Judicialization of politics and the Japanese Supreme Court.

• Author: Matsudaira, Tokujin
• Position: Response to article by Shigenori Matsui in this issue, p. 1375 - Symposium: Decision Making on the Japanese Supreme Court

1. INTRODUCTION: GERMAN LEGACY

   In his Article, Professor Matsui provides us with a general explanation of judicial conservatism in Japan. (1) He points out that the Supreme Court of Japan is self-restrained because it is staffed with Justices who share a collective mentality of self-restraint. He also argues, among other things, that this kind of "judicial passivism" has its root in "traditional German constitutional philosophy"--that is, the positivist interpretation of the written constitution that was dominant in prewar Japan.

   I agree with Professor Matsui's observation that the doctrines and standards of review the Court has adopted in the name of Americanization are disguises of the fin de siecle German conceptual jurisprudence. (2) This statutory positivism, which was preconditioned by legal-political philosophy specific to German nation building, discourages public lawyers from questioning the legitimacy of government. (3) Instead, it requires them to apply systematized juristic propositions prescribed in statutes to concrete cases and controversies regarding infringement of rights. The Dogmatik can be applied in a very liberal or conservative fashion, but is itself everlasting. (4)

   I hesitate, however, to overestimate the dogmatic character of Japanese conservatism. The German heritage theory cannot account for why Japanese Justices did not follow a different constitutional philosophy like that adopted in today's Germany, which favors more judicial control of politics through constitutional adjudication. (5) It is apparent that what controls the Japanese high court's "conscience" is something else lurking in its dogmatic judgments. (6)

   In contrast to Professor Matsui, I argue that the Japanese conservatism is ostensible. We should look at the "rationale for rationale"--that is, an invisible constitution that invests government activities with a comprehensive presumption of constitutionality. According to the organic theory of state, the limit of government powers lies in the government's abuse of power, rather than its lack of authority. By contrast, individual rights function as a trump that exempts citizens from excessive government interference, and that is why their definition should be left to the judiciary. (7) Indeed, the Japanese Supreme Court is reluctant to "judicialize" politics when rights and entitlements of the citizen are not at stake.

2. JUDICIALIZATION OF POLITICS AS DEPOLITICIZATION

   1. Judicialization of Politics

      In general, judicialization of politics means judicial review of policy making over the composition of government. (8) Some scholars even go further to define it as "the ever-accelerating reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies." (9) Though it is a phenomenon accompanied by the adoption of constitutional courts, judicialization of politics does not necessarily result from the U.S. model of judicial review. For example, France and Germany, which tutored Japan in modern nation building, intensify judicial control of government activities by expanding their own constitutional review. (10) Thus, judicialization of politics does not necessarily mean the globalization of the U.S. judicial review. Rather, it denotes national responses to the emerging judicial constitutionalism that intends to impose a rule of lawyers on the political process.

      There are criticisms, of course, toward judicialization of politics. Recent research shows that courts are coming to judicialize "megapolitics," "matters of outright and utmost political significance that define and divide whole polities." (11) However, they achieve these goals not by giving their "sober second thought" that rouses the drunken political community, (12) but rather by relying on technological doctrines that are alien to other political actors. For lay critics, this indicates a hypocritical attempt of depoliticizing democracy by the oligarchic elite.

   2. Depoliticization

      Professor Ranciere, a French political philosopher and critic of judicial review, identifies judicialization with bureaucratic depoliticization. He argues that judicial review prevents the popular struggle for democracy--the subjectification of those who are excluded--from being politically activated. (13) The modern state's subordination to judicial review is, he says, actually subordination of the political to the administrative, which means "the exercise of a capacity to strip politics of its initiative through which the state precedes and legitimizes itself." (14) He argues that the "constitutionality checkup" (i.e., judicial review) does not really mean the submission of the legislative and the executive to the "government of the Bench": "This is really state mimesis of the political practice of litigation. Such a mimesis transforms the traditional argument that gives place to the show of democracy, the internal gap in equality, into a problem that is a matter for expert knowledge." (15)

      The essence of Professor Ranciere's argument is that what the "judicialization of politics" really means is the depoliticization of constitutional democracy by the bureaucratic state. Interestingly, though his criticism is crafted in unjuristic, post-modernistic terms, it merely reflects the orthodox understanding of French constitutionalism. That is, French democracy is so centripetal that it enables a bureaucratic government to "monopolize and depoliticize the public sphere" in the name of statutory law, which is deemed to represent the general will of the sovereign people. (16)

      By "centripetal," I mean a tripartite combination: the legal homogeneity of society, monopoly of legitimacy by the democratic state, and centralized structure of government. (17) The French model lays down a sovereignty of statutory law. Moreover, until recent constitutional reform, civil rights in France were defined as "public liberties," ensuring a citizen that he or she has a part in res publica, i.e., the political process. Because it was the statute that defined the rights and made them enforceable, the idea of a statutory violation of rights per se was a contradictio in adjecto. Therefore, anticipating...