The role of precedent at Japan's Supreme Court.

AuthorItoh, Hiroshi
PositionSymposium: Decision Making on the Japanese Supreme Court
  1. JUDICIAL OPINIONS IN JUDICIAL DECISION MAKING

    The question of how a judge decides a case has long captivated judges and court observers. Conceptualists of various kinds have long dominated inquiry in this question in Japan. (1) They construct judicial process in a syllogistic deduction of conclusions by applying law as a major premise to fact as a minor premise. They are also convinced that judicial opinions explaining a judicial holding contain ratio decidendi and sometimes obiter dicta, and critically comment on the propriety of judicial opinions on the basis of their own value judgments. Given the fact that precedent emerges out of judicial decisions, they would argue that judicial interpretations of legal issues, applied to judicially ascertained facts of legal disputes, become the source of precedent for later cases of the same facts.

    The behavioral model of judicial decision-making analysis conceptualizes the judicial process to proceed in the order of fact finding, tentative holding, and rationalization and justification thereof. This model also conceptualizes that this three-stage process continues until a justice has finalized his or her holdings. (2) While justices write their opinions in the most convincing way, the behavioral approach would not assume that written opinions necessarily reveal actual reasons for final decisions in a case.

    The behavioral approach of judicial decision-making analysis has several paradigms. (3) The attitudinal model puts judicial attitude such as liberalism and conservatism as an intervening variable with a legal issue as an independent variable, and judicial voting as a dependant variable. The attribute paradigm puts judicial backgrounds and judicial culture as other important intervening variables. The strategic and rational paradigm focuses on dynamic judicial interactions and probes psychological and sociological determinants in a small group decision-making process. Especially, judicial interactions with their research judges (chosakan) become a major factor in the judicial output. Neo-institutionalism examines the influence of institutional norms and practices within the judiciary, such as gate keeping and procedural norms on court decisions. Finally, the role paradigm puts judicial perceptions of the roles that ustices are expected to play in conflict resolution. The judicial role manifests itself as activism and self-restraint. it also differentiates ustices who frequently invoke precedents and those who sparingly use precedents.

    As applied to the Supreme Court of Japan, these various models have proven to be useful. Relatively large numbers of divided fifteen-member grand bench decisions have enabled researchers to identify bloc formation along the ideological lines of liberalism and conservatism. They have also produced some significant correlation between judicial backgrounds and their voting behavior, as well as the effect of judicial conferences on judicial decision making. Judicial role analysis has discovered predominantly self-restraining grand and petty benches. (4) The present research will examine the effect judicial role has on the use of judicial precedent, as revealed in judicial opinions. some judges consider it their role to be faithful to precedent, while others would consider it their role not to be strictly bound by precedent. it will focus on the complexity of judicial perceptions and their use of precedents as a means of justifying and rationalizing their reasoning. Thus, it becomes worthwhile to closely examine and differentiate the nature and functions of judicial precedent, as seen in the written opinions of the supreme court.

    All jokoku appeals to the Supreme Court are decided in one of the three five-member petty benches. Over ninety percent of appeals are easy cases and are dismissed with a few sentences of reasoning, almost like per curiam opinions written by the United States Supreme Court. Unlike the United States Supreme Court, however, the Japanese Supreme Court does not have certiorari, decides each case on the merits, and writes highly simplified explanations for its judicial holdings. Despite this, occasionally a petty bench writes a very brief majority opinion because it cannot reconcile different reasonings. Furthermore, that bench writes a very brief majority opinion because it does not wish to have its decisions relied on as precedent in the future.

  2. JUDICIAL PRECEDENT

    A judicial decision at the Supreme Court of Japan consists of a judicial holding and judicial reasoning. Judicial holdings may uphold judgments below, reverse and remand for retrials, or reverse and decide at the supreme court itself. in addition to the majority opinion, there may be an opposition opinion, supplementary opinion, minority opinion, or just an opinion. An opposition opinion is a Japanese equivalent to a dissenting opinion in the American practice. A supplementary opinion in Japan would be a concurring opinion in the united states. An opinion and a supplementary opinion would come closest to a concurring opinion in America. subsequently, a precedent emerges out of the majority opinion of a case.

