Author:	Charles Qu BA, LLB, LLM Lecturer, Griffith University Law School
Subjects:	Comparative Law Europe (Other articles) Japanese law (Other articles)
Issue:	Volume 8, Number 2 (June 2001)
Category:	Refereed Articles

Contents:

• Introduction
• The Aizawa case
• Facts and judgment
• Discussion
• Ruling 1: The Notion of Filial Piety at Work
• Ruling 2: A notion of proportionality?
• A cultural and historical construction of the Japanese court's attitudes towards the reception of the spirit of western law
• Isolation and homogeneity
• The Spirit of Harmony
• Confucianism
• The Reception of Foreign Laws
• Concluding discussion
• Notes

The author gratefully acknowledges the helpful comments and suggestions made on earlier drafts of this Article by Professor Rosemary Hunter, Professor John Dewar, Dr Michael McShane, Associate Professor Marlene Le Brun and an anonymous referee.

Introduction

1. An old case sometimes deserves a thoughtful and critical review, especially when it is pertinent to the understanding of a newly constructed legal regime and the ratio of the case has remained to be fully appreciated. One of such cases is Japan v Aizawa[1] The Aizawa case is a landmark case in Japan's judicial review jurisprudence. It is the first case in which the Supreme Court of Japan held a legislative act unconstitutional under Article 81 of Japan's Constitution [2] It is also the first of the five cases in which the Supreme Court has declared a provision unconstitutional on the ground of infringement of the equality principle enshrined in Article 14 of the Constitution[3] Notwithstanding its prominence in Japan's constitutional jurisprudence, the basis that the Supreme Court adopted in the exercise of its power of judicial review remains to be clarified. [4] Aizawa, on the other hand, is also the most authoritative legal statement on the issues of violence against women and killing within the family. In that connection, the case will be valuable in the understanding of The Law on Prevention of Spouse Violence and Protection of Victims, Japan's first anti-domestic violence law, which was passed in April 2001. [5] Moreover, the Aizawa case also serves as a good example as to how cultural factors[6] can affect legal judgments in a country where the law is transplanted from a radically different culture.[7]

2. The objective of this paper is of twofold. First, an attempt will be made to clarify the basis the Aizawa court adopted in exercising its power of judicial review, given that this is something that has not been satisfactorily done yet, mentioned above. Secondly, an effort will be made to expand on how cultural values affected the court's judgment in the Aizawa case and to analyze the courts' attitude towards the equality principle and the spirit of western law in general from a cultural and historical perspective[8]

3. The article is organized into two parts. The first part summarises the facts and considers the basis the Court adopted in arriving at the judgment. This part will also discuss issues debated in the court such as the appropriateness of exercising the Court's power of judicial review, the technique applied in adjudicating on the constitutionality of the impugned provision, and the tension between the preservation of traditional Japanese values and the application of the principle of equality. The seconda part analyses cultural and historical factors contributing to the formation of the Japanese judiciary's attitude towards the reception of the spirit of western law. The topics discussed include the relationship between Japan's geographical location and its national spirit, influence from China on the formation of Japan's cultural predisposition as well as historical reasons for Japan's reception of foreign laws.

   The Aizawa case

   Facts and judgment

4. Aizawa was raped by her own father when she was only fourteen. Thereafter her father forced her to keep a spousal relationship with him for fifteen years. Five children were born of this incestuous relationship. Aizawa later fell in love with a male colleague and wished to marry him. On learning of this Aizawa's father falsely imprisoned and menaced her. In desperation, the accused strangled her father to death when he was harassing her one night in October 1968.

5. The issue facing the Supreme Court of Japan was whether Article 200 of the Criminal Code, which provided for a more severe penalty for the killing for one's lineal ascendants than ordinary homicide, which was provided under Article 199[9] contravened Article 14 of the Constitution, which provides that " All people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin"[10]

6. The first issue facing the court was whether family status, which is not expressly listed in the latter part of Article 14, was included as a prohibited basis for discrimination under Article 14 of the Constitution. If it did not, differential treatment on the ground of family status would not, prima facie, infringe the equality principle embodied in Article 14. On this issue, the Court reaffirmed the ruling of its en banc decision in 1962 (E No. 1472 on May 1964) that the items listed in the latter part of the Article are explanatory, not restrictive[11] This meant that family status could be regarded as falling under Article 14. It followed that providing different treatments based on the accused person's family status is prima facie discriminatory. However, whether Article 200 was unconstitutional, the majority held, depended on a determination as to whether there were reasonable grounds for the discrimination.[12]

7. The second issue facing the court, therefore, was whether there were reasonable grounds for the discriminatory treatment of parricide perpetrators under Article 200[13] The Court's judgment on this issue was a two-step one. First, the court ruled that prima facie, Article 200's purpose of penalising perpetrators of parricide more severely than ordinary murderers was not "immediately unreasonable" and Article 200 did not infringe Article 14 of the Constitution ("Ruling one"). The majority reasoned that parricide was a more serious violation of social morality than ordinary murder and respect for ascendants was one of the most fundamental social mores which deserved the protection of criminal law.[14] The court, however, declared Article 200 to be unconstitutional on the ground that the disproportionality between the punishment prescribed under Article 200 and the achievement of the relevant legislative purpose rendered the discrimination unreasonable (Ruling two).[15]

   Discussion

8. My discussion will focus on the majority's rulings on the second issue it had to consider, namely, whether there were reasonable grounds for the discriminatory treatment of parricide perpetrators under Article 200. I start with Ruling 1 of court on this issue.

