Stephen Givens is a Tokyo-based business lawyer.
The recent Japanese Supreme Court ruling upholding the constitutionality of the Civil Code’s requirement that married couples have the same last name is a window into the current state of Japanese constitutional case law.
The ruling reveals that Japan lacks one key feature – a cohesive set of threshold principles to govern when and why the constitution should trump law enacted by a democratically elected legislature.
Ideally, threshold constitutional principles should define and defend the line between law and politics. But Japan’s lack of consistent principles erases that border. Fifteen unelected lawyers in black robes with floating discretion to overturn legislative action and remove the subject from the realm of political choices weaken democracy.
The marriage surname case shows that the Supreme Court of Japan has no answer when it comes to three preliminary questions: First, when should courts reconsider existing precedents for a possible reversal? Second, when should courts interpret and apply the constitution in light of social changes, such as the changing role of women and changing attitudes towards the family? Third, when is a court justified in striking down a law on purely public policy grounds?
A simple majority of eight judges resolved the case correctly, needing only two pages to dismiss the plaintiffs’ claim that forcing married couples to adopt a common surname violates Articles 13 (the right to be “respected as individuals”), 14 (equal protection), and 24 (equal rights of husband and wife) of the constitution. The Supreme Court had already ruled on an identical case in 2015, ruling on the constitutional law and postponing any changes to the Diet.
The remaining seven judges saw fit to devote an additional 47 pages to four separate concurring and dissenting opinions, rehashing and re-discussing an issue that should have been resolved in 2015.
Stare decisis (“Let the decision be sustained”) is a fundamental doctrine of constitutional law. When and under what conditions should a court review and reconsider previous decisions? Obviously, “never” is not a good answer, but neither is “always”. Flip-flop lands don’t deserve our respect.
In the United States, which has a longer and denser record of constitutional litigation than Japan, there are detailed rules, anchored in a long series of precedents, that determine when it is appropriate to review old decisions. Japan, to its detriment, does not have a disciplined doctrine of stare decisis. Taking at length and with mixed conclusions, a question the court resolved only a few years ago, seven Japanese judges have undermined the legitimacy of the Supreme Court
The sprawling 26-page dissent authored by former tax lawyer at a major law firm Yuko Miyazaki and former Tokyo University law professor Katsuya Uga, highlighting the changing roles of women and the family over the course of 50 years, argues that the concepts of “equality” in Articles 14 and 24 of the constitution should be interpreted in light of social reality and values as they exist in 2021, and not in 1891, when the law was enacted, or in 1946, when the post-war constitution was adopted.
The question of whether the courts should have the power to reinterpret malleable words such as “equality” or “respect for the individual” in the constitution in light of contemporary values is a critical threshold question in constitutional case law to which the Japan still has to face it.
The United States is all too familiar with the matter following its own Supreme Court’s use of fuzzy words like “equal protection” and “due process” to repeal and remove democratic choice, old laws prohibiting the abortion and same-sex marriage. .
Given the stakes, Japanese constitutional case law must decide, with its eyes open, between a “living constitution” that invites flexible reinterpretation by unelected judges as times change, and judicial restraint strictly within the bounds of law. original intention and meaning of the document.
A solo dissent by former lawyer at a major M&A firm, Koichi Kusano, raises a third threshold question: Is it legitimate for judges to overturn legislation just because they think is that bad public policy?
Kusano’s dissent implies that it is. Barely referring to the terms of the constitution, Kusano applies a purely utilitarian political cost-benefit analysis and concludes that the Japanese Diet was wrong.
The law should be overturned because, by Kusano’s own calculation, the “welfare” costs of the law, primarily an invasion of “privacy” resulting from the public disclosure of her marital status after a change in marriage. name, outweigh its benefits, none of which Kusano could think of.
Even the most liberal proponents of judicial discretion and a “living constitution” would hesitate to give judges the power to strike down laws for unconstitutional political reasons only. A tribunal is not a standing public policy review board that exists to make sure the legislature is doing the right thing.
And public policy calculations are not just a matter of objective calculation, but of values that honest people may disagree with. Kusano sees no value in a common surname to assert the existence of a family unit that is greater than the sum of its individual members. Many other Japanese do.
The Japanese court is hampered in its ability to track down and openly debate these threshold issues through Japanese politeness. The eight judges who correctly ruled on the case have been too polite to point out that the positions taken by their fellow dissidents threaten to blur the line between law and politics. Next time they should be less polite.