The Japanese Supreme Court as a litmus test for generic constitutionalism?


Scholars have, at times, resorted to the concept of generic constitutional law to describe commonalities emerging across jurisdictions with regard to the way in which constitutional law protects rights and prescribes how they can be limited. Comparative law studies on fundamental rights underline how courts, operating in diverse legal cultures all influenced by the Western Legal Tradition, tend to resort to some adjudication techniques such as the reasonableness test and the proportionality test. Those comparative studies, nonetheless, concede that constitutional adjudication techniques may be differently articulated and applied according to diverse degrees of strictness. However, those differences do not receive much attention when it comes to the comparison of legal reasoning concerning rights. Adjudication techniques seem to be able to trigger the same theory of rights at any latitude, the same understanding of the dialectic between liberty and authority. Against this backdrop, our paper aims at arguing that the Japanese Supreme Court uses both proportionality and reasonableness with a clear cultural imprinting, thus potentially questioning generic constitutionalism, proving that the cultural context may alter the functioning of the abstract models of the constitutional musters.