The Japanese Constitution as Law and the Legitimacy of the Supreme Court's Constitutional Decisions: A Response to Matsui (original) (raw)

Washington University Law Review, Vol. 88, No. 6, 2011

Abstract

This article, from a conference at the Washington University School of Law on the Supreme Court of Japan, responds to an article by Shigenori Matsui, “Why is the Japanese Supreme Court is so conservative?” Professor Matsui’s article makes the argument that a significant factor is the extent to which the judges fail to view the Constitution as positive law requiring judicial enforcement. It is novel in its emphasis on an explanation grounded in law, and the decision-making process, rather than the political, institutional, and cultural explanations that are so often offered. In this article, Borrowing from Kermit Roosevelt’s arguments on judicial activism, I suggest that rather than framing the question in terms of the Court’s “conservatism”, Matsui’s argument would be that much more powerful by asking whether the Court’s constitutional decision-making is “legitimate”. The article explores why the term “conservative” can have various different meanings and is ultimately not a very useful basis for evaluating a court. It examines how the concept of legitimacy might be more meaningful, and explores how such legitimacy might be analyzed under various approaches to constitutional interpretation and theories of judicial review. The article employs two very different but well established analytical models, from the proportionality principle approach and from process theory, to analyze the 2006 Tokyo Metropolitan Government case for the purposes of illustrating how the court’s reasoning might be assessed for legitimacy. The exercise demonstrates that the judgment would not meet the legitimacy requirements under either approach, and indeed the reasons provide some compelling evidence to support Matsui’s central claim. The point is not, of course, that all of the Court’s constitutional jurisprudence is illegitimate, but that a systematic examination of the Court’s decisions from this perspective could provide powerful evidence in support of Matsui’s argument that many of the judges do not view the Constitution as positive law requiring judicial enforcement. Given that Matsui’s argument focuses on the operation of the Court as a legal institution, rather than as a political entity engaged in competition with the other branches of government, reframing the inquiry to examine the legitimacy of the decision-making process of judges would enhance the normative power of his claims.

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