   Ruling 1: The Notion of Filial Piety at Work

9. As mentioned above, the majority refused to invalidate Article 200 on the ground that the provision, of itself, was in breach of the equality principle under Article 14. However, this ruling was not based on any legal reasoning but on the majority's value judgment. The majority held that the enactment of a parricide provision did not violate the equality principle under Article 14 because relatives were bound together by spontaneous respect and deep affections towards each other and the respect and gratitude towards ascendants was basic social morality. Such spontaneous affections and universal ethics deserved the sanction of criminal law. Parricide "is repugnant to the basic principle of human ethics" and deserved strong denunciation[16]

10. This ruling does not seem to rest on a firm basis. Just as Irokawa J, who delivered a concurring judgment, points out, spontaneous respect and affections between relatives do not exist only between children and parents[17] They also exist among other types of family relations, such as husband and wife, brothers and sisters. The basis of this ruling of the majority therefore seems to rest solely upon the notion of filial piety. Leaving aside the merit of upholding the value of filial piety, this ruling seems to render the majority judgment, as a whole, somewhat inconsistent.

11. If filial piety deserved the sanction of criminal law, then a special provision for parricide which prescribes a less severe punishment than that provided under Article 200 but more severe than that provided under Article 199 would have been an appropriate choice. This would be inconsistent with the majority's ruling that the provision on ordinary homicide, i.e. Article 199, was sufficient for the punishment of parricide[18] It would also be inconsistent with the majority's argument that many cases showed that the unethical nature of parricide was not always strong[19] in other words, many cases show that parricide does not deserve a separate provision.

12. Another flaw in this ruling is that the majority seemed to be of the opinion that because filial piety was a "universal ethic" and parricide was repugnant to it, it hence deserved more severe punishment. Three observations can be made on this opinion. First, filial piety may not be a universal ethic and separate provision for parricide may not have been a universal phenomenon. The notion of filial piety originated from ancient China. It is a virtue regarded as the most important in Confucianism. Because of the influence of ancient Chinese culture over Japan, filial piety had come to be regarded as a basic moral principle which governed the warrior's society of the Tokugawa period together with the notion of "loyalty"[20] By the beginning of the Meiji period filial piety had come to be regarded as if it were an eternal and universal ethics as a result of a measure taken by the government to implement its "enlightenment policy". As Shimomura J observed in his judgment, "the idea was fostered in the background of the special family system in a certain period of history, and conversely, constituted its spiritual prop of the system"[21] If the notion of filial piety is only a doctrine under Confucianism and was fostered during a certain period of Japanese history to support Japan's now abolished family system, how can it be argued that the notion of filial piety is eternal and universal. It is at least difficult to argue that the idea of filial piety has been embraced by the westerners. For example, the ancient Greeks did not provide for parricide in their criminal code[22] Nor did any modern western nations do so.

13. Secondly, homicide against anybody is repugnant to the basic principle of human ethics and deserves strong denunciation. It is hard to argue that killing a neighbour is more ethical than killing one's ascendant. Moreover, again, to support a provision which aggravates punishment for a crime because the victim is the perpetrator's ascendant seems to militate against the majority's own ruling that the punishment prescribed in the provision for ordinary homicide was sufficient for the attainment of the relevant legislative purpose.

14. Finally, even the majority themselves recognized that Japan's family system, in which filial piety, as an ideological basis for the enactment of Article 200, was deeply rooted, was abolished by the 1947 Constitution. That being so, it would be hard to argue that filial piety deserves the sanction of criminal law.

    Ruling 2: A notion of proportionality?

15. As mentioned above, the test the majority applied in adjudicating on the constitutionality of Article 200 of the Criminal Code was to see whether the discrimination provided under Article 200 had reasonable grounds. It is therefore possible that the test applied by the majority was the "reasonable discrimination doctrine" developed by the Tokyo District Court in the Sumitomo case (The Sumitomo doctrine).[23] The majority, however, did not expressly discuss whether the test applied was indeed the Sumitomo doctrine. Nor did it refer to or formulate any tests for the doctrine. The legal instrument the majority applied to invalidate the impugned provision, it is submitted, appears to be more akin to the principle of proportionality, although the word "proportionality" was not used by the court. The majority held, in effect, that the quantum of the penalty Article 200 provided was disproportionate to the achievement of the relevant legislative purpose, which was the maintenance of "spontaneous affection" of children towards their ascendants and the "universal ethics" and "basic morals" of "respect and gratitude to ascendants".[24]

16. Since the doctrine of proportionality, as an administrative law and constitutional law principle, originated in Germany[25] and the German law principle has influenced the development of the principle in other legal systems,[26] my discussion will be based on the German notion of the principle.

