Abstract
Discussion of judicial deference to the administration has focused primarily on the area of administrative discretion. Administrative discretionary actions were traditionally understood to be completely out of judicial reach and thus deemed exceptions to the fundamental principle of administration based on law. Even so, how to comprehend administrative discretion and manage to legally check its leeway has been explored in some depth. The conception of the distinction between legally controlled discretion and free discretion is one of the achievements of efforts to control comprehensive freedom of conduct on the part of administrative agencies. Now that the law has made administrative agencies liable for even their discretionary actions when they have been conducted ultra vires or abusively, the court may exercise the power to review discretionary actions with various degrees of intensity. The degree of intensity tends to depend on the nature of the action and the judiciary’s confidence in making its own judgment through the judicial process. Modes of judicial review may vary from lenient through intermediate to strict scrutiny. Recent developments have brought the frequent use of process-oriented review, which may be theoretically applicable to both restricted actions and discretionary actions. Proper reconciliation has had to be explored between actual demands of administrative discretionary judgments and the fundamental principle of the legal state in contemporary complicated settings.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Similar content being viewed by others
Notes
- 1.
This Constitution superseded the Constitution of the Empire of Japan of 1889, which had provided the legal foundation for the modernization that was understood to be imperative to avoid the colonization of Japan, which had just reopened its borders to the world after an interval of over two hundred years. The old Constitution declared the Emperor’s sovereignty: “The Emperor is the head of the Empire, combining in Himself the rights of sovereignty, and exercises them, according to the provisions of the present Constitution” (art. 4). While the Imperial Diet (Parliament) gave only consent to the Emperor, who possessed the legislative power (art. 5), the courts embodied the judicature in the name of the Emperor (Art. 57). The old Constitution failed to stipulate a Prime Minister or even a Cabinet, for its founders deliberately denied parliamentarianism due to their preference for a transcendental cabinet that was supposed to be independent of the Imperial Diet and political parties. The constitutional principle was that the minsters of the state respectively gave advice to the Emperor and were responsible for it (art. 55 para. 1), although its constitutional operation later opened up to quasi-parliamentarian practices. Without appointment and removal power, which belonged to the Emperor alone as one of his prerogatives (art. 10), the prime minister was considered only primus inter pares. The Emperor also determined “the organization of the different branches of the administration, and salaries of all civil and military officers” (art. 10). For the old Constitution, see e.g., Ito (1906), and Minobe (1934), pp. 1–155.
- 2.
The Japanese legal system itself is understood to belong to the civil law tradition. Legal codes, not judicial precedents, are considered the main source of law. However, legal codes are usually sufficiently abstract to allow judges to have a considerable degree of leeway when interpreting them. Japanese judges also tend to highly value relevant judicial precedents in their dealings with cases.
- 3.
Judicial review was not expressed clearly under the old constitutional regime. Although it was agreed that the court might review the propriety of procedural aspects of statutes, it was unclear whether the court could review the substance of statutes. The court itself denied it had the power to substantially review legislation (Taishin-in, July 11, 1913, Keiroku 19: 790). See Miyasawa (1973), p. 36.
- 4.
- 5.
For a general view of the relation between administration and the judiciary, see, e.g., Sowa (2011).
- 6.
- 7.
- 8.
For the discussions of administrative discretion and its judicial control, see, e.g., Tanaka (1974), pp. 116–120; Shiono (2015), pp. 137–154; Harada (2012), pp. 146–155; Fujita (2013), pp. 96–125, on which Part II of this report mainly relies; Uga (2017), pp. 324–337; Ohashi (2016), pp. 200–216; Watari (2002), pp. 32–46, 292–323; Yamamoto (2006), Yamamoto (2012), pp. 218–310; Fukazawa (2013), pp. 353–369; Hashimoto (2008); Sakakibara (2013); Murakami (2013); Takahashi (2013); Yamashita (2013); Toyoshima (2013); Shimoyama (2013); Watanabe (2013a).
- 9.
Minobe (1929), pp. 152–153.
- 10.
See Shiono (2015), pp. 138–139.
- 11.
See Fujita (2013), pp. 115–116.
- 12.
See Sakakibara (2013), pp. 4–5.
- 13.
- 14.
- 15.
