Taking 'Regulatory Courts' Seriously — A Perspective from Japanese City Planning Law

Abstract

Inspired by one of the topics at the Administrative Law Discussion Forum 2014 (The Emergence of Regulatory Courts), this paper examines the role of courts in “regulation” within the context of Japanese administrative law, especially in the areas of land-use law and city planning.

I argue that the concept of “regulation” is relative or reciprocal, at least in the context of land-use law. Next, I describe the institutional backdrop of the Japanese judiciary’s handling of administrative cases. The concept of “legal dispute,” specifically its component of “rights and duties,” plays an important role as part of the “gatekeeper” function. The other component, “question of law” and underlying concept of the judiciary, form a limit on how far the judiciary may intervene. However, because the concept of “rights and duties” is flexible, the gatekeeper function may be either stringent or loose, depending upon the attitude of the court. When courts are entrusted with reviewing the legality of a city planning decision, they can use either their traditional power to “determine facts” or they can “interpret the law”. The latter may be assisted by the method of “judgment process control,” but the tool for effectively controlling administration is still at the development stage.

Keywords: Japan, regulation, judiciary, legal dispute, discretion control

JEL Classification: K