    Theodore Becker regards judicial precedent as one of the most important determinants in judicial decision making. (5) indeed, the common-law belief that law is what a judge or a court says it is reinforces judicial precedent as a source of law. In contrast, Japan is a civil law nation, and judges are expected and required to rely on the codified law. Yet, a selective incorporation of the American legal and judicial system after 1945 has accelerated the use of judicial precedent in the judicial process. It has been believed that precedents, when followed repeatedly, would become a rule of law, contribute to legal stability, and increase the capability to predict future decisions among litigants and lawyers. conversely, a change in precedent would disturb judicial consistency and harm law and order. Many ustices also feel that a change in judicial precedent would adversely impact legal interests of litigants who acted on the basis of the existing precedent, unless such a change were not to be retroactively applied to business practices. indeed, judges at all levels would feel safe and comfortable by going along with supreme court precedents instead of standing up against them, only to be overruled upon appeal.

    The perceptions and attitudes among Justices regarding precedent are elusive and far from clear. On the one hand, there is no statutory doctrine of stare decisis, and each judge is independent in reaching his or her decisions. Each judge is guaranteed judicial independence in reaching his or her decisions and is bound only by the constitution, statutes, and his or her conscience. in theory, a lower court is not bound by the supreme Court precedents and is allowed to contradict the latter's decision. On the other hand, the court law in rticle 4 allows a higher court, especially the Supreme Court, to control a lower court and reverse the latter's judgments. The court has, from time to time, reversed lower court rulings that rule contrary to its own precedents. Even under the Meiji Constitutional order, the Great court of cassation reversed judgments of lower courts. in practice, therefore, judicial precedent has strongly bound not only the judgments of all lower courts, but also the Great court of cassation itself. The supreme court binds its own decision making through its own precedents, and yet seldom does it explicitly change its own precedents.

    Supreme court precedent poses problems for litigants, as well as lower court judges. The court sometimes justifies its own rulings solely on the basis of the precedents it cites, without showing how they are relevant to the instant case. It often simply states that "this interpretation and legal construction derive from the existing precedents of this Court." This practice makes it difficult for litigants and lower court judges to understand how the court relates the present case to its grand bench precedents. Consequently, a litigant often interprets such a precedent--that is, judicial interpretations of legal issues--in such a way as to serve its own interests. In contrast, a litigant's opponent simply states that the ascertained facts in a case are different from those of the precedent, without adequately explaining how the case might be different from the precedent.

    More importantly, judges might use a precedent as a means to justify and rationalize the conclusions that they prestructured. A judicial precedent enables judges to limit, extend, ignore, or overrule a precedent by distinguishing facts and interpreting and applying a precedent in a new case. A reading of a case summary of legal judgments in the collections of supreme court precedents might make one believe that the court states its judicial precedent more broadly than is needed to settle a dispute.

    The Hanreishu [An Abridged Collection of the Supreme Court Decisions] starts with legal issues decided in a case and a summary of the Court's interpretations on each issue. A judicial precedent, as a rule, emerges from the concluding part of the majority opinion of the court. The Court first responds to the appellant's arguments on fact finding and legal issues. Then, it gives its holdings and, finally, the rationales for its holdings. To Justice Sonobe, the final portion of the majority opinion presents the court's definitive authoritative interpretations of legal issues raised by the appellant. On the margins of the majority opinion are found the majority's own notations of such legal interpretations. According to sonobe, the court, as a rule, leaves it to individual ustices to present obiter dicta in their judicial opinions. Research judges, out of courtesy, refrain from using definitive comments on court opinions, but they never make case commentaries merely on the basis of their conjectures.

    Legal issues decided in a case...

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