See Murakami (2013), pp. 10–13.
- 16.
Since this judgment, the Supreme Court has often utilized the review mode combining a review from socially accepted views with a review of the decision-making process of administrative discretionary power. See Yamamoto (2016), p. 2.
- 17.
- 18.
There is serious doubt about the appropriateness of the current national flag and anthem under the post-World War II constitutional regime, as they have not changed since the old constitutional regime, in which the Emperor was sovereign. The National Flag and National Anthem Act was established without much national debate in 1999.
- 19.
See Murakami (2013), pp. 10–12.
- 20.
See Murakami (2013), p. 13.
- 21.
See Yamamoto (2016), pp. 15–23.
- 22.
See Murakami (2013), pp. 13–14.
- 23.
- 24.
- 25.
- 26.
See Yamamoto (2016), pp. 22–23.
- 27.
- 28.
See, e.g., Kawagishi (2015).
References
Ashibe N (2015) Kenpo (Constitutional Law), 6th edn (revised Takahashi K). Iwanami Shoten, Tokyo
Fujita T (2013) Gyosei ho soron (Administrative law: general theories). Seirin Shoin, Tokyo
Fukazawa R (2013) Sairyo tosei no hori to tenkai (Doctrines and their development of control over discretion). Shinzansha, Tokyo
Harada N (2012) Gyosei ho yoron (A guide to administrative law), 7th and 2nd revised edn. Gakuyo Shobo, Tokyo
Hasebe Y (2016) Kenpo (Constitutional law), 7th edn. Shinseisha, Tokyo
Hashimoto H (2008) Gyosei sairyo to handan katei tosei (Administrative discretion and control over the decision-making process). Hogaku kenkyu 81(12):507–535
Hitomi T (2018) Gyosei no sayo (Administrative operation). In: Inaba K et al (eds) Gyosei ho (Administrative law), 4th edn. Yuhikaku, Tokyo, pp 50–147
Ito H (ed) (1906) Commentaries on the constitution of the Empire of Japan, 2nd edn. Tokyo, Chuo Daigaku
Kawagishi N (2015) Toward a more responsive judiciary: courts and judicial power in Japan. In: Yeh J, Chang W (eds) Asian courts in context. Cambridge University Press, Cambridge, pp 77–111
Kawakami Y (2006) Sairyo shobun to shiho shinsa (hanrei wo chushin nishite) (Discretionary dispositions and judicial review (Based mainly on judicial precedents)). Hanrei jiho 1932:11–16
Minobe T (1929) Gyosei saiban ho (Administrative adjudication law). Chikura Shobo, Tokyo
Minobe T (1934) Nihon kenpo no kihonshugi (Fundamental principles of the Japanese constitution). Ninon Hyoronsha, Tokyo
Miura D (2008) Gyosei handan to shiho shinsa (Administrative decisions and judicial review). In: Isobe T et al (eds) Gyoseiho no shinkoso III Gyosei kyusai ho (New conceptions of administrative law III Administrative remedy law). Yuhikaku, Tokyo, pp 103–130
Miyasawa T (1973) Kenpo (Constitutional law), 5th edn. Yuhikaku, Tokyo
Murakami H (2013) Handan katei tosei no genjo to kadai (Review of the decision-making process: current status and issues to be resolved). Horitsu jiho 85(2):10–16
Nagata H (2013) Kenpo to gyosei sairyo (Constitutional law and administrative discretion). Horitsu jiho 85(2):48–53
Ohashi Y (2016) Gyosei ho 1 (Administrative law and process), 3rd edn. Yuhikaku, Tokyo
Sakakibara H (2013) Shakai kannen shinsa no shinsa mitsudo no kojo (Raising the intensity of review from the viewpoint of socially accepted ideas). Horitsu jiho 85(2):4–9
Sakakibara H (2018) Gyosei sairyo to shinsa mitsudo (Administrative discretion and intensity of judicial review). Gyosei ho kenkyu (Rev Adm Law) 23:1–26
Sato K (2011) Nihonkoku kenpo ron (A theory on the Constitution of Japan). Seibundo, Tokyo
Shimoyama K (2013) Shokyokuteki sairyo ranyo (Negative abuse of discretionary powers). Horitsu jiho 85(2):35–40
