Constitutional Adjudication in Japan
26 Pages Posted: 17 Sep 2021
Date Written: 2011
Judicial decision making in Japan has become a topic of considerable interest for at least the cadre of comparative lawyers whose primary concern is constitutional law.
Rarely if ever do critics engage in any in-depth comparative analysis of constitutional cases and their context in other industrial democracies. The relative paucity of decisions invalidating legislation and other state actions as unconstitutional has been the principal, if not exclusive, point of departure in attempts to explain the now apparent “conservatism” or, indeed, the proclivity of judges, particularly the fifteen Justices who occupy the bench of the Supreme Court, to defer to the political and administrative branches of government. I disagree.
in my view, judges in Japan share the prevailing communitarian orientation of their society, an orientation that rejects Manichean choices and moral or ―scientific‖ absolutes, but instead relies on their collective and individual perceptions of community values—including the global community—shared by peers. They also, I believe, accept an unstated premise that legislative and administrative decisions reflect a consensus among the participants—not a simple majority. The issue remains as to who participates—who sits at the table—but the political and administrative processes do not routinely require merely fifty-one out of a hundred votes. As a consequence, judges are cautiously conservative. They adhere to precedent and endeavor to maintain, as best they can in a changing society, a legal order that is predictable and consistent. Stability is a virtue, not a vice. They do not seek to be the catalysts of social change. They believe in democratic institutions and thus defer to the democratic institutions of governance while maintaining, indeed reinforcing in their priority of values, the rule of law.
Keywords: comparative constitutional law, judges, constitutional interpretation
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