NYU legal scholar Frank Upham, this semester a visiting professor at UCLA, explains why judicial activism is more prevalent in Japan than in the United States. Listen to a podcast of his lecture.
We don't normally think of the Japanese courts as playing a fundamentally important role in Japanese politics and society.
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There is far less talk in Japan than in the United States about judges who engage in activism and impose their morals while ruling on the law.
Yet, at a Feb. 22, 2008, lecture at UCLA, one of the leading U.S. scholars of Japanese law argued that Japanese courts engage in judicial activism to a far greater extent than U.S. courts. The event was sponsored by the Paul I. and Hisako Terasaki Center for Japanese Studies.
"What [the courts] have done...is create social norms…in direct contradiction to legislatively created norms, statues, or the constitution," Upham said.
The Wilf Family Professor of Property Law at New York Univeristy, Upham this semester is a visiting professor at the UCLA School of Law. His Law and Social Change in Postwar Japan is a standard reference for discussions of Japanese law and its societal role in modern Japan.
Upham said Japan's courts are responsible for the country's low divorce rate. In one case, he said, a court ignored an entire section of the Japan's marriage law and explicitly stated that the primary role of courts was to protect "good morals." The court prevented a divorce in that case, one of many in which a husband was seeking to marry his mistress.
Every court in the world tacitly enforces its own set of morals, said Upham, but it is rare for any court to say so openly. He said he was puzzled that the Japanese public and government are not concerned about judicial activism in politics and appointments.
"We don't normally think of the Japanese courts as playing a fundamentally important role in Japanese politics and society," Upham said.
Upham used U.S. rulings as point of reference, saying that U.S. courts enforce social norms only when there is a clear legal precedent for doing so.
Discussing the case of Brown v. the Board of Education, which is sometimes viewed as an example of U.S. judicial activism, Upham said that the Supreme Court's ruling simply enforced the 14th amendment, which declared racial segregation unconstitutional.
A podcast of the Feb. 22 lecture is available online.