Why Has Judicial Review Failed in Japan?

Abstract

There are two senses in which judicial review in Japan has failed. First, the Supreme Court of Japan strikes down laws so rarely that judicial review exists more in theory than in practice. Second, history demonstrates that the Court faces a very real risk of government noncompliance on the rare occasions that it does address politically important or sensitive constitutional issues.

This Article critically evaluates a wide range of historical, cultural, political, and institutional explanations for the effective failure of judicial review in Japan. A number of the most frequently invoked explanations call for a considerable degree of skepticism. In particular, cultural explanations that emphasize the characteristics of “the Japanese” – such as their supposed penchant for group harmony and unwillingness to defy authority – tend to rest on inaccurate stereotypes, ignore the scope of social and political conflict in postwar Japan, and minimize the rationality and intelligence of individual judges. Meanwhile, historical explanations that emphasize such factors as the impact of the Cold War and the novelty of judicial review are increasingly difficult to maintain in light of both the passage of time and the counterexamples furnished by the experience of other countries.

To a greater extent, the failure of Japanese judicial review is the product of interaction between the internal organization of the judiciary and the relatively conservative political environment in which the judiciary has long operated. For decades, an entrenched bureaucracy staffed by career judges has regulated the behavior of the judiciary, including the Supreme Court itself, in ways that have obviated more overt forms of political control. At least in the short to medium term, the Japanese Supreme Court is unlikely to discharge its responsibility for performing judicial review with greater vigor absent institutional reforms that reduce its dependence for essential resources upon this bureaucracy. The Article concludes by discussing a number of reforms that might have such a liberating effect on the Court.