17. Under the German principle, the word proportionality carries a three-fold meaning. That is:

    (i) "[T]he state measures concerned must be suitable for the purpose of facilitating or achieving the pursued objective";
    (ii) The suitable measures must be necessary for obtaining the pursued objective, and
    (iii) The measure adopted must not be disproportional to the restrictions which it involves.[27]

    A word is needed to elucidate the meaning of these tests. The German word from which "suitability" is translated is "geeignethiet". Its more accurate meaning is the 'capacity of furthering an aim'.[28] It means "a measure which is incapable of furthering its aim is necessarily excessive; unduly burdensome or disproportionate".[29]

18. The necessity test referred to in (ii) above means that the measure employed must be tested on whether the authority concerned has no other mechanism at its disposal which is less restrictive.[30] The test mentioned under (iii) above, the proportionality test in its strict sense, means "the seriousness of the intervention and gravity of the reasons justifying it are in adequate proportion to each other".[31]

19. The test the majority applied in the Aizawa case, it is submitted, was identical to the necessity test. The majority reasoned that in many parricide cases the perpetrators were only sentenced to three and a half years' imprisonment at forced labour, the minimum sentence allowable for the crime. This fact, the majority argued, showed that the unethical nature of an offense in such cases was not always strong.[32] This means that the heavy penalty provided under Article 200 is not necessary for most cases. Further, the majority held that "it is not impossible to achieve the aim by applying the provision for an ordinary homicide".[33] This means that less restrictive alternative mechanism is available for the attainment of the relevant legislative purpose. Therefore the aggravation of punishment provided for parricide under Article 200 is disproportionate to the achievement of the legislative purpose in view.

20. The basis on which the court exercised its power of judicial review in the Aizawa case thus seems to be the failure of Article 200 to meet the requirements under the principle of proportionality.

21. However, it is not clear whether the majority was consciously applying the principle of proportionality when they handed down the judgment. The criticism leveled at the majority's "ruling 2" on the part of some members of the court serves to increase the suspicion.

22. For example, Tanaka J., one of five judges who delivered concurring judgments, criticized the majority for being inconsistent in their argument in that even under Article 200 the punishment may be reduced to three and a half years[34] His honour proposed that the problem of whether the punishment provided under Article 200 is too severe should be examined "from the viewpoint of whether it falls under the definition of cruel and unusual punishment of Article 36 of the Constitution" rather than from the perspective of equality.[35]

23. The answers to Tanaka J.'s criticism can be summarised in two points. First, the problem here is whether a heavier punishment provided under a different category of homicide is necessary for the advancement of the relevant legislative purpose. If the question is answered in the negative, the provision must be invalidated, notwithstanding it is only a marginally excessive means to obtain the legislative purpose in question. Secondly, the proportionality issue raised here is not the proportionality between the crime and the punishment per se. Rather, it is the proportionality between the punishment imposed and the legislative purpose in question. Therefore, Article 36 of the Constitution does not directly answer the question here.

24. Justice Shimoda's dissenting judgment also illustrates a lack of understanding as to the nature of the proportionality principle. Shimoda J ruled that a decision as to whether the punishment provided under Article 200 for parricide is too excessive was dependent on the court's value judgment and "to discuss it abstractly would lead to arbitrariness".[36] Again, Shimoda J's criticism may be disposed of with two short answers. In the first place, a decision as to whether there is an alternative, less restrictive, means for the achievement of the relevant legislative purpose involves very little arbitrary element. Secondly, the discussion of the majority on this principle was not carried out "abstractly". The question was raised by, and discussed in the context of, the present case. It was also considered against the background of the history of the application of Article 200[37]

25. Regardless of whether the court applied the proportionality principle consciously in the Aizawa case, the significance of the majority's invocation of what is in substance the notion of proportionality should not be underestimated. First, the principle of proportionality served in this case as an ideal means for the Japanese judiciary to compromise between, on the one hand, the need not to affront traditional values of filial piety, and on the other, to uphold western values enshrined in its constitutional order constructed for them by the Americans[38] Invalidating Art. 200 on the equality principle would have involved a blunt refutation of traditional values such as the notion of filial piety, which apparently was more difficult to do for the Japanese judiciary then achieving the same purpose by the application of the principle of proportionality. The proportionality principle, on the other hand, is more technical in nature in that the application of it is based on a measurement of two objectively certifiable reference points - the legislative purpose and the measure taken for the achievement of this purpose.

