In Print: Volume 88: Number 6
Constitutional Precedents in Japan: A Comment on the Role of Precedent
By Shigenori Matsui
88 Wash. U. L. Rev. 1669 (2011)
(PDF)
Japan is a civil law country, and the precedent of the Supreme Court is not binding on either the Supreme Court itself or lower courts. Judges are supposed to return to the text of the statute for each legal dispute and apply the rules to specific cases. Judicial decisions are not “law” to be applied by the courts.
Despite this assumption, judges have followed the precedent of the Supreme Court most of the time. The Supreme Court will follow its precedent in normal situations, and the lower courts will usually follow the precedent of the Supreme Court as well. Thus, although the precedents are not legally binding, they have a de facto binding power.
In this Comment, I will focus on constitutional law precedents to illustrate the Supreme Court of Japan’s approach toward its own precedent. As Professor Itoh pointed out in his Article, the theory of precedent may be a convenient measure to justify or rationalize the outcome the Supreme Court has already reached. Yet, precedent plays a very important role in constitutional adjudication, constraining the decision making of the Supreme Court.
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