Constitutional Adjudication in Japan: Context, Structures, and Values

Abstract

Judges in Japan share the prevailing communitarian orientation of their society, an orientation that rejects Manichean choices and moral or "scientific" absolutes, but instead relies on their collective and individual perceptions of community values, including the global community, shared by peers. They also, I believe, accept an unstated premise that legislative and administrative decisions reflect a consensus among the participants--not a simple majority. The issue remains as to who participates--who sits at the table--but the political and administrative processes do not routinely require merely fifty-one out of a hundred votes. As a consequence, judges are cautiously conservative. They adhere to precedent and endeavor to maintain, as best they can in a changing society, a legal order that is predictable and consistent. Stability is a virtue, not a vice. They do not seek to be the catalysts of social change. They believe in democratic institutions and thus defer to the democratic institutions of governance while maintaining, indeed reinforcing in their priority of values, the rule of law.