26. Secondly, the application of what I see as the proportionality principle in Aizawa laid the foundation for the further development of judicial review jurisprudence where the employment of (what can be seen as) the proportionality principle features prominently. In the forty-seven years after Aizawa, the Supreme Court has on four more occasions declared a challenged provision to be unconstitutional[39] In two of the four cases the Supreme Court invalidated the impugned laws by applying what can be regarded as the principle of proportionality, whereas in the remaining two cases there was no need to invoke the principle[40] In Hiraguchi v Hiraguchi[41] the court held Art. 186 of the Forestry Law, which prohibited alienation of property interest by a minority shareholder of a jointly-owned forest property, to be unconstitutional on the ground that the measure taken under the legislation was unsuitable for the achievement of the legislative purpose of stabilization of forest management[42]

27. In Sumiyochi Inc v Governor, Horoshima Prefecture[43] the court held that Article 6, paragraphs 2 and 4 of the Pharmaceutical Affairs Law which provided geographical restrictions as a condition for granting a license to new pharmacies to be unconstitutional on the ground that the measures taken under the provision were not really capable of furthering the aims sought to be achieved under the impugned provision. In both Hiraguchi and Sumiyochi the impugned provisions were invalidated for failing to meet what is the first test under the German version of the proportionality principle, i.e. they were not capable of furthering the purported purposes behind the enactment of the provisions.

28. The fact that since Aizawa the notion of proportionality has been invoked in all reported cases where the application of the principle was appropriate suggests that the principle has been applied as a most important legal principle and instrument for constitutional adjudication in Japan. However, the concept of the principle of proportionality was never expressly defined and discussed in any of the cases where the principle has actually been applied. This fact casts some doubts as to whether the judges had the principle clearly formulated in their minds before applying it and whether the principle has been expressly recognized as a fundamental constitutional principle, as is the case in Germany and in the European Union. The advantage of expressly adopting the principle of proportionality and affording it the status of fundamental constitutional principle would be as follows:

    First, A well-formulated principle will provide a clearer conceptual framework, hence a higher degree of certainty, for future constitutional law adjudication;

    Second, Given Japan's constitutional arrangement, the application of the proportionality principle is technically viable.

    The doctrine of proportionality, as an instrument of judicial review, presupposes the court's ability to engage in judicial review. The power of judicial review is given to the judiciary by virtue of Article 81 of the Constitution.

29. In addition, the chief function of the principle of proportionality is the protection of citizens' basic rights[44] The court's ability to resort to the principle therefore largely hinges on the existence of a constitutional guarantee of basic rights. The Japanese Constitution guarantees individuals an impressive list of basic rights and freedoms such as the right to be respected as individuals[45] the right to be treated equally under the law[46] and the freedoms of thought, religion, assembly, association, speech, press and "all other forms of expression" as well as the freedom to choose and change one's residence and occupation, and academic freedom[47] The existence of constitutionally guaranteed basic rights, makes it technically possible to evaluate a means and a legislative objective pursued through the means, against the frame of reference of a guaranteed basic right in accordance with the standards of suitability, necessity and proportionality stricto sensu.

30. Thirdly, under a constitutional regime where basic rights are protected it is often necessary to invoke the notion of proportionality to determine the constitutionality of a challenged provision which was enacted to advance certain public interests in derogation of certain protected individual rights.

31. Constitutional guarantees are rarely seen as absolute. "That certain rights or interests are granted constitutional protection does not require that such matters outweigh all other public interests"[48] On the other hand, that a constitutional guarantee is not absolute does not mean it can be restricted in any manner in pursuit of any other public interest. The court, when adjudicating the constitutionality of an impugned provision which infringes a protected right, therefore must determine the weight of the competing public interests (if the guarantee of a certain right is viewed also as a form of public interest). To do this, some form of conceptual tool is needed to help ascertain what type and level of restriction of protected rights is legitimate. The doctrine of proportionality has been developed to meet this need.

32. Although the proportionality principle was first developed in Germany, the application of the principle of proportionality has not been limited to civil law jurisdictions such as Germany, France and the European Union. The courts in common law jurisdictions have also felt the need to invoke the notion of proportionality in exercising their power of judicial review. In Canada, the Supreme Court of Canada has established the basic conceptual framework for its version of the proportionality principle in R v Oakes[49] In Australia, since 1983 "the proportionality doctrine has taken root and, indeed, extended its reach into the heartland of federal constitutional law"[50] In Hong Kong the doctrine of proportionality has been adopted by the Hong Kong Court of Appeal[51] In the United States, the Supreme Court started to closely scrutinize both the ends sought and the means employed in challenged legislation at least from the beginning of the last century onwards. In early cases such as Lochner v New York[52] and Jay Burns Baking Co. v Bryan[53] the impugned legislation was invalidated on the ground that the provisions failed to meet what can be regarded as the necessity test under the proportionality principle. Namely, the means adopted unnecessarily infringes individuals fundamental rights and less drastic measures were available for the achievement of the purported legislative objectives. Moreover, the 'ad hoc balancing' method used by the US courts in their adjudication of First Amendment cases is quite similar to the proportionality test[54] Indeed, in its application of what I see as the proportionality principle in Aizawa, the Supreme Court of Japan might have been influenced by the American judicial review jurisprudence, give that Japan's judicial review jurisprudence "has been developed through interpretation of the American Constitution"[55]

