Judicial Lawmaking and the Influence of Comparative Law
Studies in Comparative Law and Legal Culture series
Edited by John O. Haley and Toshiko Takenaka
Chapter 3.1: Judicial lawmaking and the creation of legal norms in Japan: A dialogue
According to a widely accepted stereotype, Japan’s judiciary plays a very limited role within the legal system. By this view: Japan is a civil law system, modeled during the Meiji era on the two primary legal systems of continental Europe – France and Germany. In keeping with the dominant perceptions, at least in the United States, of the ethos of civil law systems generally, Japanese judges merely interpret presumably all-inclusive codes; they do not create law through precedent in the manner of common law judges. The courts’ role is further circumscribed by the vaunted non-litigiousness of the Japanese people. Even when cases reach the courts, according to this stereotyped view, the Japanese judiciary is a paragon of judicial restraint. Judges hardly ever question the constitutionality of statutes and are loath to second-guess bureaucrats or the Diet. Furthermore, to the extent the courts play a role, they are conservative in nature and tend to support the establishment. Finally, on those rare occasions when the judiciary steps in, the Diet and the bureaucracy are quick to reestablish their dominance, through new legislation taking matters out of the courts’ hands. We take a different view. As we discuss below, for over a century Japan’s judges have played a central role in the formation and development of law. To be sure, in the great majority of cases, Japanese judges straightforwardly apply standards embodied in statutes enacted by the legislature.
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