The rule of law in Japanese Administrative Law

DOI

Bibliographic Information

Other Title
  • 行政法からみた日本における「法の支配」

Abstract

The author first discusses why Japanese scholars in administrative law have seldom been attracted to the term “rule of law” despite frequent use of the concept in constitutional law, philosophy of law, and political theory.<br> Out of four possible meanings of the rule of law (1) “supremacy of law, ” (2) “prior use of very formal procedures” (either law-making in the assembly or adjudication in the court of law), <br> (3) “substantive adequacy of law” (including guarantee of human rights), and (4) “separation of functions” (rule-maker/rule-enforcer and prosecutor/adjudicator), the Japanese adminis-trative law theories have exclusively focused on the “supremacy of law” and the “prior use of very formal procedures” (but only the assembly version, which is commonly referred to as “doctrine of statutory reservation” meaning that prior statutory authorization of administrative activies is required).<br> The author argues that the rule of law as conceptualized in Japanese public law does not include, as far as administrative process is concerned, the court of law version of the “prior use of very formal procedures” nor the “separation of functions”. He also notes that administrative law scholars do not necessarily discuss “substantive adequacy of law” simply because that is for constitutional law theories.<br> He then discusses the importance for the Japanese administrative law to pay more attention to the court of law version rather than the assembly version of the “prior use of very formal procedures”. Though the traditional administrative law theories have focused on the assembly version, i.e., the doctrine of statutory reservation, it has become clear that in the administrative state, the failure of the assembly version is almost destined. In an effort to keep the current administrative state within the rule of law, he argues, the Japanese public law theories should reengineer its concept of the rule of law, and reform its understanding of judicial courts' role in controlling the administrative state under a new version of “rule of law.”<br> From this standpoint, the author discusses implications of the 1994 amendment of the Adminis-trative Case Litigation Law to the remodeling of the rule of law. He points out the two “messages” of the amendment which encourage expansion of both standing to sue and use of Tojisya (regular) suits.

Journal

Related Projects

See more

Details 詳細情報について

  • CRID
    1390001205303622272
  • NII Article ID
    130003575224
  • DOI
    10.11205/jalp1953.2005.42
  • ISSN
    24351075
    03872890
  • Text Lang
    ja
  • Data Source
    • JaLC
    • CiNii Articles
    • KAKEN
  • Abstract License Flag
    Disallowed

Report a problem

Back to top