33. Proportionality, of course, is not the only conceptual tool developed to determine the legitimacy of restriction on constitutional guarantees. A competing test applied by both common law courts and civil lawyers is the "reasonableness" test which asks whether the restriction is reasonably imposed[56] Indeed, the "reasonable discrimination" doctrine has been applied by the courts in Japan, discussed above. However, as Kirk argues, whereas the proportionality test provides an objective standard of a means-ends relationship, the reasonableness test constitutes a subjective, unilateral standard which may be seen as hiding the reasons supporting, and values behind, the assessment involved[57] The proportionality test is therefore definitely the preferable of the two. Brown also points out that the concept of reasonableness developed by the courts in Japan is devoid of concrete tests and the application of the Sumitomo doctrine "often involves the courts in the making of implicit, if not explicit, value judgement in the guise of determining what is "reasonable".[58]

34. Given that the proportionality test is the best option among the available approaches, and the cases following Aizawa illustrate the important role of the notion of proportionality in Japan's judicial review jurisprudence, the Supreme Court of Japan may wish to consider expressly affirming and adopting the doctrine of proportionality when opportunities arise to provide more certainty for this area of law. If I am wrong in suggesting that the notion of proportionality has been invoked in Japan's supreme court's constitutional adjudication and it is regarded more proper to adopt or retain the "reasonableness discrimination" doctrine, then it might be a good idea to inform the contents of the doctrine with the method of determining reasonableness under the proportionality principle.

    A cultural and historical construction of the Japanese court's attitudes towards the reception of the spirit of western law

35. As my discussion in Part I shows, the Aizawa court could have invalidated Article 200 outright on the basis of infringing the equality principle enshrined in Article 14 of the Constitution. However, the court could not bring itself to do so. It was only able to declare Article 200 unconstitutional on the basis of the lack of proportionality between the punishment prescribed under the impugned provision and the achievement of the relevant legislative purpose.

36. What then are the reasons behind the Japanese judiciary's ambivalent attitudes towards the equality principle as was demonstrated in the Aizawa case? Since any social phenomenon is caused by a unique combination of different factors[59] the phenomenon with which we are concerned here must be viewed as the result of the interplay of a constellation of different factors. Whilst not ruling out other factors contributing to the Japanese jurists' perception of the equality principle, my analysis focuses on cultural and historical considerations. The factors proposed to be isolated and examined include: geographical factors, the influence of Confucius, the spirit of harmony, and the reception of foreign laws.

    Isolation and homogeneity

37. Geographically Japan is characterized by its relative isolation[60] This isolation has enabled the Japanese, more than any other peoples, "to develop on their own and in their own way"[61] It also has made other peoples perceive them as being different and this made the Japanese acutely aware of the difference between themselves and other peoples. This awareness has made the Japanese extremely conscious of the distinction between their native culture and cultural borrowing[62] As Reischauer points out "[t]he civilization of any country is much more the product of external influences than of native invention"[63] Given the psychological effect of isolation, given that geographical separation helps produce a uniform cultural pattern[64] cultural borrowing for a country like Japan naturally causes a painful fear of losing its cultural identity. This fear would naturally result in an excessive adherence to one's native culture. The Japanese' tendency of cultural conservation is illustrated by the fact that the orchestral court music and dance learnt from ancient China and Korea are still preserved in Japan "as probably the world's oldest authentic music and dance tradition"[65] whereas it is doubted whether these traditions have been conserved in the countries of their origin[66]

38. Isolation also brought about a high degree of racial and hence cultural homogeneity in Japan[67] A high degree of cultural homogeneity must have helped excite the distinction between native and borrowed cultural elements. It would have also been conducive to the rejection of those borrowed cultural elements that are not easily absorbed in the indigenous culture. Western legal culture, in which the principle of equality is a part, is of course part of the borrowed culture[68] As will be argued below, the cultural predisposition of the Japanese was conditioned by the classical Chinese philosophy, which advocates the perpetuation of inequality[69] It can thus be argued that cultural homogeneity in Japan must have helped reject the notion of equality before the law on the part of the Japanese people, including the Japanese jurists.

    The Spirit of Harmony

39. Relative insulation must also have helped produce an important element of the Japanese cultural predisposition - the tendency of preserving harmony. Japan is one of the most densely populated countries and regions in the world. For the large populace who live in the islands, the country is a cul-de-sac. It is impossible to expand the country's territory, in other words, to decrease the density of the population. Naturally, people who have to live closely next to each other have a greater chance to trespass. If people are to peacefully coexist within a limited space the preservation of harmony of the human relationship is of paramount importance.

