The Role of Courts in Japan. Seen from a Comparative German Perspective
Festschrift zu Ehren von Christian Kirchner. Recht im ökonomischen Kontext, pp. 3-21, Wulf A. Kaal, Andreas Schwartze, and Matthias Schmidt, eds., Mohr Siebeck, 2014
20 Pages Posted: 11 May 2014 Last revised: 30 Mar 2016
Date Written: 2014
In trying to develop a comparative evaluation of the role courts play in Japanese society, this article deals with three different aspects: first, the institutional similarities and differences that can be observed between the court systems in Japan and Germany; second, the access to justice in both countries; and finally, the role of courts in shaping the legal order, constitutional and otherwise.
Viewed from the German perspective, the institutional setting of courts, the way court proceedings are conducted, and how young jurists are trained in Japan looks fairly familiar at first glance. At the center of the judicial systems in both countries we see a cadre of highly skilled professional career judges.
However, upon closer inspection some differences show up. One example is the different way courts deal with constitutional matters. In the course of the last sixty years, the Japanese Supreme Court struck down fewer than ten laws on constitutional grounds. In contrast, the German Constitutional Court disqualified more than six hundred legislative and administrative provisions as unconstitutional. This seems to imply that the Japanese Supreme Court has opted for a conservative, restrained judicial and political role. But on the other hand, the Court does assume a very active role in the broad field of civil law where it rendered a large number of decisions that had wide-reaching impact on society. These decisions are anything but conservative or restrained.
The main difference between the institutional settings in both countries is less judicial and more political, and it is based on how access to justice is organized. In Germany we see an open market for legal talent and an affirmative policy encouraging the use of courts; in Japan, important recent reforms notwithstanding, regulating access to justice still seems to be inspired by a tendency to outguess the market.
Keywords: Comparative evaluation of the role courts play in Japanese society, comparison of court systems in Japan and Germany, access to justice, the role of courts in shaping the legal order, diferences in dealing with constitutional matters
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