[1] 27 Keishu 265 (Sup. Ct, G. B., Apr. 4 1973). English translation found in Haley, J.O & Henderson, Dan. F., Law and the Legal Process in Japan, Vol. 2, University of Washington, Seattle, 1988, pp75-109.
[2] Tomatsu, H "Equal Protection of the Law" in Luney, P. R. Jr & Takahashi , K. (eds), Japanese Constitutional Law, University of Tokyo Press, , Tokyo, 1993, p187 at 188.
[3] Tomatsu, above n 2 at p 189. Okudaira pointed out in 199 that the Supreme Court of Japan has only declared provisions unconstitutional on five occasions: Okudaira, Y., "Forty years of the Constitution and Its various influence: Japanese, American, and European" in Luney, P.R., & Takahashi, K. (ed), Japanese Constitutional Law, University of Tokyo Press, , Tokyo, 1993, p1 at pp21-23. It is likely that this situation still remains. No further reports on cases whereby legislative provisions are declared unconstitutional are found in 1994-1997 issues of Waseda Bulletin of Comparative Law, which contains digest of most important judicial decisions. Nor can reports or critiques on cases in which a legislative provision is declared unconstitutional can be found in Hata, H. & Nakagawa, G., Constitutional Law of Japan, Kluwre Law International, The Hague, 1997, the 1994 to 2000 issues of Osaka University Law Review, Hitotsubashi Journal of Law and Politics, and Kansai University Review of Law and Politics and 1994 to 1999 issues of Kobe University Law Review (International edition).
[4] Tomatsu, above n 2 at p 191.
[5] See: anonymous, "Diet seeks to curb domestic violence" (7 April 2001) The Japan Times Online, accessed at http://www.japantimes.com, 09/08/01 5:25Pm.
[6] I adopt Taylor's definition of culture: "Culture of Civilization, taken in its wide ethnographic sense, is that complex whole which includes knowledge, belief, art, morals, law, custom, and any other capacities and habits acquired by man as a member of society" (Tylor, E, Primitive Culture: Researches Into the Development of Mythology, Philosophy, Religion, Art and Custom (1871) 1958, Gloucester, Mass., Vol 1, 1.).
[7] This is illustrated by the Aizawa court's ambivalent attitude towards the equality principle when the application of the principle confronts Japan's traditional values such as filial piety. Filial piety is a core value of Confucianism. "Filial piety" in Confucianism did not regard children as an independent existence. There the relation between parents and children is governed by the rule of authority and subordination in contrast with the relation between independent personalities and the difference of "Son" (respectable) and "Hi" (low)... exists eternally, and to observe the unbreakable status order is an absolute demand. In a word, filial piety is morals for children to obey parents like slaves. The Confucianism teaches that the favour of parents is higher than mountain and deeper than sea, to devote the fidelity of infinite and amountless service, to adore and obey them, and to serve them by denying oneself are the contents of the filial piety in Confucianism; and the utmost of it is that children should keep the attitude of children even when parents do not keep the attitude of parents" (Above n1 at 98 per Shimomura J.) According to Shimonura, the majority's view that respect and gratitude to ascendants deserves the protection of criminal law was formed under the influence of the Confucian idea of filial piety (Above n 1 at 97). Confucianism has helped shape Japan's cultural predisposition. That is why the majority's reaction on this issue can be seen as cultural.
[8] The role of 'culture' in Japanese law can be contentious. Hamano observes that "culture undoubtedly plays an important part in the unfolding of any society, an certainly does so in Japan ... . Culture is riven with contradictions based on age, class, gender and political orientation; it is malleable, and subject to conscious creation and manipulation. Attempts to understand the Japanese Constitution without a firm grasp of history omit the political, and so risk the distortions of orientalism." ("Incomplete revolutions and not so alien transplants: The Japanese Constitution and human rights" (1999) 1 U.Pa.J.Const. L 415 at 420.) That is why the court's attitude towards the equality principle is discussed in this paper from a cultural and historical (and geographical) perspectives.
