Restrained Judicial Constitutionalism in Japan: A Reflection of Judicial Culture Rather than Political Interests

Abstract

The power of constitutional review conferred on the judiciary by Article 81 of the Japanese Constitution was supposed to revolutionise the polity into which it was imported. In reality, the Japanese judiciary has exhibited a notoriously restrained form of constitutionalism characterised by the accordance of significant deference to government policy and interpretive restraint in the absence thereof. This paper examines the phenomenon of restrained judicial constitutionalism in Japan, with reference to the consequential dichotomy between the literal and actual scope of constitutional rights protection, in order to argue that existing theories suggesting political influence over or intervention in judicial appointments and the performance of constitutional review are unsatisfactory and to proffer an alternative, more cogent theory explaining the phenomenon by reference to a culturally induced indigenisation of the power of constitutional review.