I remember when I and my colleagues were in labor negotiations with Prefectural University of Kumamoto, the president of the school at the time was a Law professor, and he protested at least once that Japan operated on the rule of law. Not only do I think that his interpretation of the rule of law was faulty (a generous understatement), but I think that Japan does not operate on the rule of law at all.
I was reminded of this fact last night as my class of advanced English learners discussed gender issues. It was an animated discussion where I had to act as referee several times. I rarely have those experiences here. Our discussion started with an article about a Tibetan woman who had struggled with discrimination in her life in-exile. Then we began to discuss life for women in this country. It was clear to everyone present that discrimination is pervasive and unchecked. The reasons for the pervasiveness were also clear. Discrimination against women is a concious choise by the society of traditional beliefs, superstition, and ad hoc decisions over the rule of law as outlined in the constitution.
To achieve the Rule of Law society envisioned by the council, legislation must set forth judicially enforceable rights and that parties may rely on rather than merely set a hortatory objectives for action and judges must look to legislation as setting forth the consensus of society rather than the amorphous society norms divined by the judicial system. The council’s view appears to contemplate a more transparent system where everyone– whether Japanese or not– can look at the law as written in the Codes and Statutes and know that when they seek enforcement that they see it actually what they will get without having to divine rules based on a mythical past or a judge’s view of what the particular social norm is when the case is decided. Until parties have judicially enforceable rights that are consistently interpreted and enforced, a Rule of Law society such as is contemplated by the Judicial Reform Council is difficult to envision. The Rule of Law in Japan: A comparative analysis, by Carl F. Goodman
More information on the Council is here.