In Print: Volume 88: Number 6
Stealth Activism: Norm Formation by Japanese Courts
By Frank K. Upham
88 Wash. U. L. Rev. 1493 (2011)
(PDF)
As we consider the political and social roles of the Japanese Supreme Court and specifically whether it has a conservative influence, we need not only to define “conservative” but also to think of what roles a court may play in a democratic society. One role that has received a lot of attention in this symposium is constitutional judicial review. Both Professors Haley and Law agree that the Japanese judiciary has exercised a conservative influence in this respect, and Law would probably agree with Haley’s summary statement that Japanese courts “do not seek to be the catalysts of social change.”
I disagree with the sweeping nature of such characterizations and believe that there are substantial and important exceptions. I have no knowledge of the personal motivations of Japanese judges, so I cannot assert that they seek to change Japanese society, but I do argue that they have done precisely that and, furthermore, that they have done so in a manner that goes beyond what American courts have been willing or able to do. I disagree with Law’s argument that Japanese judges are trapped in a bureaucratic cage, I disagree with the assertion that they are the political lackeys of the Liberal Democratic Party as Ramseyer and Rasmusen argue, and I disagree with Haley’s argument that they are cautious reflectors of social consensus. Instead, I contend that Japanese judges have played a much more activist role in Japanese society than the American federal judiciary has done in American society, despite the fact that the American judiciary is frequently touted as a paradigmatic example of judicial activism. Perhaps most surprising, given the apparent consensus at this conference, they have done so in a “liberal” direction that has contradicted the apparent desires of the Liberal Democratic Party and the prevailing consensus of Japanese society. No one has noticed, however, for two reasons. First, they have not done so in judicial review, where American observers of judicial activism are trained to look, but in the interpretation of the general clauses of the Civil Code, an area of law that is less clearly in the political spotlight. Second, Japanese courts have not used their injunctive powers to intervene in the operation of governmental bureaucracies and civil society institutions as American courts have in instances such as the affirmative action cases discussed briefly below.
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