The idea that only humans and entities with legal personhood can be subjects of rights was import... more The idea that only humans and entities with legal personhood can be subjects of rights was imported from Western jurisdictions when Japan embarked on its modernization drive in the 1860s. Also, transplanted continental doctrines that confer broad discretion to public authorities to approve or disapprove development plans, as well as related complex litigation procedures, seem to be remnants of an industrial past, embodying the essence of nineteenth-century legal formalism, disconnected from the traditional Japanese outlook on nature. It may very well be the case that the useful life of those rules and doctrines has long since passed.
In light of the recent trend that more and more countries around the world are beginning to respect the Rights of Nature, it appears to be high time for Japanese lawyers and legislators to squarely face the “inescapable question” of whether or not to continue to adhere to the existing legal framework as noted by the judges in Amami Black Rabbits v. Governor of Kagoshima Prefecture, for otherwise Japanese law may soon be a specimen of the archaic mindset that is becoming extinct in other jurisdictions, characterized by an inflexible dichotomy between humans and nature. Fortunately, the various litigation attempts of private individuals and organizations examined in this report seem to provide a strong indication that the underlying legal consciousness of the Japanese general public is developing towards an understanding of the Rights of Nature. There is, therefore, hope that courts will begin to entertain lawsuits brought by nature or natural objects in the not too distant future.
Just as communications between doctors and patients are treated as confidential in many legal sys... more Just as communications between doctors and patients are treated as confidential in many legal systems around the world, due to candor on the part of the patient being essential in order for the doctor to determine the appropriate treatment, privacy of communications between lawyers and clients has been legally protected in many jurisdictions, as it is considered indispensable for effective advocacy and counseling. Japan in effect follows this principle to some extent; the difference being that the right to refuse production of professional communication documents is generally understood as a reflection of the duty of an attorney, who can be forced to yield to the need of a criminal investigation, as opposed to the client having the right to legal advice on a totally confidential basis. The approach recently taken by Canada, based on its Charter of Rights and Freedoms, which stands in the same Anglo-American tradition as the present Japanese constitution, has rich implications for the future course of Japanese law, in that its Supreme Court has characterized solicitor-client privilege as one of the embodiments of the principles of fundamental justice, thereby elevating it to the status of a constitutional right.
"Relict species" is a fascinating concept even to outsiders to biogeography. The Amami black rabb... more "Relict species" is a fascinating concept even to outsiders to biogeography. The Amami black rabbit, or Pentalagus furnessi, for example, is said to have begun to inhabit the Japanese Archipelago more than several million years ago, when it was connected to the Eurasian continent. Having a stocky body and ears much smaller than those of other leporids, this primitive rabbit is generally considered to be an example of a living fossil. Today it lives on two tiny subtropical islands in the southwestern part of Japan, long after its closely related species died out in mainland Asia. A phenomenon similar to this occasionally takes place in the world of law as well. Unlike the chubby rabbit living in the deep forest, however, fossilized rules unreflective of social progress often have a serious negative impact on people's lives, particularly when they concern family law matters. When outdated statutes are in conflict with constitutional norms, the judiciary is expected to nullify them. This paper is an attempt to assess the significance of two recent Japanese Supreme Court decisions (the remarriage prohibition case and the mandatory common surname case), whose focal point was the justices' preparedness to invalidate obsolete statutory provisions relating to marriage, originally imported from, but now defunct in continental European countries. Although the Japanese Supreme Court's jurisprudence has been traditionally characterized by judicial self-restraint, there appear to be signs of change in a direction that is more in line with the egalitarian trend of the times. The justices' growing sense of obligation to fulfill a constitutional mandate to secure equality may have far-reaching implications for a variety of future cases involving minorities, such as when the issue in question is about same-sex marriage.
