Active judge, passive judge

5What should we think of these decisions? The first reflex of the outside observer would probably be to let his sense of justice speak for itself, to affirm that the Japanese judge did not protect the rights of foreigners, unlike the French judge.

6Such an interpretation would not be unprecedented, as this is precisely the view of many authors in the abundant Anglo-Saxon literature. For these authors, the attitude of the Japanese judge is marked by a desire never to challenge political power and always to decide in a way that is likely to win full consensus within the institutions. In so doing, they rarely challenge the decisions of the political authorities, nor do they protect fundamental rights for fear of hindering the action of those in power. This is why these same authors do not hesitate to describe the Japanese judge as “passive’, “conservative” and “docile’, suffering from a cruel comparison with the Korean Constitutional Court, which is described as “the most active judicial institution in the region”.

7This is an important statement. Indeed, the 1946 Constitution, which replaced the Meiji Constitution of 11 February 1889, had intended to break with the all-­powerful imperial figure that sat at the apex of the separation of powers. It gave very broad powers to the judge, so that he could, if necessary, oppose the political power, ­accused of having dragged the Pacific into the war. Indeed, to claim that the Japanese judge is passive is to assert that the Supreme Court of Japan would not comply with the role entrusted to it by the 1946 Constitution.

Good judge, bad judge

8On second thought, describing a judge as “passive” obviously involves an element of subjectivity. Indeed, the act of judging cannot be summed up as a simple choice by which the judge would decide to protect or not to protect an additional right. Judging has much more to do with arbitration, which consists in choosing one interest over another.

9Thus, it is possible to see in the McLean decision a desire not to protect the fundamental rights of foreigners. However, it can also be seen as protecting the autonomy of political power, which is necessary for the proper functioning of the state. Similarly, in the GISTI case, the Conseil d’Etat chose to protect the rights of foreigners, but did so at the cost of reducing the autonomy of political power. In other words, in this matter, the judge cannot be described as passive or active, since the judicial decision is a choice: one interest is passively protected because another interest is actively reinforced.

10To describe the Japanese judge as “passive” is therefore not an operational understanding grid. What is more, if we see passiveness in the Japanese judge’s decision, it is we think this decision is bad, unfair. Such a statement therefore constitutes a political assessment, and not an objective description of the action of judiciary. However, any political assessment raises the question of the subjectivity of its author. By thinking his decision is wrong, we assume that some interests are more worthy of protection than others. In a certain way, this means refusing to accept that the Japanese judge may defend a different set of values from our own.

11Is there not another way to describe these court decisions?

Minobe Tatsukichi (1873-1948)

Law and politics

12The key to understanding the attitude of the Japanese judiciary probably lies in the history of the institutions.

13At the end of the war, Japanese lawyers trained to understand the Meiji Constitution had very little time to understand the new Constitution, which was largely derived from Anglo-Saxon legal doctrine. In doing so, the most influential of them, such as Minobe Tatsukichi (1873-1948), actually analyzed the new constitution in terms of the old texts and concepts. Thus, they argued that the 1946 constitution had actually transferred the supreme power of government from the emperor to the citizens, who occupy the most prominent place in the new constitution. Even today, Japanese jurists maintain that the principle of democratic sovereignty is the backbone of the institutions.

14In many respects, the Japanese judge sees himself as the guarantor of this democratic sovereignty, rather than as an actor of societal progress. True legitimacy is democratic and belongs to the citizens, not to the judge whose legitimacy is based on the technicity of his knowledge. In so doing, it is rare that it allows itself to pronounce on social issue that it considers to be the sovereign choice of the citizens, such as the place of foreigners within society.

15This is how two recent Supreme Court decisions might be understood.

16On 23 June 2021, the Supreme Court refused to declare the single name system unconstitutional, obliging one of the spouses (usually the wife) to adopt the spouse’s surname. In justifying its position, the Court stated that there is currently no “consensus” in society on this issue and that the choice to change this rule belongs to the citizens, not the judge.

17On the other hand, in a decision of May 25, 2022, the Supreme Court ruled unconstitutional an act that prevented Japanese citizens living abroad from voting in the popular review of judges, a procedure that allows citizens to object to the appointment of a Supreme Court judge. The decision was justified by the importance of the right to vote as the basis of democratic sovereignty.

18Taking an interest in law and institutions can be instructive. It is therefore regrettable that Japanese law is currently the subject of only a few studies, and that we are still left with Yoshiyuki Noda’s statement that the Japanese “do not like law”. In order to counter this commonplace, it would be necessary for French researchers to “like” (Japanese) law a little more…