Stealth activism: norm formation by Japanese courts.

• Author: Upham, Frank K.
• Position: Symposium: Decision Making on the Japanese Supreme Court

As we consider the political and social roles of the Japanese Supreme Court and specifically whether it has a conservative influence, we need not only to define "conservative" but also to think of what roles a court may play in a democratic society. One role that has received a lot of attention in this symposium is constitutional judicial review. Both Professors Haley (1) and Law (2) agree that the Japanese judiciary has exercised a conservative influence in this respect, and Law would probably agree with Haley's summary statement that Japanese courts "do not seek to be the catalysts of social change." (3)

I disagree with the sweeping nature of such characterizations and believe that there are substantial and important exceptions. I have no knowledge of the personal motivations of Japanese judges, so I cannot assert that they seek to change Japanese society, but I do argue that they have done precisely that and, furthermore, that they have done so in a manner that goes beyond what American courts have been willing or able to do. I disagree with Law's argument that Japanese judges are trapped in a bureaucratic cage, I disagree with the assertion that they are the political lackeys of the Liberal Democratic Party as Ramseyer and Rasmusen argue, (4) and I disagree with Haley's argument that they are cautious reflectors of social consensus. Instead, I contend that Japanese judges have played a much more activist role in Japanese society than the American federal judiciary has done in American society, despite the fact that the American judiciary is frequently touted as a paradigmatic example of judicial activism. (5) Perhaps most surprising, given the apparent consensus at this conference, they have done so in a "liberal" direction that has contradicted the apparent desires of the Liberal Democratic Party and the prevailing consensus of Japanese society. No one has noticed, however, for two reasons. First, they have not done so in judicial review, where American observers of judicial activism are trained to look, but in the interpretation of the general clauses of the Civil Code, an area of law that is less clearly in the political spotlight. Second, Japanese courts have not used their injunctive powers to intervene in the operation of governmental bureaucracies and civil society institutions as American courts have in instances such as the affirmative action cases discussed briefly below.

To make this argument, I look at judicial decisions in the areas of employment, divorce, and protection against discrimination. (6) My argument is that Japanese courts are willing to deviate from established doctrine, including statutory provisions, to create social norms that they consider desirable and that they do so under circumstances where American courts would refrain because of considerations of the appropriate judicial role.

1. JUDICIAL SHAPING OF RELATIONSHIPS IN EMPLOYMENT AND MARRIAGE

   Perhaps the best way to illustrate the role of the courts in the employment relationship is the story of Mr. Shioda and his struggle with his employer, Kochi Broadcasting. (7) Shioda was assigned to read a ten-minute news segment at 6 a.m. On February 23, 1967, he did not awake until 6:20, missing the entire broadcast. Two weeks later, on March 8, he again overslept but managed to get to the microphone by 6:05 to read half of the broadcast. Remarkably, since his failure had literally been broadcast to the world, Shioda did not report the second incident. Not surprisingly, the company discovered the facts and fired him. Shioda sued for wrongful discharge.

   To win, he had to overcome statutory language in both the Civil Code and the Labor Standards Law that gives both parties in an employment relationship the freedom to terminate without any reason. (8) To make the task even more difficult, he was hardly blameless. Within two weeks, Shioda had twice failed to perform a simple and fundamental duty for the company, one that had an immediate effect on the company's reputation, without the slightest excuse or extenuating circumstance. Then he had lied about it.

   Nonetheless, the district court, high coFurt, and Supreme Court all agreed with Shioda and ordered his reinstatement. The Supreme Court did not shy away from the facts. It recognized that the company had not disciplinarily discharged Shioda; that he had violated work rules without a satisfactory reason; that the company had suffered therefrom; and that Shioda had not dealt with the incident honestly. "However," the Court continued,

   his [Shioda's] failures were not caused by malice or intent but rather by negligence, namely oversleeping. It is rather too harsh to blame only the plaintiff since in both instances the reporters who were supposed to wake him also overslept and failed to give him the script of the broadcast. The plaintiff apologized immediately after his first failure, and in the second instance he tried to start work as soon as he woke up. In neither case was the missed period of broadcasting too long.... His submission of a coverup report was partly the result of ... his awkwardness over his repeated mistakes in a short period. Considering all these points, he is not to be blamed too much. (9) The Court went on to note that Shioda's job performance up to this point had not been "particularly bad" and that he had eventually apologized for the second incident. (10) These circumstances made the company's reaction appear unreasonably severe in the eyes of the Court, and it declared the dismissal null and void as inconsistent with the "common sense of society" as stipulated in the general clauses of the Civil Code. (11)

   It is important here to restate what is remarkable about the Supreme Court's decision and opinion. It is not its solicitude for the employee. Many developed countries have made it very difficult to fire employees, but they have done so via legislation, not via the judiciary's total rewriting of the statutes governing the employment relationship. (12) Nor have Japanese courts limited their activism in the employment sphere to discharges. They have systematically narrowed companies' discretion across a wide range of areas including discipline, transfers, and the termination of temporary employment. (13) In doing so, they have relied on the general clauses of the Civil Code, extremely vague provisions that allow interventionist courts to use phrases like "good public order," "good faith," or "the common sense of society" to effectively nullify legislation. This pattern has been repeated in the area of private gender discrimination in employment, but before we reach these cases, it is worth briefly recounting the courts' role in contested divorce, where it did not have to resort to the general clauses but innovatively interpreted the language of a specific statute to make marriages almost as difficult to sever unilaterally as the employment relationship. (14)

   If they agree, Japanese spouses need only register with local government to get a divorce. If it is contested, however, judicial action is required, and Civil Code Article Section 770(1), as amended in 1947, lists the permissible grounds. The first four restate prewar fault-based grounds such as adultery, but the fifth, "any other grave reason for which it is difficult for the [plaintiff/spouse] to continue the marriage," transformed the prewar fault regime with what has been called an "incompatibility" regime. (15) The 1947 amendment was...