40. Aside from the geographical factor the agrarian nature of ancient Japan was another factor contributing to the Japanese people's spirit of harmony. In a densely populated agrarian society where people are tied to land such as Japan, any trespass, any behaviour which disturbs the harmony within a village, may result in a discord between a family and the rest of the village for generations[70] Therefore internal discord is something to be avoided at any cost.

41. The importance of preserving harmony for the Japanese is evidenced in Prince Shotoku's Seventeen-Article Constitution promulgated in 604. The first Article provides "Regard harmony as of the foremost value". The fact that the preservation of harmony is provided in this early Constitution and the place of the Article in the Constitution (the first Article) demonstrates how important harmony was thought to be in Japan.

42. The importance the Japanese attach to harmony was also witnessed during the last war. Before the war between America and Japan broke out the highest commanding officers of the Japanese Navy were strongly opposed to a war with the Americans. The Navy, however, finally approved the war. When asked why the Navy approved the war, Admiral Shimada Shigetaro, who was the then Navy Minister, replied that since the Army was strongly for the war, a disapproval on the part of the Navy would destroy the harmony between the Army and the Navy. Admiral Shimada Shigetaro thought a destruction of the harmony between the Army and the Navy was the worst case - worse than hostility between Japan and the United States. He thought a compromise with the Army might win him some time during which he could take the Navy's "own step"[71] The result of the Japanese Navy's effort to preserve harmony between the Navy and the Army was, ironically, the complete destruction of Japan's armed forces[72]

43. The tendency of preserving harmony also exists in the province of law. In a traditional Japanese community, "when a crime is committed, a punishment greater than the formal punishment is inflicted because the village memory lasts for so many generations"[73] Hence "not to disturb harmony in the village is primary; that is a justice higher than justice"[74] Since litigation disturbs harmony in a community, one would still be a loser even if he wins a case - because he disturbs harmony. That is why many family constitutions in old Japan prohibited law suits. The constitution of a successful family actually provided "endure patiently and await your turn; do not go to law"[75] The spirit of harmony is also evident in the way Japanese conclude contracts with others. The aim of contracting includes the achievement of a harmony in a business relationship. The manner Japanese businessmen conclude their contracts, including pre-contract-making socialisation, also indicate the importance of achieving 'wa' (harmony)[76]

44. All the examples illustrated above seem to indicate that the spirit of harmony has been internalised by the Japanese people, in other words it has become part of their cultural predisposition. Since preservation of harmony gives predominance to the interests of the group, the rights of individuals are necessarily down-played by the Japanese courts in their adjudication. This partly explains why the Japanese are extremely non-litigious[77] and why the Japanese courts have a tendency to preserve the status quo in their adjudication. The Supreme Court's tendency to preserve the status quo, it is submitted, at least partly explains the reason for its inclination to reduce issues from a constitutional level to a technical level[78] This tendency is actually evidenced in Aizawa. By ruling that providing specifically for parricide is not an immediately unreasonable differential treatment on the ground of family status the majority aligned its position with that of the Diet, thus preserving the harmony between the Supreme Court and the Diet. By invalidating Article 200 of the Criminal Code on the ground of lack of proportionality, the Court managed to achieve what it wanted to do - to invalidate Article 200 on a more technical ground, which would help reduce the possible tension between the Court and the Diet caused by the outlawing of Article 200.

    Confucianism

45. Confucius lived between 551 and 479 BC.[79] For more than 2000 years since his time the teaching of Confucius has been a constant theme of China's culture and politics[80]

46. There is no doubt that the influence of Confucianism began to be felt in Japan at the very latest since the seventh century when Japan sent thousand of students to the T'ang Dynasty to study Chinese culture[81] Given that Japan was exposed to Chinese agricultural techniques as early as the second century[82] and that descriptions of Japan are found in China's historical record of third century[83] Confucianism may have started to exert its influence in Japan as early as the second or third century.

47. The crux of Confucianism is "Li" (rules of propriety or ceremony). As Li refers to a set of "rules of behaviour varying in accordance with one's status defined in the various forms of social relations"[84] its function is to achieve differentiation. The Confucian philosophy is based on the denial that uniformity and equality are inherent in any society and the belief that differences are in the very nature of things[85] The Confucian School believed that "only through the harmonious operation of these natural differences could a fair social order be achieved"[86] Obviously, the "harmonious operation" can only be achieved by practising Li, by treating people differently according to his/her status[87]

48. The T'ang Code, which the Japanese copied so avidly[88] embodied Confucius' idea of Li. Most of the Ten Abominations, which were non-commutable capital offences provided in the Code, were serious deviations from the norm of conduct prescribed by Li, such as plotting rebellion, great irreverence (to one's superiors) and lack of filial piety.

