Overview

Article 10 of the Potsdam Declaration made the establishment of the respect for fundamental human rights a condition of Japan's surrender. Chapter III of the Constitution of Japan, which covers the rights and duties of the people, was in large part how this principle was put into effect. One major factor which contributed to making the protection of human rights such a focus was undoubtedly the very weak protection they had enjoyed in Japan under the Meiji system, a situation about which we may begin this chapter with a few words.

One well known anecdote related to Japan's selective adoption of a legal system based on western models in the Meiji era is that the language lacked a word that “right” could be translated into and one thus had to be invented from scratch (kenri). The profundity of this story is somewhat blunted by the fact that the Japanese language produces huge numbers of new words each year without it really impacting the ability of people to use the thing being described, and also by the fact that Japan in the preceding Tokugawa era had long experience with concepts analogous to property and contractual rights in the field of private law. It does however usefully serve as a simplified metaphor for the discomfort that members of the Meiji ruling class felt towards the idea of creating a set of legal rights that the people could use specifically against the new state which they were in the process of building.

This unease is reflected in the content of the Meiji Constitution's second chapter which, like Chapter III of the current one, covers rights and duties. The rights enshrined in the Meiji Constitution differed from those in the current constitution in three major ways. The first is that most current rights simply were not in it. Economic and social rights were completely absent while rights related to the criminal process, intellectual freedom and procedural rights against the state for the most part existed only in very rudimentary form. The second is that the small number of rights that were included were always qualified as being subject to the provision of law. While this did not necessarily deprive them of all meaning as they could still serve as a check on arbitrary abuse, it did mean that they could be limited or stripped away through regular legislation as the government saw fit (as it, not coincidentally, often did).

The Constitution of Japan, enacted in 1946, protects freedom of expression in its article 21. If the legislature were to enact a ban on hate speech, then the constitutionality of that ban would become a critical issue. In light of the jurisprudence relating to freedom of expression established by the Supreme Court of Japan, it is highly likely that the Supreme Court would uphold the constitutionality of any such ban. However, constitutional academics have constructed an alternative freedom of expression jurisprudence mainly following that of the Supreme Court of United States. Under this alternative jurisprudence, it becomes much more difficult to uphold the constitutionality of any such ban, and this chapter considers whether and how such ban might be justified in Japan.

The Supreme Court of Japan has not officially adopted constitutional proportionality review as an established framework for the judicial review of restrictions on constitutional rights. Instead of articulating a general framework, the Supreme Court prefers to resolve a particular issue within its specific context. As a result, the Supreme Court’s framework of analysis is not well structured, and is highly ad hoc and contextualized. We can see in the reasoning of the Supreme Court some semblance of proportionality review. But the Supreme Court remains highly deferential toward the legislature and the government in most cases.

Respect for human dignity is one of the cornerstones of the Japanese legal system. As interpreted by modern scholars, the constitutional commitment to human dignity reflects the importance of respect for human rights and, in particular, the growing recognition of the need to make space for personal autonomy. However, the articulation of human dignity in Japanese law is far from complete, clear or straightforward. In some areas, the law still lags behind the modern understanding of human dignity.

This chapter starts by sketching the constitutional significance of human dignity and the extent to which Japan has embraced international human rights commitments. Some particular applications of this conjunction of human dignity and human rights are then given, before putting these developments in the context of a society that, traditionally, has a group orientation. The chapter continues with some remarks about the relationship between human dignity and Japan's modern pacifist stance; and it concludes with an indication of how human dignity applies in private law.