[9] The penalties under Article 200 are death penalty or life imprisonment at forced labor, whereas ordinary homicide attracts penalties ranging from death penalty to three years' imprisonment with forced labor. It is possible for an accused indicted under Article 19to have sentence suspended. "[I]t is only when the sentence is for imprisonment for not more than three years that the court can suspend the execution of the sentence (for a period of not less than one nor more than five years). Thus an application of Article 200 deprives the accused of the opportunity of obtaining a suspension of sentence, unless the court finds the act was done in self-defence or to avert imminent danger, or that the offender was of 'unsound mind'": Tanaka, H. (Assisted by Smith, M.), The Japanese Legal System: Introductory cases and Materials, University of Tokyo Press, Tokyo, 1976, at p 729. The minimum punishment able to be imposed for parricide under Article 200 is three years and six months imprisonment at forced labor. Under Article 66 of the Criminal Code the court is given the discretionary power to reduce the sentence where extenuating circumstances exist. Article 68(2) provides "When imprisonment at forced labor for life or an imprisonment for life is to be reduced, a limited term of imprisonment at forced labor or imprisonment for not less than seven years shall be imposed" (Emphasis added). Article 68(3) stipulates: "When a limited term of imprisonment at forced labor or imprisonment is to be reduced, the term of punishment shall be decreased by one half" (Emphasis added). Under the Criminal Code reductions can be made twice at maximum: Aizawa v Japan, per the majority in Haley & Henderson, above n 2, at p80.
[10] Haley & Henderson (1988) at p78.
[11] Ibid.
[12] Ibid. The majority did not provide any reason for this holding.
[13] Ibid.
[14] Id, 79
[15] Ibid.
[16] Ibid.
[17] Id, 95
[18] Id, 80
[19] Id, 81
[20] Haley & Henderson (1988) at p 97 per Shimomura J.
[21] Ibid.
[22] Takayanagi, K "A Century of Innovation: The Development of Japanese Law, 1868-1961" in Von Mehren, A. T. (ed), Law in Japan, the Legal Order in a Changing Society, Harvard University Press, Cambridge, Mass., 1963, p 17.
[23] See a discussion on this case in Brown, C.W., "Japanese approaches to equal rights for women: The Legal framework" (1979) 12(23) Law in Japan: An Annual, 29.
[24] Haley & Henderson (1988) at pp79-80.
[25] Jowell, J.L. & Lester, A., "Proportionality: neither novel nor dangerous" in Jowell, J.L. & Oliver, D (ed) New Directions in Judicial Review, Stevens, London, 1988, p51.
[26] See notes 49-55 below and the accompanying text.
[27] Schwarze, J., European administrative law (1992), Sweet & Maxwell, London, 687.
[28] Nolte, G., "General principles of German and European administrative law - A comparison in historical perspective" (1994) The Modern Law Review 191 at 193.
[29] Nolte (1994) at p 193.
[30] Schwarze (1992) at p 687; Nolte (1994) at p 193.
[31] Schwarze (1992) at p 688.
[32] See Haley & Henderson (1988) at p81. This argument is reinforced by the statistics provided by Tanaka J., which showed that among a total of 621 parricide cases within 18 years from 1952 to 1969 in only five cases (0.18%) death penalty was imposed and in a majority of the cases, the perpetrators were only sentenced to less than five years' imprisonment at forced labour: Haley & Henderson (1988) at p90.
[33] Haley & Henderson (1988) at p81.
[34] Id, 89. Compare punishment provided for ordinary homicide under Article 199, "A person who kills another person shall be published with death or imprisonment at forced labour for life or for not less than three years".
[35] Id, 89
[36] Id, 105
[37] See Haley & Henderson (1988) at pp78-79.
[38] Whether Japan's constitutional order was imposed by the Americans can be a moot point. As Hamano points out "[v]irtually every aspect of it (the Japanese Constitution) ... is highly controversial and contested." (Hamano (1999) at 417) (Although Hamano herself believes that the Japanese Constitution "was imposed on an extremely reluctant conservative Japanese government" (Hamano (1999) at 415.)
