16 The courts

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“Given the awesome power of the System to deprive the Japanese citizen almost completely of the means to litigate, it should come as no surprise that action taken by the private individual against the government is virtually unthinkable. The Supreme Court refuses to use the powers of review given it by the post-war constitution as a means of safeguarding democracy. In combination with the far-reaching formal powers of government agencies in pursuing broad social policy, this has had the effect of almost totally insulating bureaucratic activity from judicial review. When activists persist in countering administrative decisions with lawsuits, the officials perceive this as a 'radical', almost violent action, hampering national policy-making.”
(van Wolferen 1990, 215)

In a more structural vein, what is also missing is a “court of appeal” where the government is itself held accountable for its power. That the “supreme” court in Japan early on abdicated its power to be a “constitutional court” means that every law passed in Japan is an abridgement on the constitution, and the right to challenge either law or practice is basically unavailable through the court system. The courts will only rule on how a particular practice might not reflect the intent or the wording of the law—not on the law itself. And it is precisely “the law” here, as (Thompson 1993, 34-35) notes, that should provide the opening that the judiciary makes in favor of those who are ruled through its use.

The close hold that the state maintains on the courts in Japan is fairly typical of the role that courts play under circumstances of State-nation modernity. Despite the physical existence of courtrooms in Japan, this state-nation has not yet undergone what Habermas called the “first wave of juridification,” in which the courts assume an emancipitory posture against the prior, sovereign order:

“ The first wave of juridification had a freedom-guaranteeing character to the extent that bourgeois civil law and a bureaucratic domination exercised by legal means at least meant emancipation from premodern relations of power and dependence. The three subsequent juridification waves guaranteed an increase in freedom insofar as they were able to restrain, in the interests of citizens and of private legal subjects, the political and economic dynamics that had been released by the legal institutionalization of the media of money and power. The step-by-step development toward the democratic welfare state is directed against those modern relations of power and dependence that arose with the capitalist enterprise, the bureaucratic apparatus of domination, and, more generally, the formally organized domains of action of the economy and the state. The inner dynamics of these action systems also unfold within the organizational forms of law, but in such a way that law here takes on the role of a steering medium rather than supplementing institutional components of the lifeworld” (Habermas 1989, 366).

Here, Habermas describes how the courts in the early development of nation-states, supply a “steering medium” that operates externally to both the state and the market. This operation has not occurred in Japan to date, and its lack is one of the hallmarks of Japan as a state-nation (see: State-nation modernity).

In terms of new social movements, the lack of courts of appeal increases the risk of protest, as this is subject to claims of illegality that cannot be subsequently countered by some court’s ability to overrule the state in the interest of the public. The public has, in fact, no proven, legal interest outside of that which is granted by the state in Japan.