Legal Management of Urban Space in Japan and the Role of the Judiciary

Abstract

In the early 2000s, Japan was engaged in a project of judicial reform. The Opinion of the Justice System Reform Council (June 12, 2001) proposed the re-examination of the administrative litigation system with the aim to reinforce the ‘judicial check function vis-a-vis the administration.’ The basic idea behind this opinion was to ‘transform the excessive advance-control/adjustment type society to an after-the-fact review/remedy type society.’ Based upon this opinion, the Administrative Case Litigation Law in Japan underwent important amendments in 2004.

The aim of this paper is to examine the of the role of the judiciary in the context of urban space management in Japan, both in terms of how it actually operates, as well as possibilities for its reform.

In section 2, I will examine the background rules in the legal management of urban space. I will show the understanding of property as a product of the ‘dual partition of the common space,’ which aims at the solution for the ‘tragedy of commons’ (2.1). However, commons-like nature of space will nevertheless remain, which serves as the inherent limitation of solutions based on the creation of property rights. The problem of landscape protection is a typical example of such residual commons (2.2). On the other hand, actual land legislation in Japan is based on the idea of private property/public interest dichotomy and the ‘minimum intervention principle’ (2.3).

In section 3, I will describe three development stages of City Planning in Japan, namely the transformation from the ‘urbanizing society’ (3.1) to the ‘urbanized society’ (3.2) and finally in the context of ‘shrinking cities’ (3.3).

In section 4, I will propose two models of legal governance of urban space: a ‘rights-based model’ and a ‘consultation and coordination model.’ After showing the two models (4.1), I will show that the concept of judiciary in Japan is determined by the function of solving ‘legal disputes’ (4.2.1). After that I examine the content of the 2004 amendment of the Administrative Case Litigation Law, which was rather lukewarm but had nonetheless had considerable impacts (4.2.2). However, in the context of city-planning, these effects were limited by the perceived function of the judiciary (4.2.3). I try to find a hint for the future possible role of the judiciary that would contribute to ‘consultation and coordination model’ (4.3).

Lastly, I will give a very short reflection on the role of the judiciary in the theoretical model of principal-agent relationship (5).