Glimmers of Hope: The Evolution of Equality Rights Doctrine in Japanese Courts from a Comparative Perspective

Abstract

There has been little study of the analytical framework employed by the Japanese courts in resolving constitutional claims under the right to be treated as an equal and not be discriminated against. In the Japanese literature the only comparative analysis done focuses on American equal protection jurisprudence. This article examines the development of the equality rights doctrine in the Japanese Supreme Court from the perspective of an increasingly universal “proportionality analysis” approach to rights enforcement, of which the Canadian equality rights jurisprudence is a good example, in contrast to the American approach. This comparative analysis, which begins with a review of the theoretical foundation of the right, and the Canadian and American approaches, illustrates the inadequacy of the “unreasonable discrimination” test traditionally employed by the Japanese courts, and makes normative arguments for modification of the Japanese doctrine. While there are other significant factors that explain the Court’s failure to enforce constitutional rights in Japan, the article suggests that the weakness of the doctrine has been an important factor.

The article also examines evidence that there is a more sophisticated doctrine emerging, beginning with strong dissents in earlier Supreme Court judgments, through to the majority opinion of the Supreme Court in a 2008 judgment, all of which reflect an analytical framework that conforms to the standard proportionality analysis. The article argues that this trend should be encouraged, and one means of doing so would be for Japanese scholars to widen their comparative analysis of constitutional jurisprudence beyond that of the United States, as the American approach is not a helpful model for Japan. Finally, the article discusses what the comparative analysis of the Japanese experience may reveal about the American approach to equality rights, constitutional borrowing, and constitutional migration.