49. The reason for including the lack of filial piety in the Ten Abominations was that the keeping of a hierarchical order within the family was crucial to the preservation of feudal social order[89] for behaviour resulting from the lack of hierarchical order in a family may be imitated outside the family and bring about great irreverence to one's superior and eventually a rebellion[90]

50. The importance the Confucian School attached to filial piety and the place filial piety occupied in the T'ang Code, which Japan adopted in A.D. 702[91] must have influenced the Japanese judiciary's judgment on the value of filial piety and family order. It can be argued that this is one of the reasons why the majority in the Aizawa case held that respect and gratitude towards ascendants are basic social morals and universal ethics deserving the sanction of criminal law[92]

51. Confucianism has also directly influenced the Japanese jurists' understanding of the western idea of natural law and the equality principle.

52. In the nineteenth century, when western law was received in Japan the equality principle was regarded by the European jurists as "a purely formal legal rule with the aid of which uniform application of the law without regard to persons could be assured. Interpreted in this way, the equality principle merely meant that the law had to apply to everybody, that there were therefore no persons "exempt from the law" and that legal provisions had to be put into effect "strictly", hence without regard to person".[93] In this connection, as Schwarze observes, "law was understood as universal law".[94] That means the nineteenth century European jurists formulation of the equality principle was based on their perception of law as 'universal law', i.e. natural law, for natural law was defined by Christian jurists as "the general and primitive law of mankind",[95] that is, the universal law.

53. When the western concept of natural law was introduced to the Japanese it was "viewed through Confucian glasses.[96] For example, Tsuyoshi Mishma considered that all that was being taught by Biossonade [97] was that "one should not conduct his life acting against reason" and "reason" was contained in 'Li' taught by Confucius anyway.[98] This understanding of natural law was of course very different from the then European jurists' conception of natural law, which was perceived as the universal law that applies to everybody equally. If the observation of natural law means the practice of 'Li', then people should be treated differently according to his/her social status and any inequality is to be perpetuated. As a matter fact, this understanding of natural law is illustrated in a 1950 Supreme Court case on the constitutionality of Article 205, section 2 of the Criminal Code.[99] The impugned clause provides that persons who inflict bodily injury resulting in the death of their own or their spouse's lineal ascendants shall be punished more severely than those who inflict similar bodily injury on non-ascendants. The Supreme Court upheld the constitutionality of the clause on the basis that the clause regarding lineal ascendants "reflected a moral postulate and that the morality ruling relationships among family members involves a fundamental truth of universal human morality, and thus is in the realm of natural law".[100] What can be gauged from this case is that according to the then Supreme Court of Japan, what natural law demanded was to treat people according to their status, not to treat them equally regardless of who they were. This precedent on the constitutionality of Article 205, section 2 of the Criminal Code might have some bearing on why Aizawa court held that the provision for different treatment of parricide under Article 200 was not immediately unreasonable.

    The Reception of Foreign Laws

54. The reception of European law in the nineteenth century was Japan's second reception of foreign laws. The first reception occurred in the eighth century. It was the reception of Chinese law, the T'ang Code.[101] The legal history of Japan actually began with the reception of Chinese law.[102] The Yoro Code, which was promulgated in A.D. 702, was almost a direct copy of the code of the newly established T'ang Dynasty of China.[103] The Yoro Code set up the basic pattern for subsequent Japanese legislation.[104]

55. The reception, along with the reception of other aspects of the Chinese culture, transformed Japan from a primitive form of kinship into a lawgiving sovereign.[105] The influence of Chinese jurisprudence continued right through till the end of the Tokugawa period, which marks the beginning of reception of European law.[106] It is therefore fair to suggest that the Chinese jurisprudence and Chinese culture conditioned the soil in which European law was transplanted in the nineteenth century Japan. That partly explains why the spirit of western law, such as the principle of equality, was not fully imported along with the adoption of the codes and legal science from France and Germany[107] and the new Constitution from the United States of America. Further, Chinese culture and Chinese law were not received under any external pressure. The Chinese culture did not even come from China. It was spread to Japan via Korea.[108] The reason why the Japanese adopted Chinese law and culture lies, according to Reischauer, in the glory and appeal of the Chinese civilisation, then the most advanced in the world.[109] It perhaps was also because the Japanese felt more akin to the Chinese culture given their early exposure to it. Indeed, as mentioned above, the Japanese were so eager to learn from China that they even sent thousands of envoys to China in the seventh century to be educated there.[110] It would be safe to suggest that the living norm of Japan has been largely built upon the influence of Chinese culture.