[39] Hiraguchi v Hiraguchi, 41 Minshu 408 (Sup. Ct., G.B., Apr. 22 1987), Sumiyoshi Inc v Governor; Hiroshima Prefecture, 29 Minshu 572 (Sup. Ct., G.B.,Apr. 30 1975) Kurokawa v Chiba Prefecture Election Commission 30 Minshu 3 (Sup. Ct. G.B., 4 Apr. 1976); Kanao et al v Hiroshima Prefecture Election Commission
[39] Minshu 5 (Sup Ct. G.B, 17 July 1985).
[40] The two cases are Kurokawa v Chiba Prefectgure Election Commission 30 Minshu 3 at 223 (Sup. Ct., G.B., 4 April 1976) and Kanao et al Hiroshima Prefecture Election Commission 39 Minshu 5 at 1100 (Sup. Ct., G.B., 17 July 1985). In both of the cases the Court declared the apportionment provision enacted for election unconstitutional on the ground that the unequal weight of the votes cast , which was caused by population shift, was excessive and the ratio of discrepancy in voter representation contravened, inter alia, the constitutional guarantee of equality under law under Article 14 of the constitution.
[41] Minshu 408 (Sup. Ct., G.B., Apr. 22 1987)
[42] Ibid at 330-333.
[43] Sumiyoshi Inc v Governor; Hiroshima Prefecture, 29 Minshu 572 (Sup. Ct., G.B.,Apr. 30 1975)
[44] Emiliou, N., The Principle of Proportionality in European Law: A Comparative Study, Kluwer Law International, London, 1996, p23.
[45] The Constitution of Japan, Art. 13.
[46] Ibid. Art. 14
[47] Ibid. Arts 19-23.
[48] Kirk, J. "Constitutional Guarantees, Characterisation and the concept of Proportionality" (1997) 21 MULR 1, at p9.
[49] [1986] 1. S.C.R. 103. For a detailed treatment on the Oakes case and the proportionality principle, see Hogg, P., Constitutional Law of Canada, Thomson Canada Limited, Ontario, 1997, 4th ed., pp863-905; Sharpe, R. J. & Swinton K. E., The Charter of Rights and Freedoms, Irwin Law, Ontario, 1998, pp42-53.
[50] Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54, at 65 per Gummow J.
[51] Kirk (1997) at p20.
[52] 198 US 45 (1905).
[53] 264 US 504, 517 (1924).
[54] Stone, A., "The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication" (1999) 23 MULR 668, at pp691-694.
[55] Brewer-Carias, A.R., Judicial Review in Comparative Law, Cambridge University Press, Cambridge, 1989, p175. Also, as Brown points out, the most common form of analysis common to the Article 90 (of the Civil Code) is whether employment policies are "rationally related" to "legitimate objectives" - typical US constitutional language (hence concepts) (Brown (1979) at 44).
[56] Emiliou (1996) p37; Kirk (1997) at p19.
[57] Kirk (1997) at p19.
[58] Brown (1979) at 34.
[59] See Weber's discussion in Weber, M., Critique of Stammler, The Free Press, NY, 1977, p 65.
[60] Being a country of islands lying off the eastern end of the old world, Japan is separated by more than 100 miles fro Korean and 450 miles from China by open sea: Reischauer, E., The Japanese Today: Change and Continuity, Belknap Press, Cambridge, Mass., 1995, p 31. The distance between Japan and the mainland of this closest neighbour "in the time of primitive navigation must have constituted a formidable barrier to the rest of the world": ibid.
[61] Reischauer (1995) at p 31.
[62] Ibid.
[63]Id, 32
[64] Ibid.
[65] Id, 46
[66] Of course cultural borrowings from China and Korea are not Japan's native culture, but as will be argued later in the article, Japan began to be nurtured by the cultures from China and Korea when it was quite young and some elements of Chinese and Korean cultures (especially Chinese) have become a part of the intrinsic culture of Japan.
[67] Reischauer (1995) n 67, at pp33-35. Note that the degree of cultural homogeneity in Japan is debatable issue. Ainu, which in Kanji means "barbarians" had a different culture. In the second half of 1890's a serious laws and regulations were passed to ban some of Ainu people's cultural practice and assimilate the Ainu people. See more discussion on this issue in Levin, M., "Essential commodities and racial justice: Using constitutional protection of Japan's Indigenous Ainu People to inform understandings of the United States and Japan" (2001) 33 N.Y.U,J,Int'l L. & Pol. 419, 419-445.
