Judicial Control Over Social State Activities in Japan and Meaning of Equality Rights

Abstract

Japan is known as constitutional system in which social rights have long been guaranteed expressively. Its 1946 Constitution guaranties right to “life above healthy and cultural minimum” as well as rights to work, education and collective bargaining. These rights were, however, interpreted traditionally only as reflex of legislative activities that gave these rights clear normative outlines. This led to a somewhat balanced system of social and economic policy, in which subjective rights of really deprived individual play, regrettably, no role whatsoever. The Japanese Supreme Court changed this attitude recently and began to control legislative activities in areas in which it granted wide discretion to the legislator traditionally. It is not social rights provisions as such that function thus far as basis of this contemporary activism. Rather, equality rights are now the main tool for the judiciary to control legislative discretion. Although retreat from established standard of social security system characterizes the time in political area also in Japan, the contemporary judicial activism constrains the process of retreat.

This new trend of Japanese judiciary stands in interaction with new tendency in constitutional theory. Apart from prevailing theory treating constitutional social rights as abstract ones ― i.e. rights requiring concretization through legislation ―, there was a minority theory that demands certain level of income and other material conditions as substance of social rights (also in connection with liberal model of John Rawls). This income-oriented model develops now in direction to a capability-oriented model (in accordance with Amartya Sen), in which processes as well as results of social exclusion are treated as deprivation of social rights. It is now essential for developing theoretical frame to identify deprivation of fundamental human rights on the basis of provisions guaranteeing social rights and, perhaps more effectively, of formal and material equality.

Keywords: Social Rights, Social Exclusion, Equality Right