56. On the contrary, the reception of the western law in late nineteenth century was a result of external pressure. Commodore Perry's landing in Japan in 1853 resulted in unequal treaties between Japan and America and some European countries.[111] These treaties provided for extraterritoriality of foreign laws and deprived Japan of its customs autonomy.[112] Obviously, the only way to rectify the harm caused by extraterritoriality and the loss of customs autonomy was a revision of the treaties. The ability to revise the treaties hinged upon the power relationship between Japan and the western countries.[113] To improve Japan's position in the power relationship Japan needed to adopt the same type of political and economic system as that of the western countries.[114] To achieve this purpose, it was imperative to adopt western laws since western political and economic systems are largely regulated by law. Also, the imperialistic powers would not have agreed to revise the unequal treaties if Japan had not adopted western laws to provide security for commercial transactions between Japan and western countries.[115]

57. Hence Japan's adoption of European laws in the nineteenth century was a choice made to avoid colonisation. The same would hold true regarding Japan's reception of the new Constitution. The Japanese had to accept the new Constitution imposed by the Allied Occupying forces since the Occupation Forces were not to be withdrawn until the objectives under the Potsdam Declaration were achieved. The objectives of the Declaration included the assurance of "freedom of speech, of religion, and of thought, as well as respect for fundamental human rights" and the establishment of a responsible government.[116] That is to say, the acceptance of the new constitutional arrangement was a pre-requisite for gaining back Japan's sovereignty from the foreign occupying forces.

58. It will therefore be fair to say that Japan did not receive the western laws because the techniques and the spirit of the foreign laws held any appeal to them or western laws were perceived to be suitable for Japan's living norm. On the contrary, the reception of the Western laws has created a wide gap between the living norm and legal norm in Japan.[117] The reason for the reception of western laws explains why the Japanese did not effect a wholesale importation of the spirit of western laws when they copied western codes and legal science and adopted the new Constitution. The existence of the artificially created gap between the living norm and legal norm in Japan determined why the spirit of western law has not always been embraced by the Japanese judiciary.

59. The refusal of the majority in Aizawa to invalidate the impugned provision on the ground of differential treatment based on family status and the dissenting judgment of Justice Takeso Shimoda, who was quite comfortable with values of the family system, indicates that the Japanese court still had reservation in accepting some fundamental western democratic values although the gap between the living norm and legal norm in Japan must have been considerably narrowed since the end of World War II, especially after the new Constitution was imposed on the Japanese by the Americans.[118]

    Concluding discussion

60. Technique-wise, the majority's judgment demonstrated in Aizawa both the court's sophistication and immaturity in exercising its power of judicial review. Ideologically, the Aizawa case evidenced how traditional values can determine the court's pattern of legal reasoning, or its willingness to engage in legal reasoning on certain issues.

61. The majority's ruling on the 'immediate' reasonableness of Article 200 is puzzling and a little disappointing. In arriving at their judgement, the majority did not engage themselves in any legal reasoning on whether the legislative classification made between parricide and ordinary homicide was a reasonable one. Instead, their honours upheld the reasonableness of Article 200 on the basis that the value in the notion of filial piety deserved the protection of the Criminal Law. The fact that the ruling was based, not on legal reasoning but squarely on their value judgment (as to whether filial piety deserves the protection of criminal law) renders the ruling open to debate.

62. The failure to outlaw Article 200 for breaching the equality principle under Article 14 clearly indicates the high degree of influence of traditional values such as filial piety over the Japanese judiciary. This view is supported by the fact that the Supreme Court has invalidated legislation challenged on the ground of equality on three occasions.[119] Of the three, the only occasion in which the Court failed to declare the impugned provision unconstitutional for breaching Article 14 was Aizawa, which was the only case out of the three that involved differential legislative treatment based on family status.

63. However, the deficiency of the majority's ruling on the equality principle was technically remedied by the Court's invalidation of Article 200 by invoking the notion of proportionality. The basis of judicial review adopted by the majority in this case can therefore be viewed as Article 200's breach of the proportionality principle.

64. The notion of proportionality was invoked in all ensuing cases where impugned legislation was declared to be unconstitutional and where there was a need for resorting to the principle. However, in none of these cases has the doctrine of proportionality been expressly formulated before it was actually applied. Given the need for consistency and the value of the proportionality principle in constitutional adjudication, the Court should clearly articulate and explicitly adopt the principle when opportunities arise.

65. The failure of the Supreme Court of Japan unequivocally and unreservedly to endorse the equality principle in Aizawa demonstrates that the discrepancy between the living norm and legal norm in Japan is wider than in most other industrialized countries. This discrepancy can only be explained by looking at Japan's history and the Japanese people's cultural predisposition, which helped form its living norm.

66. Japan's cultural disposition was determined by a combination of factors such as its geographical location, the nature of the early stage of its civilisation and its early exposure to the Chinese culture. The interplay of these factors has shaped Japan into a culture where indigenous and foreign elements were consciously differentiated, where harmony was upheld as the highest value, where social hierarchy and inequality were accepted and even valued. These characteristics of Japanese culture are almost diametrically opposed to the values reflected in the western legal tradition such as the notion of equality. For example, the spirit of harmony will deny the emphasis of individual rights; the old Chinese law emphasised duties whereas Roman-law-based western law is centred around rights;[120] Confucius' Li aimed at differentiation whereas the principle of equality demands equal treatment before the law.[121]

67. History forced Japan to abandon its old legal norm developed from its living norm and to adopt a new legal norm which is totally foreign to its culture. It is the gap between these two norms that has limited the extent to which and speed at which the western values are received by the Japanese court.