[68] The notion of equality is said to be deeply rooted in the teaching of Christianity. One principle of Christianity is that all human beings are equal since they are all God's children. For further discussion, see Kelly, J. M. A Short History of Western Legal Theory, Clarendon Press, Oxford, 1992, pp104-105; 146-148. The legal expression of the notion of equality did not exist until the entry into force of Japan's new Constitution drafted by the American occupying force in 1947
[69] See below n 80 - 100 below and the accompanying text.
[70] Watanabe, S., The Peasant Soul of Japan, St Martin's Press, NY, 1989, p 85.
[71] Id, 42
[72] A further example of preserving harmony evidenced during the war occurred within the Navy. Vice-Admiral Nagumo was appointed as the Commander-in-Chief of the task force for Hawaii battle. This was a battle of aircrafts and aircraft carriers. Vice-Admiral Nagumo, though a torpedo expert, was an amateur when it came to aircrafts and aircraft carriers. Rear-Admiral Yamaguchi Tamon was regarded as the best candidate for the Commander-in-Chief of the Pearl Harbour operation since he had the right air-battle experience and expertise. But he was not appointed. The only reason was Nagumo was a cadet of the class 36 of the Naval Academy and Yamaguchi belonged to class 40. If a less senior graduate was appointed to a position which is higher than that held by a more senior graduate of the Academy the harmony within the Navy would be destroyed. Again, the appointment has resulted in the loss of the battle, and eventually of the Navy itself: Watanabe (1989) at pp43-45. These examples show that the Japanese would try to preserve internal harmony at any cost, even at the risk of being destroyed by an external force.
[73] Watanabe (1989) at p 84.
[74] Id, 86
[75] Ibid.
[76] Hahn, E. J., Japanese Business Law and the Legal System, Quorum Books, Westport, Conn., 1984, p 34.
[77] Tanase, T. "The Management of Disputes: Automobile Accident Compensation in Japan" (1990) 24 Law & Soc. Rev. 651 at 653.
[78] On this topic, see Okudaira (1993), at pp20-23.
[79] Little, R "Confucianism, Daoism and Japanese Business Success" in Ishido, K and Myers, D (ed), Japanese Society Today: Perspectives on Tradition and Change, Central Queensland University Press, Rockhampton, 1995, p143.
[80] Ryckmans, P., "An Introduction to Confucius" (March 1995) Quadrant 18.
[81] Ni, Z., et al, Zhonghua Faiyan Siqian Nian (Four Thousand Years of Chinese Law), Qunzhong Press , Beijing, 1987, p75.
[82] Reischauer (1995) at p15.
[83] Young, M & Jameson, C.C.H, "Introduction to Japanese Law" in (1988) CCH International, Japan Business Law Guide, Vol I, para 1-100.
[84] Ch'u, T., Law and Society in Traditional China, Mouton, Paris, 1961, p231.
[85] Ch'u (1961) at p226; Chen P.M, Law and Justice: The Legal System in China - 2400 B.C. to 1960 A.D., Dunellen, NY, 1973, p26.
[86] Chen (1973) at p27.
[87] It should be noted that another important element of Confusianism is Yue, or music: Music aims at homogeneity; Li aim at differentiation. Music unites the homogenous; Li distinguish between differences": Ch'u (1961) at p232. On the first blush, music seems to be inconsistent with Li, for it aims at homogeneity whereas Li aims at differentiation. However, what music really aims at was securing the harmonious utterance of people's voices: Ch'u (1961) at p271. In other words, music ensures the harmonious operation of the 'natural differences' in the society and secures people's uniform observation of Li. Therefore, the pursuit of harmony and homogeneity helps secure perpetuating the inequality aimed to achieve by Li.
[88] Ni, et al (1987) at p75.
