Judicial Review In Japan: A New Perspective

Abstract

This article offers a new perspective on the subject of constitutional judicial review in Japan. This perspective uses a heuristic of the judiciary as a bureaucracy that is engaged in policy-making more broadly than just through dispute resolution and thus needs to maintain a good working relationship with other national government bureaucracies, particularly the Ministry of Justice (‘MOJ’). This heuristic will be developed through a description of the judiciary’s historical and present relationships with the MOJ. It is then applied to the Supreme Court of Japan’s constitutional jurisprudence, with a particular focus on the small number of instances where the court has found a statutory provision unconstitutional. The article closes with some observations about what the heuristic might predict about the direction of judicial review in the future, particularly on subjects such as same sex marriage and spousal surnames.