Shiono H (2013) Gyosei ho II Gyosei kyusai ho (Administrative law II: Administrative remedy law), 5th and revised edn. Yuhikaku, Tokyo
Shiono H (2015) Gyosei ho I Gyosei ho soron (Administrative law I: general theories), 6th edn. Yuhikaku, Tokyo
Shishido J (2009) Sairyoron to jinkenron (Theories of discretion and theories of fundamental rights). Koho kenkyu (Public Law Rev) 71:100–111
Sowa T (2011) Gyosei to shiho (Administration and judicature). In: Isobe T et al (eds) Gyoseiho no shinkoso I Gyosei ho no kisoriron (New conceptions of administrative law I Basic theories of administrative law). Yuhikaku, Tokyo, pp 309–338
Takagi H (2010) Gyosei shobun ni okeru koryojiko (Considered matters in administrative dispositions). Hoso jiho 62(8):2055–2079
Takagi H (2014) Shakai kannen shinsa no henyo (Transformation of review from the viewpoint of socially accepted ideas). Jichi kenkyu 90(2):20–34
Takahashi A (2013) Hirei gensoku no kanosei (Possibilities of the principle of proportionality). Horitsu jiho 85(2):17–21
Tanaka J (1974) Gyosei ho 1 (Administrative law 1), new and 2nd edn. Kobundo, Tokyo
Toyoshima A (2013) Gyosei rippo no sairyo tosei shuho no tenkai (Development of methods to control discretion in administrative legislation). Horitsu jiho 85(2):29–34
Tsuneoka T (2008) Sairyo ken koshi ni kakaru gyosei tetsuduki no igi (Significances of administrative procedure regarding exercise of discretionary powers). In: Isobe T et al (eds) Gyoseiho no shinkoso II Gyosei sayo, gyosei tetsuduki, gyosei jyoho ho (New conceptions of administrative law II Laws of administrative operation, administrative procedure, and administrative information). Yuhikaku, Tokyo, pp 235–267
Uga K (2017) Gyosei ho gaisetsu I Gyosei ho soron (Administrative law text, vol. 1, General theories), 6th edn. Yuhikaku, Tokyo
Uga K (2018) Gyosei ho gaisetsu II Gyosei kyusai ho (Administrative law text, vol. 2 Administrative remedy law), 6th edn. Yuhikaku, Tokyo
Watanabe S (2013a) Jitsumuka kara mita gyosei sairyo (Administrative discretion from the viewpoint of a legal practitioner). Horitsu jiho 85(2):41–47
Watanabe Y (2013b) Kenpo jo no kenri to gyosei sairyo shinsa (Constitutional rights and judicial review of administrative discretion). In: Hasebe Y et al (eds) Gendai rikkenshugi no shoso (Various phases of modern constitutionalism) vol 1. Yuhikaku, Tokyo, pp 325–366
Watari T (2002) Koeki to gyosei sairyo (The public interest and administrative discretion). Kobundo, Tokyo
Yamamoto R (2006) Nihon ni okeru sairyoron no henyo (Transformation of theories of discretion in Japan). Hanrei jiho 1933:11–22
Yamamoto R (2012) Hanrei kara tankyu suru gyosei ho (Administrative law explored through judicial precedents). Yuhikaku, Tokyo
Yamamoto R (2016) Gyosei sairyo no handan katei tosei (Judicial review of arguments for administrative discretionary decisions). Gyosei ho kenkyu (Rev Adm Law) 14(2016):1–24
Yamashita R (2013) Sairyo kijun no sairyosei to sairyo kiritsusei (The discretionary and regulatory nature of standards of discretion). Horitsu jiho 85(2):22–28
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2019 Springer Nature Switzerland AG
About this paper
Cite this paper
Kawagishi, N. (2019). Deference to the Administration in Judicial Review in Japan. In: Zhu, G. (eds) Deference to the Administration in Judicial Review. Ius Comparatum - Global Studies in Comparative Law, vol 39. Springer, Cham. https://doi.org/10.1007/978-3-030-31539-9_13
Download citation
DOI: https://doi.org/10.1007/978-3-030-31539-9_13
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-31538-2
Online ISBN: 978-3-030-31539-9
eBook Packages: Law and CriminologyLaw and Criminology (R0)