[89] Id, 44
[90] See comment by Li Dazhao on this issue in his book An Economic Interpretation of the Changes in Modern China, quoted in Luo, A., et al (ed), An Encyclopaedic Dictionary of Chinese Language (Hanyu Da Cidian), Vol 4, The Chinese Encyclopaedia Press, Shanghai, 1990, p196.
[91] Henderson, D.F., "Chinese influences on Eighteenth Century Tokugawa Codes" in Cohen, J., et al (ed), Essays on China's Legal Tradition, Princeton University Press, Princeton, NJ, 1980, pp 270-271.
[92] See above n 14 above and the accompanying text.
[93] Schwarze (1992) at p 550 (footnotes omitted).
[94] Ibid.
[95] d'Entreves, A.P, Natural law: an introduction to legal philosophy Hutchinson University Library, London, 2nd ed., 1970, p39.
[96] Ishida, T., "Fundamental human rights and the development of legal thought in Japan" (1975) 8 Law in Japan: An Annual 46.
[97] Frenchmen Gustave Boissonade and Georges Bousequet were invited by the Japanese government to teach French law in the newly founded Ministry of Justice Law School, which was led by the two men. Boissonade and Bousequet were also instrumental in the compilation of Japan's first Civil Code, which was basically a copy the Code Napoleon: Mukai, K. & Toshitani, N., "The Progress and Problems of Compiling the Civil Cide and the Early Meiji Era (Translated by Dan Fenno Henderson)" , 1 (1967) Law in Japan 25, pp 36, 39-40.
[98] Mukai & Toshitani, above n 104 at p 47-48.
[99] 4 Keishu 2037 (Sup. Ct. G.B. Oct. 11 1950), Rev'g 4 Keishu 2070 (Fukuoka Dist. Cit., Lisuka Br., Jan. 9, 1950).
[100] Tomatsu (1993) at p189.
[101] Haley, J.O., Law and Society in Contemporary Japan: American Perspective Kendall/Hunt Pub. Co., Dubuque, 1988, p29
[102] Id, 29
[103] Id, 30
[104] Id, 29
[105] Id, 30
[106] Henderson, D.F., "Chinese Influences on Eighteenth Century Tokugawa Codes" in Cohen, J et al (ed), Essays on China's Legal Tradition, Princeton University Press, Princeton, NJ, 1980, p 270, Oba, O. "Edo Period Studies on T'ang, Ming and Ch'ing Law" in McKnight B.E.(ed), Law and the State in Traditional East Asia, University Hawaii Press, Honolulu, 1987, p 132.
[107] Haley, J. O., Authority without Power: :Law and the Japanese Paradox, OUP, NY, 1991, pp 31-37; Kitagawa, Z. "Theory Reception - One Aspect of Development of Japanese Civil Law Science (translated by Ronald Lee) (1970) Law in Japan 1, pp3-5.
[108] Steiner, K "Postwar Changes in the Japanese Civil Code" (1950) 25 Washington Law Review 286 at p286.
[109] Reischauer (1995) at pp44, 47.
[110] Id, 43
[111] Id, 78
[112] Halay (1991) at pp32-33.
[113] Id, 33
[114] Id, 33
[115] Id, 47
[116] Kades, C., "The American Role in Revising Japan's Imperial Constitution" (1989) 104 Political Science Quarterly 215 in Dean, above note 54, at p534.
[117] Ishkawa, A., "Alternative Dispute Resolution (ADR) in Japan" (1995) 1 Yearbook Law & Legal Practice in East Asia, 121 at p 129.
[118] On this topic, see Ward, R, "The Origins of the Present Japanese Constitution", (1956) 50 Am. Pol. Sci.Rev. 980, pp982-990.
[119] The other two cases fall under equal protection in the political process. The are: Kanao v Hiroshima Election Mgmt. Comm'n, 39 Minshu 1100 (Sup Ct., G.B. 17 July 1985) and Kurokawa v Chiba Prefecture Election Comm'n, 30 Minshu 223 (Sup. Ct., G.B., Apr. 14, 1976).
[120] Haley (1991) at p 21.
[121] For a good discussion on the concept and content of the equality principle, see Hogg, P., Constitutional Law of Canada (1997), Carswell, Ontariao, 1429-1444.