Academic journal article Suffolk Transnational Law Review

Common Law Constitutionalism and Its Counterpart in Japan

Academic journal article Suffolk Transnational Law Review

Common Law Constitutionalism and Its Counterpart in Japan

Article excerpt


In the Anglo-American legal tradition, there are ideas that the common law restrains governmental power, that common law reasoning influences constitutional arguments, and that common law rights are incorporated into a constitution. We can call these ideas "common law constitutionalism." (1) For instance, when Sir Edward Coke (Coke) rebutted absolute monarchy in seventeenth century England, he thought that even a king or the British Parliament could not arbitrarily overrule the common law. He said, as a judge in the Court of Common Pleas, that "when an Act of Parliament is against Common right and reason, or repugnant, or impossible to be performed, the Common Law will controll [sic] it, and adjudge such Act to be void. ..." (2)

From then on, common law lawyers have thought that the common law is reason accumulated since time immemorial. (3) Many generations have made the common law over hundreds of years; therefore, lawyers consider the common law to be their collective wisdom. (4) Common law constitutionalism tends to think of the common law rights as fundamental; as a result, jurists believe that common law rights and constitutional rights are deeply related. This type of constitutionalism assumes constitutional rights are derived from the common law. (5) Furthermore, reasoning in constitutional cases is also derived from common law reasoning. (6)

Common law constitutionalism has various aspects. In this Article, however, I would like to define common law constitutionalism as follows, and I will use the term only in this way. According to common law constitutionalism, the long-accumulated wisdom of lawyers, which is mainly derived from ordinary civil and criminal cases, acquires constitutional status even if it is not explicitly enumerated in a written constitution. It is not based on temporal wisdom but based on long-accumulated wisdom. (7) It appraises lawyers' professional knowledge, not laymen's will. (8) Common law constitutionalism is derived from ordinary civil and criminal cases, not from constitutional cases, in its narrowest sense. (9) Moreover, a textual basis in a written constitution is not important. Common law constitutionalism assumes that such long-accumulated professional wisdom acquires constitutional status, which means that it can be used in judicial review or it can restrain arbitrary governmental power.

It is easy to suppose that common law constitutionalism can only exist based on the long-established common law tradition in Anglo-American countries. This Article argues, however, that a similar conception exists in Japan, a typical civil law country. Lawyers respect the legal wisdom accumulated through long time practice even in a civil law country. Such wisdom tends to be incorporated into constitutional principles. Common law countries do not monopolize the basic idea of common law constitutionalism. The purpose of this Article is to introduce constitutional practice of and constitutional cases from Japan and then analyze them from the perspective of their resemblance to common law constitutionalism. So far, previous American and Japanese studies have not analyzed them from this perspective; therefore, this Article contributes to a new understanding of Japanese constitutional law and comparative law. Furthermore, this Article reveals that the civil law and the common law traditions are not as different as we usually assume.

Part II of this Article examines the conception of a constitutional right in common law constitutionalism mainly by using historical sources. From seventeenth century England to nineteenth century America, the common law and a constitution had a deep relationship. Anglo-American lawyers thought that the common law could restrain governmental power and the common law had constitutional importance. Part iii considers Japanese constitutional cases following the principles of common law constitutionalism. For instance, it discusses cases in which the Supreme Court of Japan seemed to think that long-established rights embedded in basic legal practice are worth constitutional protection. …

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