[Japanese] https://i-rich.org/?p=1751
President
International Research Institute of Controversial Histories
Sugihara Seishiro
It is said that there are three pillars in the European and American civilizations. They are Greek philosophy, Christianity and Roman law.
Related to Roman law, a proverb says, “Law is to be discovered, but not to be made.” In gist, law is the pursuit of justice.
Under the Chinese civilization, law is a mere tool that those holding power use to rule the people and therefore, those in power may make whatever law they wish and use it in whatever way they like.
European and American laws have been derived from Roman law and ultimately exist to pursue justice. Thereby, the word “right” meaning “correct” also means “privilege.” However, this concept was not based on law, and it was necessary to back it with power. The word “right” refers to “right hand” and represents power. So, it refers to justice backed by power.
Thus, law in the European and American sense exists not at the mercy of an arbitrary power but as an authority by itself. Consequently, law is included in the concept of the “rule of law” or “nomocracy,” and such law governs the present world.
Consequently, under the “rule of law,” various principles came to be born. For instance, when a law is made to impose punishment, the principle of non-retroactivity meaning that the law shall not be applied retrospectively is one of the well-known legal principles.
Under those principles, regarding the relationship between the people and the State, the principle of independence of the three powers (legislative, executive, and judicial) is to be upheld. Through adequate checks and balances among the judicial, legislative, and executive powers, justice and order of law are secured.
Since the Meiji Era, Japan has sincerely learned from European and American judicial systems and endeavored to follow the “rule of law” and has now become a country perfectly observing the “rule of law.” However, recently, within the last few years, incidents occurred, making us apprehensive that the “rule of law” may be collapsing. We can perceive the omen of the collapsing rule of law, which poses a historical crisis of the “rule of law.”
On December 10, 2022, related to the issue of the former Unification Church, the so-called Saving Victims Law, officially, Law on Illegal Solicitation of Donations by Corporations, was enacted.
This law was enacted amid the tumult asking for the dissolution of the former Unification Church. However, in terms of the “rule of law,” whatever rigid law may have been enacted to dissolve the former Unification Church, the application of this law should be limited to the cases after the enforcement of this law. This fact was not fully disseminated by the executive office amongst the tumult. Should this fact been disseminated earlier, such chaotic situation could have been avoided.
Prime Minister Kishida changed his interpretation overnight, stating that civil law can be considered among factors for the dissolution of the Church. As long as change of interpretation on the part of the executive branch is within the range permitted by law, under the “rule of law,” it cannot digress from law. However, without pointing out the principle of the “rule of law,” he suddenly mentioned the change of interpretation as if aiming to further complicate the issue. This is a kind of digression that exceeds the powers allocated to the executive branch.
On June 16, 2023, the so-called LGBT Law, officially, Law on the Promotion of the People’s Understanding of the Diversity about the Sexual Preference and Gender Identity, was enacted by the Diet.
In terms of the “rule of law,” this law lacks “legislative fact” that necessitates the legislation of the law. Under such judicial circumstances, the enactment of such a law may destroy the order that the majority of the people have enjoyed and shake the stability of justice and order of law, leading to the destruction of the people’s peace, security and happiness. As a legislation, such law is digression of the “rule of law.”
On July 11, 2023, the Supreme Court made a decision allowing the plaintiff with gender identity disorder, who works for the Ministry of Economy, Trade and Industry and is married with a wife and child(ren), physically looks like a man, has not undergone the requisite gender reassignment surgery due to health-related reasons and claims to be a woman, to use any women’s restroom within the Ministry.
By this decision, the claim made by the plaintiff with gender identity disorder has been satisfied and as far as this person’s right is concerned, it is protected. On the other hand, as for the majority of female workers at the Ministry, their right to use women’s restrooms in peace and quiet which has been enjoyed so far came to be violated.
In the first place, the Ministry of Economy, Trade and Industry had the person in question to use the restrictively specified women’s restroom within the Ministry but did not prohibit the person from using any of the women’s restrooms.
On the part of the Supreme Court, it is not their mission to directly resolve the inconvenience of the plaintiff. Rather, considering the right of the majority of female workers to use women’s restrooms in peace and quiet, the Ministry restricted the use of women’s restrooms by the plaintiff. Then, the Supreme Court was asked to decide whether this restrictive measure taken by the Ministry against the plaintiff was within the legal range. It is against the justice of the law to destroy the order the majority of people enjoy and violate the rights of the majority.
In addition, if a person in such an unusual situation is to be protected, it is only possible by discussing the issue and making new rules that cover all of those in the same situation. However, it is the work of the Diet to make new rules through discussion.
Judiciary’s task is to decide whether an issue brought up in a lawsuit is legal or not, based on the existing laws, regulations, and customs and through such process, it decides the final interpretation of the respective laws and regulations.
In the judiciary, it is against the “rule of law” to save certain individuals by destroying the order that has been enjoyed by the majority of the people.
The Supreme Court is the highest court in our country, which must endeavor to maintain the importance of the traditional order and ensure the stability of the State.
Thus far, I have pointed out the cases that, if ignored, may lead to the collapse of the “rule of law” on the part of the judicial, legislative, and executive branches and this should be my warning about the possible collapse of the “rule of law.”
[Please refer to this author’s book Basic Theory on Judiciary—Its Structure of the Rule of Law (Published by Kyodo Shuppan, 1973)