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viewpoints with respect to these constitutional constraints.
Chart-2: Comparison of Constitutional Constraints on Judicial Lawmaking
Judicial review of
other departments
Independence
of judiciary
Role of precedents in
ordinary lawsuits
Independence of
judgments
US type
Balance of powers
Judicial review
→
-Judicial unity.
-Independence
of
judicial
administration.
Common law
tradition
-Stare decisis
(equally binding with
statutes)
-Literal application of
statutes.
-Democratic
election of
judges.
-Guaranteed
status of judges.
-Procedural
rules.
-Disclosure and
social critique on
judgments.
French-
German
type
Superiority of
Legislature
no judicial review
→
(Constitutional
Court/
Administrative
Court)
-Judicial
Pluralism.
-Judicial
administration
by Ministry of
Justice.
Civil law tradition
-supplementary to
statutes.
-Flexible
interpretation of
statutes.
-Career system.
-Guaranteed
status of judges.
-Procedural
rules.
-Disclosure and
social critique on
judgments.
Japan
Balance of Powers
Judicial review
→
(but a separate
procedure for
administrative suits)
-Judicial unity.
-Independence
of
Judicial
administration.
Civil law tradition
-supplementary to
statutes.
-Flexible
interpretation of
statutes.
-Career system.
-Guaranteed
status of judges.
-Procedural
laws.
-Disclosure and
social critique on
judgments.
Judicial
Reforms
after
Asian
Superiority of
Legislature
no Judicial review
→
(Constitutional
-Judicial
pluralism.
-
Independence
Civil law tradition
-supplementary to
statutes.
-Literal application
-Career system.
-
underdevelope
d procedural
12
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