THE DEMOGRAPHIC CHALLENGE - A HANDBOOK ABOUT JAPAN, Florian Coulmas, ed., Leiden: BRILL Academic Publishers, 2008
39 Pages Posted: 18 Nov 2007 Last revised: 14 Sep 2008
Date Written: March 15, 2008
As one chapter in a book on the demographic challenges faced by an aging society in Japan, this paper looks at the ramifications of the demographic changes on the judicial treatment of the right to equality in Japan. It suggests that there is likely to be more discrimination against women, the elderly, and foreigners as a result of the responses to aging, and more litigation relating to such discrimination, and it argues that the courts ought to change the manner in which they analyze such claims.
The courts of Japan have failed to develop a robust analytical model for adjudicating the claims of discrimination, and the constitutional right not to be discriminated against is generally not enforced in Japan. While there are a number of factors that may combine to explain why Japanese courts have been so reluctant to enforce the equality rights under the constitution, one that has not been sufficiently explored is purely doctrinal, being the nature of the analytical framework that the courts have developed and employed in adjudicating discrimination cases.
The paper analyses the development of the reasonable discrimination test in Japan, which fails to incorporate any of the fundamental ideas generally understood to inform the right to equality, and which applies only criteria internal to the policy or law in question in assessing whether the discrimination it causes is reasonable. The test merges the issues of the violation of the right and the justification of the violation, with a tendency to skip directly to justification. It is argued, in an analysis of the key equality rights cases, that this test lends itself to result-oriented decision making, and creates confusion over what constitutes the essence of discrimination and the right to equal treatment. As such, it provides the lower courts with no assistance in terms of how to analyze such cases, and typically leads to findings that discrimination against minorities and the vulnerable is reasonable in light of the policy objectives in question.
The continued use of the reasonable discrimination test in an aging society with increasing equality rights litigation could exacerbate the tensions caused by the demographic pressures, and lead to results inconsistent with the government's stated policies to address the aging problem. Ultimately, there may be institutional costs to the courts continuing to deny discrimination claims with an analytical approach that will come under increasing scrutiny.
Keywords: Japan, Equality Rights, Courts, Constitutional, Discrmination
JEL Classification: K10, K30, K40, J10
Suggested Citation: Suggested Citation
Martin, Craig, Coming of Age: The Courts and Equality Rights in Japan's Aging Society (March 15, 2008). THE DEMOGRAPHIC CHALLENGE - A HANDBOOK ABOUT JAPAN, Florian Coulmas, ed., Leiden: BRILL Academic Publishers, 2008. Available at SSRN: https://ssrn.com/abstract=1030364