In Chapter 10 of the Tale of Genji entitled Sakaki or "the Sacred Tree," Retired Emperor Kiritsub... more In Chapter 10 of the Tale of Genji entitled Sakaki or "the Sacred Tree," Retired Emperor Kiritsubo passes away, apparently without realizing that Prince Reizei, the heir apparent to the throne, is not his son, but is a son of Genji. In recent years, technological progress in DNA testing has undermined the foundation of such blissful ignorance to a significant extent. Interestingly, however, this does not mean that a "child" is deprived of his or her legal status as a child whenever it is established that he or she is actually not a child of the "parent." Under what circumstances, then, should a putative child, after being discovered not to be a biological child of the putative parent, be nevertheless legally treated as his or her child? This article will first introduce two cases, one from the United States and the other from Japan, both of which address this important question, and explain what happened in each case. It will then compare the requirements to be met in order for a non-biological, non-adoptive parent-child relationship to be formally recognized under each law. This discussion will show that, although there are a number of distinctions between U.S. and Japanese case law, parenthood that is not based on a genetic connection and which is different from adoption is occasionally considered legitimate in both countries, and that the recognition of such a parent-child relationship can be seen as an example of how significant one's intent and another person's reliance on that intent are in each legal culture. The emphasis on intent and reliance in this context is best understood as a reflection of modern legal consciousness, which generally attaches great importance to personal autonomy. An individual is deemed to be capable of making a well-considered, rational decision for himself or herself; accordingly, the law holds him or her responsible when another individual has reasonably relied on his or her statement. This individualistic image of family relations may have multiple implications for the future of family law, especially as it relates to issues concerning bioethics and law, such as gestational surrogacy.
In Kikuya v. Taniuchi (2010), the Supreme Court of Japan, which appeared so reluctant to exercise... more In Kikuya v. Taniuchi (2010), the Supreme Court of Japan, which appeared so reluctant to exercise its power of judicial review in the past, ruled that a Shinto shrine's use of city-owned land free of charge was impermissible under Article 89 of the Japanese Constitution, a provision which prohibits the use of public resources for religious purposes. Until this decision was made, the purpose and effect test modeled after Lemon v. Kurtzman had been in place in case law, but the Court's own narrow formulation of the doctrine had essentially prevented Japanese taxpayers from successfully litigating separation of church and state cases. Since the adoption of the test in 1977, there was only one judgment invalidating governmental action in this field. In applying the much more flexible "totality of the circumstances" analysis, the majority in Kikuya demonstrated its awareness of the highly political context of the case and of its possible international implications. The motivation for judicial activism seems clear: the perception of the need for increased protection of fundamental constitutional values and for eradication of pre-modern customs in order to "occupy an honored place in an international society striving for . . . the banishment of . . . oppression and intolerance" as outlined in the Preamble to the Constitution of Japan. This paper first introduces the Japanese constitutional scheme as it relates to separation of church and state, and explains the case law governing this area. It then compares it with the new approach taken in Kikuya. Following the discussion about the Supreme Court's recent willingness to break with precedent in high-profile cases involving constitutional issues, it concludes with a suggestion that the development is best understood as an example of the judiciary's self-conscious efforts to rectify unconstitutional governmental practice in light of the progress of globalization. Indicating that the Court is prepared to fulfill its mandate to the fullest extent, Kikuya has signaled a new era for law and religion in Japan, whose constitution is a sister to the United States Constitution but whose people's religious consciousness stands in sharp contrast with that in the United States.
Unlike the United States Constitution, which has been amended only twenty-seven times since its a... more Unlike the United States Constitution, which has been amended only twenty-seven times since its adoption in 1787, state constitutions are generally easy to reform and have been changed quite often throughout American history. As the validity of a state constitutional amendment is frequently challenged in court, state judiciaries play a significant role in monitoring the process of constitutional changes. One of the typical situations in which the court steps in to issue an injunction prohibiting the state from enforcing an otherwise effective constitutional amendment is when it actually contains two or more amendments, despite having been presented to the voters in the form of a single constitutional amendment. This so-called single subject rule is designed to prevent voter confusion and ballot manipulation. Relying on state constitutional provisions embodying this rule, the Oregon Supreme Court invalidated a comprehensive constitutional amendment that would have established a variety of “crime victims' rights,” placed before the voters through an initiative petition and approved by a 59 to 41 percent margin. The decision can be best understood as an expression of the state supreme court's commitment to the rule of law, according to which constitutional discourse about individual rights should not be dominated by populist politics.
