The Constitution and the Family in
Japan
Shigenori Matsui
University of British Columbia
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Introduction
• The Family Law used to be a part of
Civil Law, separated from the
Constitution.
• Yet, in the United States, the United
States Supreme Court has
constitutionalized the Family Law since
1970s.
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• In Japan, the constitutionalization of the
Family Law occurred in 1946, when the
Family Law enacted under the Meiji
Constitution was radically amended to
conform to the Japanese Constitution.
Many people believed that the
constitutionalization is over and the
Family Law could exist outside of the
Constitution.
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• Yet, there are some constitutional
challenges.
• Moreover, with the development of
equality right jurisprudence and the
development of right of autonomy, some
of the provisions of the Family Law may
be constitutionally questioned.
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1 The Family Law and the
Constitution
• A) The Family Law under the Meiji
Constitution
• Civil Code of 1890
• Civil Code of 1898
• The “ie” (house) system
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• B The Family Law under the Japanese
Constitution
• Article 14
• “All of the people are equal under the
law and there shall be no discrimination
in political, economic or social relations
because of race, creed, sex, social
status or family origin.”
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• Article 24
• “Marriage shall be based only on the mutual
consent of both sexes and it shall be maintained
through mutual cooperation with the equal rights
of husband and wife as a basis.
• With regard to choice of spouse, property rights,
inheritance, choice of domicile, divorce and other
matters pertaining to marriage and the family,
laws shall be enacted from the standpoint of
individual dignity and the essential equality of the
sexes.”
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• The enactment of new Family Law in
1947
• Individual dignity
• equality
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• Even though the people’s attitude did
not change soon, still many of the
people believed that all questionable
provisions were removed and there no
longer existed any necessity of further
constitutionalization.
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2 Some of the Constitutional
Challenges
• A) Special Ban on Re-marriage against
woman
• “A woman may not remarry unless six
months have passed since the day of
dissolution or rescission of her previous
marriage (article 733, section 1).
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• Conflicting presumption of paternity
• “A child conceived by a wife during marriage
shall be presumed to be a child of her
husband” (article 772 (1)).
• “A child born after 200 days from the
formation of marriage or within 300 days of
the day of the dissolution or rescission of
marriage shall be presumed to have been
conceived during marriage” (article 772 (2)).
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• Judgment of December 5, 1995,
Supreme Court, 3rd petty bench, 1563
Hanreijihou 81.
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• B) Discrimination against illegitimate child
• Article 900
• If there are two or more heirs of the same rank, their
shares in inheritance shall be determined by the
following items:
• i if a child and a spouse are heirs, the child’s share in
inheritance and the spouse's share in inheritance shall be
one half each…
• iv if there are two or more children…the share in the
inheritance of each shall be divided equally; provided that
the share in inheritance of an child out of wedlock shall be
one half of the share in inheritance of a child in wedlock…
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• Decision of July 5, 1995, Supreme
Court, grand bench, 49 Minshu 1789.
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3 Emerging Equality Right
Jurisprudence and the Right of
Autonomy
• A) Emerging Equality Right
Jurisprudence
• Treating “race, creed, sex, social status
or family origin” listed in article 14 as a
suspect classification and applying
heightened scrutiny
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• Application of strict scrutiny to sexual
discrimination
• Application of strict scrutiny to
discrimination based on social status
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• B) Constitutional Protection of the Right to
Autonomy
• Article 13
• “All of the people shall be respected as
individuals. Their right to life, liberty, and the
pursuit of happiness shall, to the extent that it
does not interfere with the public welfare, be
the supreme consideration in legislation and
in other governmental affairs.”
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• Re-reading article 24 as a textual
source of substantive right to autonomy
in family matters and sexual matters
• Application of strict scrutiny?
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• C) Restriction on Remarriage for
Woman Reconsidered
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• D) Discrimination against Illegitimate
Child Reconsidered
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4. Future Agenda
• A) The Right to Marry
• (1) Discrimination regarding the Minimum
Age for Marriage
• “A man who has attained 18 years of age,
and a woman who has attained 16 years of
age may enter into marriage” (article 731).
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• (2)The ban on marriage in close
relationship
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• (3) The ban on bigamy
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• (4) The requirement of same surname
• “A husband and wife shall adopt the
surname of the husband or wife in
accordance with that which is decided
at the time of marriage” (article 750)
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• (5)Preclusion of same-sex marriage
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• B) Divorce
• A couple can divorce upon agreement.
• One must go to court for judicial divorce
if the other partner does not agree.
There must exist one of the listed
grounds for judicial divorce.
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• The court may dismiss a suit for divorce
if it finds continuing the marriage
reasonable taking into account all
circumstances, even in the case where
there is a cause listed the statute.
• The Supreme Court has created the
judicial doctrine to reject the divorce
claim from responsible party.
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• C) Sexual activity
• (1) Rape
• (2)Prostitution
• (3)Sexual Intercourse with minors
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• (4)Contraception
• (5) Homosexual conduct and sodomy
• (6)Abortion
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• D) The right to have a child
• The pregnancy after the death of
husband using frozen sperm.
• Judgment of September 4, 2006,
Supreme Court, 2nd petty bench, 60
Minshu 2563.
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• Surrogate mother
• Decision of March 23, 2007, Supreme
Court, 2nd petty bench, 61 Minshu 619
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Conclusion
• It is necessary to re-examine the family
law and law regarding the family in light
of the Constitution.
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