Japan: Rule of Law, Constitutionalism and Democracy

1. Introduction

Asian culture and socio-economic conditions are not valid excuses to abandon the rule of law, constitutionalism and democracy. The veracity of this statement is illustrated by the success of many Asian democratic societies such as Taiwan, Hong Kong and Japan. This essay will focus on the example of Japan, an Asian country that has arguably been successful in implementing the rule of law, constitutionalism and democracy into its society. The three interlinking concepts of the rule of law, constitutionalism and democracy will be discussed in turn, along with an analysis of Japan’s endeavours in each regard. Finally, this essay will suggest an alternative position, that the argument that ‘Asian culture’ and ‘Asian values’ are valid excuses for suppressing the rule of law, constitutionalism and democracy is fundamentally flawed. Asia is not a monolithic culture. It is extraordinarily diverse, ranging across the political spectrum, and drawing on religion and tradition in ways that make a definitive articulation of what characterizes Asia’s ‘culture’ or ‘values’ impossible in any overarching or representative sense.

2. Rule Of Law
   1. What is it?

‘Rule of law is an essentially contested concept’.[1] The concept has different meanings to different people, and despite the endeavours of many it has no universal definition. Although there is contention surrounding the proper interpretation of the rule of law, its core meaning and basic elements are clear.[2] At its most basic, the rule of law stands for two propositions: no one is above the law, and equality of all before the law.

According to Randall Peerenboom, conceptions of the rule of law can be divided into two general types, ‘thin’ and ‘thick’. A ‘thin’ conception stresses the formal elements of the rule of law. For example, there must be laws that are accessible, generally applicable and reasonably acceptable. Laws must be clear, consistent, stable and enforced. A ‘thick’ conception incorporates elements of political morality (e.g. free market capitalism), forms of government (e.g. democratic) and human rights (e.g. libertarian).[3]  

2. Japan

According to the World Justice Project (WJP) Rule of Law Index 2019, Japan ranks 15^th in the world for the strongest adherence to the rule of law.[4] It falls closely behind Australia in 11^th and the United Kingdom in 12^th. The WJP Rule of Law Index measures the rule of law based on the experiences and perceptions of the public and in-country experts. The Index is the most comprehensive dataset of its kind, and is the world’s leading source for current and original data on the rule of law. The WJP Index measures countries’ performance across eight factors: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice.[5]

Japan today is a post-industrial economy with a mature legal system. According to John O’Haley and Veronica Taylor, the rule of law – both in its thick and thin versions – is visible and vibrant in Japan.[6] The rule of law in Japan evolved from the borrowing of legal institutions from China in the medieval period to the 19^th century use of the German concept of the Rechtsstaat.[7]Following the second world war, an Anglo-American version of the rule of law was introduced through the 1946 Constitution.[8] 
 

The vibrancy of the rule of law in Japan is illustrated by its successful court system, which is charged with the oversight of the executive branch of government and provided for in the 1946 Constitution.[9] Japanese people also enjoy a long list of constitutional guarantees for political, economic and social rights. Such guarantees and their implementation are taken seriously in Japan.[10] Japan is a great example of the fact that Asian societies are not necessarily resistant to the rule of law.

3. Constitutionalism

The rule of law and constitutionalism are interlinked. The rule of law is an element of constitutionalism. Constitutionalism includes other elements such as the separation of powers, political checks and balances, civil liberties, a written constitution, review of governmental actions and the peaceful transfer of political power.[11]

1. Japan

The Japanese 1946 Constitution is one of the world’s oldest and most effectively implemented basic laws.[12] Although the 1946 Constitution was imposed on Japan by United States occupying authorities after World War II, it has become central to the modern Japanese state and its people.[13] The Constitution has been embraced and adapted by the Japanese people and courts. It has enjoyed widespread popular satisfaction, support and respect.[14] It is not perfect, nor is any constitution, but is a strong success story of liberal constitutionalism in an Asian society.[15]

Since the Constitution’s introduction in 1946, commitments to international peace, human rights, and popular sovereignty have been central to Japan’s constitutionalism.[16] The individual Japanese enjoys a wide range of rights and freedoms under Chapter 3 Articles 11-40 and Article 97 of the Constitution. ‘All of the people shall be respected as individuals’ and these rights and freedoms are to be ‘the supreme consideration in legislation and in other governmental affairs’.[17] Progressively, social and political rights have enjoyed increased protection and promotion under Japanese law. In some areas, such as democratic stability, health care and education, Japan is now a world leader.[18]

Japan is an illustrative example of the fact that Asian culture and values are not necessarily resistant to constitutionalism. It supports the contention that Asian culture is not a valid excuse to abandon constitutionalism. The triumph of constitutionalism in Japan was determined more by politics and historical events (i.e. war and foreign intervention), than by culture and values.[19] According to Albert Chen’s study of the constitutional development in Japan and four other major Asian nations, there are ‘grounds for cautious optimism regarding the prospects of constitutionalism in Asia and its adaptability to Asian soil’.[20] Constitutionalism, although originally a Western concept, has universal appeal to address the fundamental issues of government, governance and political power in many modern Asian societies.[21]

4. Democracy

Democracy is an aspect of the rule of law and is a product of constitutionalism. Democracy is a system of government where the citizens exercise power by voting.