経済のグローバル化に伴い、異質な文化や社会との接触が増えるにつれ、アメリカの企業の間では「多様性」を価値ととらえる見方が広がってきている。マイノリティの存在が職場に多様な視点をもたらし、活力をも... more 経済のグローバル化に伴い、異質な文化や社会との接触が増えるにつれ、アメリカの企業の間では「多様性」を価値ととらえる見方が広がってきている。マイノリティの存在が職場に多様な視点をもたらし、活力をもたらすとする見方である。しかし、もし企業がマイノリティに属する求職者や従業員を優先的に扱い、「顧客がマイノリティを求めているので」という理由で別扱いを正当化するとすれば、これは「顧客が白人を求めているので」という理由で黒人が排除された人種差別の時代の論理と何ら変わるところがない。差別をめぐる訴訟が早くから提起され、差別の解消に裁判所が熱心に取り組んできたアメリカにおいて、このような「逆差別」の問題は多くの議論を呼んできた。雇用の場面において、マイノリティのみ一次選考を自動的に通過させる制度や割当枠方式が違法とされる一方、マイノリティの姿を肯定的に印象づけるポスターの掲出は合法とされている判例の現状からは、すべての個人を個人として尊重するアメリカ法の立場が見て取れる。今後の展望と日本への示唆を示したい。
As early as 1983, Japan’s Health and Welfare Ministry had reason to know that the use of unheated... more As early as 1983, Japan’s Health and Welfare Ministry had reason to know that the use of unheated blood products by hemophiliacs was infecting them with HIV, the AIDS virus. Although heated (and safe) blood products were already available from the United States, government approval in Japan was deliberately delayed for almost three years while local pharmaceutical companies developed the products. By the time the unheated blood products were all withdrawn from the market, many of Japan’s hemophiliacs had contracted HIV. A number of them, or their survivors, sued the government and the pharmaceutical companies. At the end of the consolidated trials, but before handing down their opinions, the two District Courts handling the cases made proposals for settlement that were accepted by the parties. The courts’ reasons for recommending settlement were that time was of the essence in order to get relief to those still suffering and that remedies unavailable via the courts were possible through settlement. (This is a translation of an article written by Professor Takehisa Awaji, a leading expert on Japanese tort law.)
The idea that only humans and entities with legal personhood can be subjects of rights was import... more The idea that only humans and entities with legal personhood can be subjects of rights was imported from Western jurisdictions when Japan embarked on its modernization drive in the 1860s. Also, transplanted continental doctrines that confer broad discretion to public authorities to approve or disapprove development plans, as well as related complex litigation procedures, seem to be remnants of an industrial past, embodying the essence of nineteenth-century legal formalism, disconnected from the traditional Japanese outlook on nature. It may very well be the case that the useful life of those rules and doctrines has long since passed.
In light of the recent trend that more and more countries around the world are beginning to respect the Rights of Nature, it appears to be high time for Japanese lawyers and legislators to squarely face the “inescapable question” of whether or not to continue to adhere to the existing legal framework as noted by the judges in Amami Black Rabbits v. Governor of Kagoshima Prefecture, for otherwise Japanese law may soon be a specimen of the archaic mindset that is becoming extinct in other jurisdictions, characterized by an inflexible dichotomy between humans and nature. Fortunately, the various litigation attempts of private individuals and organizations examined in this report seem to provide a strong indication that the underlying legal consciousness of the Japanese general public is developing towards an understanding of the Rights of Nature. There is, therefore, hope that courts will begin to entertain lawsuits brought by nature or natural objects in the not too distant future.
Just as communications between doctors and patients are treated as confidential in many legal sys... more Just as communications between doctors and patients are treated as confidential in many legal systems around the world, due to candor on the part of the patient being essential in order for the doctor to determine the appropriate treatment, privacy of communications between lawyers and clients has been legally protected in many jurisdictions, as it is considered indispensable for effective advocacy and counseling. Japan in effect follows this principle to some extent; the difference being that the right to refuse production of professional communication documents is generally understood as a reflection of the duty of an attorney, who can be forced to yield to the need of a criminal investigation, as opposed to the client having the right to legal advice on a totally confidential basis. The approach recently taken by Canada, based on its Charter of Rights and Freedoms, which stands in the same Anglo-American tradition as the present Japanese constitution, has rich implications for the future course of Japanese law, in that its Supreme Court has characterized solicitor-client privilege as one of the embodiments of the principles of fundamental justice, thereby elevating it to the status of a constitutional right.
"Relict species" is a fascinating concept even to outsiders to biogeography. The Amami black rabb... more "Relict species" is a fascinating concept even to outsiders to biogeography. The Amami black rabbit, or Pentalagus furnessi, for example, is said to have begun to inhabit the Japanese Archipelago more than several million years ago, when it was connected to the Eurasian continent. Having a stocky body and ears much smaller than those of other leporids, this primitive rabbit is generally considered to be an example of a living fossil. Today it lives on two tiny subtropical islands in the southwestern part of Japan, long after its closely related species died out in mainland Asia. A phenomenon similar to this occasionally takes place in the world of law as well. Unlike the chubby rabbit living in the deep forest, however, fossilized rules unreflective of social progress often have a serious negative impact on people's lives, particularly when they concern family law matters. When outdated statutes are in conflict with constitutional norms, the judiciary is expected to nullify them. This paper is an attempt to assess the significance of two recent Japanese Supreme Court decisions (the remarriage prohibition case and the mandatory common surname case), whose focal point was the justices' preparedness to invalidate obsolete statutory provisions relating to marriage, originally imported from, but now defunct in continental European countries. Although the Japanese Supreme Court's jurisprudence has been traditionally characterized by judicial self-restraint, there appear to be signs of change in a direction that is more in line with the egalitarian trend of the times. The justices' growing sense of obligation to fulfill a constitutional mandate to secure equality may have far-reaching implications for a variety of future cases involving minorities, such as when the issue in question is about same-sex marriage.
