Academic journal article
By Martin, Craig
Duke Journal of Comparative & International Law , Vol. 20, No. 2
Equality is a concept that has been a preoccupation in much of the thinking about justice since at least the age of Aristotle. It informs our most primordial and intuitive understandings of fairness. It is a concept that has been the subject of serious debate among philosophers, political theorists, and jurists since the seventeenth century. It has become embedded in modern notions of democracy. It forms the foundation of one of the most fundamental rights--the right to be treated as an equal and not to be discriminated against--that is enshrined in some manner in most modern democratic constitutions, and in the bedrock conventions in international human rights law. Yet there has been disagreement over the theoretical and philosophical foundations and origins of the right. This has been reflected in practical terms by the extent to which different jurisdictions have historically approached the protection and enforcement of the right from often markedly divergent perspectives. As a result, the content of the right, its scope, and the degree to which it has been meaningfully protected by the courts, has often varied appreciably across legal systems. Even in North America, in which Canada and the United States share a common legal heritage, the constitutional approaches to "equality rights" or "equal protection" (even the terminology varies), continue to be significantly different.
It is perhaps not surprising, therefore, that the Japanese approach to the constitutional protection of equality rights should be considerably different from each of these two North American models. Yet the Constitution of Japan of 1947 was primarily drafted by Americans, (1) and constitutional rights theory in Japan has continued to be influenced by American jurisprudence. On the other hand, the constitutional provision that these young Americans crafted was actually quite unlike the American Equal Protection Clause. Indeed, it was quite progressive and ambitious for its time, and as time marched on, the equality rights provisions of other national constitutions would come to share more with this provision of the Constitution of Japan, than any would share with the earlier American model. The equality rights provision in the Canadian Charter of Rights and Freedoms, for instance, has much in common with that of the Japanese Constitution. So while it might seem intuitively unsurprising that the Japanese approach is different, there are reasons to think that it should be less so. Indeed, it has been argued that there is an increasing commonality to how the judiciaries of constitutional democracies analyze and enforce the right to equality, and Japan may be seen as an anomaly in that context.
Notwithstanding the ambitiousness and apparent robustness of the equality rights provision in the Constitution of Japan, and the explicit and considerable authority conferred upon the judiciary to exercise judicial review powers to interpret and enforce such rights, the right to equality in Japan has had a sad history. As is well known and often explored, the Constitution of Japan as a whole has not enjoyed much protection or enforcement by the courts. In over sixty years, the Supreme Court of Japan has ruled that an impugned law or government policy was unconstitutional in less than ten cases, notwithstanding the fact that the U.N. Human Rights Committee, rapporteurs under various U.N. human rights conventions, and international human rights organizations, as well as domestic legal scholars and non-governmental organizations ("NGO"), have all documented serious violations of rights in Japan. There has been a wealth of analysis, including much in English, on the various factors that might explain this feature of the Japanese legal system, ranging from cultural to institutional and systemic reasons. (2) Many of these studies have made important contributions to the general understanding of the Japanese system, have provided significant foundations for practical normative responses to some of the perceived failings of the system, and have generated generalizable insights within the context of comparative law. …