly, because Matsui's claim is one that essentially focuses on how the Court understands and employs legal principles, an approach that redirects the inquiry more specifically toward how the Court decides cases, rather than focusing on the nature of the results, may be more effective as a normative argument for change. in particular, reformulating the inquiry in this way will likely lead to a much more powerful and detailed criticism of how the judges conduct themselves in the decision-making process. if one accepts the proposition that how the judges apply legal principles and develop doctrine matters, as Matsui's claim clearly does, refocusing the analysis on the illegitimacy of the decision-making process is more likely to advance the normative aspect of his argument and create greater pressure for effective change.

2. CONSERVATISM OR LEGITIMACY?

   1. Problems with the Conservative Label

   Professor Matsui is certainly not alone in arguing that the Japanese Supreme Court is conservative, and that it is excessively so. But what, precisely, is meant by saying the Court is conservative? I would suggest that the term, used in the context of an analysis of the court's decision making, suffers from an ambiguity that tends to blunt the power and significance of Matsui's central argument. The ambiguity begins with the fact that the term conservative, even when applied to the jurisprudence and conduct of a particular court, has several distinct and quite different meanings. In criticism of the Supreme Court of Japan, it tends to be used primarily to mean that the Court is overly deferential to the government and the Diet in its decision making, in refusing to strike down legislation and invalidate government action for being in violation of the Constitution. In this sense, conservative is the polar opposite of "activist," a term frequently employed to criticize courts for being insufficiently deferential to the democratically elected branches of government and engaging, so the argument goes, in the "making of law" as opposed to the mere interpretation and application of the law. (9) But even within the context of this activist-conservative spectrum, the term conservative can have different facets, sometimes meaning deferential to the government and legislature, while at other times meaning minimalist...