1. Japan

Since the Constitution’s introduction in 1946, Japan has enjoyed an unbroken succession of national and local elections under democratic law. All men and women over eighteen have the right to vote, and generally exercise that right more than in other non-compulsory electoral systems, such as America.[22] Since the 1990’s, an ongoing legal reform process has addressed issues of malapportionment and excesses in political fundraising, which have successfully reduced occasional instances of corruption. New reforms are continually being proposed to enhance Japan’s democratic leadership structure.[23]  Japan is an example of an Asian country that has successfully progressed into a democratic society, which supports the contention that Asian culture is not a valid excuse to abandon democracy.  

5. ‘Asian Values’ debate

Further or alternatively, I believe the argument that ‘Asian culture’ or ‘Asian values’ are valid excuses for suppressing the rule of law, constitutionalism and democracy is fundamentally flawed. Such a position was first coined by the former Prime Minister of Singapore, Lee Kuan Yew, and it stands for a system of values, where economic development is paramount over individual civil and political rights.[24] According to theories of ‘Asian values’, such values encompass certain Confucian[25] features: primacy of collective interests of the community over those of the individual; respect for the elderly; an interest in order and stability, family, nation and community; the value of hard work and frugality; self-sacrifice for the family; denial of present gratification for long-term benefits and commitment to education.[26]

There have been many objections to such an ‘Asian values’ argument. Firstly, Asia is not a monolithic culture, in that it has extraordinary cultural and geographical diversities. Asia is not a single and cohesive cultural unity, it is exactly Asia’s cultural diversity that makes Asian countries so interesting, rich, colourful and enduring.[27]  Thus, such an overarching argument that ‘Asian culture’ is a valid excuse for abandoning concepts such as democracy is untenable. Furthermore, it is incorrect to assert that Asia has never endorsed concepts such as democracy and human rights; and it is equally incorrect to assert that Asia does not need the former. As stated by the former president of South Korea, Kim Dae-Jun, any argument advocating respect for cultural differences is extremely offensive when used to justify authoritarian governments in Asian countries.[28] As also stated by Kim Dae-Jun in an article for the Australian, Asia has a rich heritage of democracy-oriented philosophies and traditions, and has made great progress towards democratization. Asia should not waste time in firmly establishing democracy and strengthening rule of law. Asia’s biggest obstacle is not its cultural heritage, but rather the resistance of authoritarian rulers and their supporters. [29]

6. Conclusion

The success of Japanese democratic society, supports the contention that Asian culture and socio-economic conditions are not valid excuses to abandon the rule of law, constitutionalism and democracy. Japan is an illustrative example of the fact that Asian culture and values are not necessarily resistant to the rule of law, constitutionalism and democracy.

[1] Randall Peerenboom, ‘Varieties of rule of law’ in Randall Peerenboom (ed), Asian Discourses of Rule of Law, (Routledge 2003), 1, 1.

[2] Ibid 2.

[3] Ibid 3.

[4] World Justice Project, Rule of law index 2019 insights, (2019), World Justice Project <https://worldjusticeproject.org/sites/default/files/documents/WJP-Insights-2019-Final.pdf>.

[5] Ibid.

[6] John O’Haley and Veronica Taylor, ‘Rule of law in Japan’ in Randall Peerenboom (ed), Asian Discourses of Rule of Law, (Routledge 2003), 440, 440.

[7] Rechtsstaat is a German concept of rule of law developed in the late 19^th century. It focuses on the requirement that governmental authority and its exercise have a basis in law. 

[8] Anglo-American rule of law is focused on the notion that law is a set of justiciable principles and rules, equally binding on those who make and enforce them.

[9] O’Haley and Taylor, above n 6, 447.

[10] Ibid 448.

[11] Albert Chen, ‘Pathways of Western liberal constitutional development in Asia: A comparative study of five major nations’ (2010) 8(4) Oxford University Press 849, 849.

[12] Frank Ravitch, ‘Secularism and Liberal Constitutionalism: Lessons from Japan’ (2017) Michigan State Law Review 149, 151.  

[13] Ibid 155.

[14] Chen, above n 11, 855.

[15] Ibid 161.

[16] Lawrence Beer, ‘Japan’s Constitutional Discourse and Performance’ in Lawrence Beer (ed), Human Rights Constitutionalism in Japan and Asia, (Brill 2009), 259, 259. 

[17] Japanese Constitution 1946 article 11.

[18] Beer, above n 16.

[19] Chen, above n 11, 849.

[20] Ibid 884.

[21] Ibid.

[22] Beer, above n 16.

[23] Beer, above n 16, 260.

[24] Alice Her-Soon Tay, ‘Asian values and the rule of law’ in Pietro Costa and Danilo Zolo (eds), The Rule of Law History, (Springer 2007), 565, 575.

[25] Confucianism is the way life propagated by Confucius in the 6^th-5^th century BC. It is the substance of learning, source of values and social code of many Asian countries, which claims the primacy of collective over individual interests.

[26] Her-Soon Tay, above n 23.

[27] Her-Soon Tay, above n 23, 576.

[28] Speech delivered upon receiving an honorary degree from the University of Sydney, reported in ‘Democracy champion backs our Asia role’, The Australian (3 September 1996), p. 2.

[29] Kim Dae-Jung, ‘Asia’s destiny’, The Weekend Australian (31 December 1994).