Family Law Reform through Constitutional Litigation? The problem of obsolete statutes and the role of the Japanese Supreme Court
April 25, 2019 - 12:15-13:15
In 2013, the Court held that a rule of inheritance provided in the Civil Code, giving illegitimate children a lesser share of their parents’ estate than their half-siblings, was inconsistent with the Equality Clause of the Constitution. This was followed by another decision in 2015, in which the Court declared unconstitutional another provision of the Civil Code, which stipulated a six-month waiting period for remarriage only for women.
A certain inconsistency is visible, however, when these innovative decisions are contrasted with the fact that the Court affirmed the constitutionality of a statute requiring a married couple to assume a single surname. Emphasizing the neutrality of the text in the face of social reality in which 96% of married couples choose the surnames of husbands is not a persuasive way to justify the mandatory rule permitting no exception.
The Chief Justice’s concurring opinion, however, seems to suggest that the Court should have stepped in had the dispute involved a specific minority group. This may be a sign that the Court is prepared to undertake a more active role in cases involving sexual minorities, such as when the issue in question is about same-sex marriage.
Keisuke Mark Abe, Ph.D., is Professor of Law at Seikei University in Tokyo. He is currently a visiting researcher at the University of Oxford Faculty of Law as well as at the Dickson Poon School of Law, King’s College London, where his research focuses on the enforcement of constitutional values in a pluralistic society.