Professor Law Publishes Book on Japanese Supreme Court and Judicial Review

David S. Law, professor of law and professor of political science, has published a groundbreaking book on the Japanese judiciary and constitutional adjudication in Japan, titled The Japanese Supreme Court and Judicial Review (Gendaijinbunsha, 2013).

“The book explores why the Japanese Supreme Court has largely failed to enforce Japan’s constitution,” Law says. “It also examines the practical consequences of how the judiciary is organized for the development of Japanese constitutional law, and the relationship between democracy and judicial review.” 

Although the book is in Japanese, it draws heavily on articles published in English in the Texas Law Review and Washington University Law Review. The translator, Shin-ichi Nishikawa, is a distinguished political scientist at Meiji University who specializes in the study of the Japanese judiciary and bureaucracy.

Japan’s postwar constitution, the Nihonkoku Kenpō, has been the subject of recent attention as the ruling Liberal Democratic Party has renewed efforts to amend the provisions that prohibit Japan from militarizing. While popular among the Japanese people, the 1947 constitution has long been attacked by conservatives for having been “imposed” by the United States, Law observes.

By global standards, the Japanese Constitution is now considered relatively old at 66 years, yet it remains “one of the most up-to-date” and “squarely in the mainstream of global constitutionalism,” according to Law. He points out that while the Japanese Constitution protects 19 of the “most popular constitutional rights” in the world, the U.S. Constitution includes only 12. For example, unlike the U.S. Constitution, the Japanese Constitution explicitly prohibits discrimination based on sex or social status, protects academic freedom, and contains a right to education.

Although Japan is among the growing number of countries that entrust their courts with special responsibility for upholding democracy and the rule of law by enforcing the constitution, Japan’s Supreme Court has fallen short of discharging this important responsibility, Law argues. Despite the Nihonkoku Kenpō’s modernism and popularity, Law writes that “it is difficult to think of any constitutional court in the world that is more reluctant to exercise the power of judicial review . . . than the Japanese Supreme Court.” In its history, the Supreme Court of Japan has struck down only eight statutes on constitutional grounds.

Law’s explanation for the court’s failure to actively enforce the constitution emphasizes the highly bureaucratic and centralized structure of the Japanese judiciary and the subtle control exercised by the long-ruling, center-right Liberal Democratic Party (LDP), evidenced by its “unconventional selection of [conservative] Hironobu Takesaki as Chief Justice in 2008.”

Given the centralized structure of the Japanese judiciary, the selection of the Chief Justice has great consequences for all courts, including the Supreme Court itself. With “political power back in LDP hands,” Law writes, “the prospects for vigorous judicial enforcement of the constitution have once again dimmed.”

Professor Law’s research and teaching interests include public law, comparative law, law and social science, judicial politics, and constitutional and political theory. His scholarship is interdisciplinary and combines quantitative and qualitative research methods with comparative approaches to the study of global constitutionalism, constitutional adjudication, and judicial decision-making more generally.

His research in Japan was supported by an International Affairs Fellowship awarded by the Council on Foreign Relations and sponsored by the Hitachi Corporation. On July 15, he will highlight the publication of his new book by giving a lecture, titled “Why Study the Japanese Supreme Court? A Foreign Perspective.” The lecture will be 4 p.m. at Meiji University and include participation by Professor Nishikawa and a number of Japanese judges. 

By Timothy J. Fox