In Chapter 10 of the Tale of Genji entitled Sakaki or "the Sacred Tree," Retired Emperor Kiritsub... more In Chapter 10 of the Tale of Genji entitled Sakaki or "the Sacred Tree," Retired Emperor Kiritsubo passes away, apparently without realizing that Prince Reizei, the heir apparent to the throne, is not his son, but is a son of Genji. In recent years, technological progress in DNA testing has undermined the foundation of such blissful ignorance to a significant extent. Interestingly, however, this does not mean that a "child" is deprived of his or her legal status as a child whenever it is established that he or she is actually not a child of the "parent." Under what circumstances, then, should a putative child, after being discovered not to be a biological child of the putative parent, be nevertheless legally treated as his or her child? This article will first introduce two cases, one from the United States and the other from Japan, both of which address this important question, and explain what happened in each case. It will then compare the requirements to be met in order for a non-biological, non-adoptive parent-child relationship to be formally recognized under each law. This discussion will show that, although there are a number of distinctions between U.S. and Japanese case law, parenthood that is not based on a genetic connection and which is different from adoption is occasionally considered legitimate in both countries, and that the recognition of such a parent-child relationship can be seen as an example of how significant one's intent and another person's reliance on that intent are in each legal culture. The emphasis on intent and reliance in this context is best understood as a reflection of modern legal consciousness, which generally attaches great importance to personal autonomy. An individual is deemed to be capable of making a well-considered, rational decision for himself or herself; accordingly, the law holds him or her responsible when another individual has reasonably relied on his or her statement. This individualistic image of family relations may have multiple implications for the future of family law, especially as it relates to issues concerning bioethics and law, such as gestational surrogacy.
In Kikuya v. Taniuchi (2010), the Supreme Court of Japan, which appeared so reluctant to exercise... more In Kikuya v. Taniuchi (2010), the Supreme Court of Japan, which appeared so reluctant to exercise its power of judicial review in the past, ruled that a Shinto shrine's use of city-owned land free of charge was impermissible under Article 89 of the Japanese Constitution, a provision which prohibits the use of public resources for religious purposes. Until this decision was made, the purpose and effect test modeled after Lemon v. Kurtzman had been in place in case law, but the Court's own narrow formulation of the doctrine had essentially prevented Japanese taxpayers from successfully litigating separation of church and state cases. Since the adoption of the test in 1977, there was only one judgment invalidating governmental action in this field. In applying the much more flexible "totality of the circumstances" analysis, the majority in Kikuya demonstrated its awareness of the highly political context of the case and of its possible international implications. The motivation for judicial activism seems clear: the perception of the need for increased protection of fundamental constitutional values and for eradication of pre-modern customs in order to "occupy an honored place in an international society striving for . . . the banishment of . . . oppression and intolerance" as outlined in the Preamble to the Constitution of Japan. This paper first introduces the Japanese constitutional scheme as it relates to separation of church and state, and explains the case law governing this area. It then compares it with the new approach taken in Kikuya. Following the discussion about the Supreme Court's recent willingness to break with precedent in high-profile cases involving constitutional issues, it concludes with a suggestion that the development is best understood as an example of the judiciary's self-conscious efforts to rectify unconstitutional governmental practice in light of the progress of globalization. Indicating that the Court is prepared to fulfill its mandate to the fullest extent, Kikuya has signaled a new era for law and religion in Japan, whose constitution is a sister to the United States Constitution but whose people's religious consciousness stands in sharp contrast with that in the United States.
