Judges in Dialogue

A Contextual Analysis of the Japanese Nationality Case of 2008

Abstract

This paper analyzes the constitutional decision making process of Japanese courts from the perspective of judges’ personal attitudes toward constitutional and legal interpretation. Further, the paper analyzes the various organizational influences upon judges. Thus, the paper sees the court and its decision making in the dynamic, political context of human behavior and institutional relationships. In particular, this paper centers its analysis on the Japanese nationality case of 2008. The Japanese Supreme Court, in a rare exercise of its power of judicial review, held a portion of the law unconstitutional. This paper focuses on the Tokyo District Court decision which essentially served as a draft for the Supreme Court decision, and finds that the judge of the Tokyo District Court seems to have been instrumental in bringing out this case. This judge has been in an extensive “dialogue” with the more conservative Tokyo High Court over various areas of administrative law where the discretion of the government and individual rights had come into conflict. His decisions have clarified the attitudinal conflict between judges in these areas. In addition to personal attitudes, the paper finds that organizational influences had an effect on the judges’ decision making. In particular, the differences between the Tokyo High Court and the Tokyo District Court, the composition of the court that handled the cases (the decisions were written by panels of 3 judges), the career track of the judges, and the trend within the Supreme Court all seems to have influenced the judges. On these points this paper presents a preliminary analysis, and a systematic evaluation which applies this analytical perspective to a wider set of data shall be a promising field of inquiry for the study of law and politics in Japan.