Unlike the United States Constitution, which has been amended only twenty-seven times since its a... more Unlike the United States Constitution, which has been amended only twenty-seven times since its adoption in 1787, state constitutions are generally easy to reform and have been changed quite often throughout American history. As the validity of a state constitutional amendment is frequently challenged in court, state judiciaries play a significant role in monitoring the process of constitutional changes. One of the typical situations in which the court steps in to issue an injunction prohibiting the state from enforcing an otherwise effective constitutional amendment is when it actually contains two or more amendments, despite having been presented to the voters in the form of a single constitutional amendment. This so-called single subject rule is designed to prevent voter confusion and ballot manipulation. Relying on state constitutional provisions embodying this rule, the Oregon Supreme Court invalidated a comprehensive constitutional amendment that would have established a variety of “crime victims' rights,” placed before the voters through an initiative petition and approved by a 59 to 41 percent margin. The decision can be best understood as an expression of the state supreme court's commitment to the rule of law, according to which constitutional discourse about individual rights should not be dominated by populist politics.
経済のグローバル化に伴い、異質な文化や社会との接触が増えるにつれ、アメリカの企業の間では「多様性」を価値ととらえる見方が広がってきている。マイノリティの存在が職場に多様な視点をもたらし、活力をも... more 経済のグローバル化に伴い、異質な文化や社会との接触が増えるにつれ、アメリカの企業の間では「多様性」を価値ととらえる見方が広がってきている。マイノリティの存在が職場に多様な視点をもたらし、活力をもたらすとする見方である。しかし、もし企業がマイノリティに属する求職者や従業員を優先的に扱い、「顧客がマイノリティを求めているので」という理由で別扱いを正当化するとすれば、これは「顧客が白人を求めているので」という理由で黒人が排除された人種差別の時代の論理と何ら変わるところがない。差別をめぐる訴訟が早くから提起され、差別の解消に裁判所が熱心に取り組んできたアメリカにおいて、このような「逆差別」の問題は多くの議論を呼んできた。雇用の場面において、マイノリティのみ一次選考を自動的に通過させる制度や割当枠方式が違法とされる一方、マイノリティの姿を肯定的に印象づけるポスターの掲出は合法とされている判例の現状からは、すべての個人を個人として尊重するアメリカ法の立場が見て取れる。今後の展望と日本への示唆を示したい。
As early as 1983, Japan’s Health and Welfare Ministry had reason to know that the use of unheated... more As early as 1983, Japan’s Health and Welfare Ministry had reason to know that the use of unheated blood products by hemophiliacs was infecting them with HIV, the AIDS virus. Although heated (and safe) blood products were already available from the United States, government approval in Japan was deliberately delayed for almost three years while local pharmaceutical companies developed the products. By the time the unheated blood products were all withdrawn from the market, many of Japan’s hemophiliacs had contracted HIV. A number of them, or their survivors, sued the government and the pharmaceutical companies. At the end of the consolidated trials, but before handing down their opinions, the two District Courts handling the cases made proposals for settlement that were accepted by the parties. The courts’ reasons for recommending settlement were that time was of the essence in order to get relief to those still suffering and that remedies unavailable via the courts were possible through settlement. (This is a translation of an article written by Professor Takehisa Awaji, a leading expert on Japanese tort law.)
Uploads
Papers by Keisuke Abe
In light of the recent trend that more and more countries around the world are beginning to respect the Rights of Nature, it appears to be high time for Japanese lawyers and legislators to squarely face the “inescapable question” of whether or not to continue to adhere to the existing legal framework as noted by the judges in Amami Black Rabbits v. Governor of Kagoshima Prefecture, for otherwise Japanese law may soon be a specimen of the archaic mindset that is becoming extinct in other jurisdictions, characterized by an inflexible dichotomy between humans and nature. Fortunately, the various litigation attempts of private individuals and organizations examined in this report seem to provide a strong indication that the underlying legal consciousness of the Japanese general public is developing towards an understanding of the Rights of Nature. There is, therefore, hope that courts will begin to entertain lawsuits brought by nature or natural objects in the not too distant future.
Translation by Keisuke Abe
In light of the recent trend that more and more countries around the world are beginning to respect the Rights of Nature, it appears to be high time for Japanese lawyers and legislators to squarely face the “inescapable question” of whether or not to continue to adhere to the existing legal framework as noted by the judges in Amami Black Rabbits v. Governor of Kagoshima Prefecture, for otherwise Japanese law may soon be a specimen of the archaic mindset that is becoming extinct in other jurisdictions, characterized by an inflexible dichotomy between humans and nature. Fortunately, the various litigation attempts of private individuals and organizations examined in this report seem to provide a strong indication that the underlying legal consciousness of the Japanese general public is developing towards an understanding of the Rights of Nature. There is, therefore, hope that courts will begin to entertain lawsuits brought by nature or natural objects in the not too distant future.