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What’s in a surname? A court divorced from reality

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Special To The Japan Times

Here at Law of the Land, I try to share “the Japanese law experience” with general readers. Today’s experience is called “The Frustration of Reading Supreme Court Decisions” and takes as examples two of the most significant decisions of 2015: one on a law requiring spouses to have the same surname, the other addressing a six-month prohibition on remarriage after marital dissolution that only applies to women.

Critiquing the judgment of a nation’s top court may seem pretentious, but to be clear, the goal is not to suggest there is some “better” (i.e., “Western”) way of doing things. Rather, I am merely trying to share the angst of realizing that, after cutting through the mystifying veil of legalese, tortuous prose, circular reasoning and conclusory statements presented as fact, supposedly significant judicial decisions can seem surprisingly light on substance.

The plaintiffs in both cases asserted violations of Articles 14 and 24 of the Constitution. In the surnames case, an Article 13 violation was also alleged (see sidebar for relevant sections).

While the Constitution contains an extensive list of rights, some provisions (like Article 13) are understood to articulate mandates to the Diet regarding the types of laws and policies it should enact, rather than laying down concrete rights capable of direct enforcement through the judicial process. If “the right to pursue happiness” alone were grounds for a lawsuit, courts would be inundated.

This gross oversimplification should help explain why both cases took the form of damage suits against the state for “legislative nonfeasance” — the Diet’s failure to discharge its duty to pass or update legislation so as to breathe life into these constitutional mandates. Like most constitutional litigation, “legislative nonfeasance” is a long shot because courts generally require a lot of time to have passed and social change to have occurred before even contemplating that the Diet might be shirking.

The surname case

The surname case is by far the most frustrating. The majority opinion starts by acknowledging surnames to be a component of an individual right of personality. But, it continues, being an element regulated by the system of family laws, it is a right that must be considered within the context of the actual legal system rather than in the abstract.

Considering that concrete relief in the context of how the law affects them in the real world is exactly what the plaintiffs are asking of the courts, this seems like a bit of gratuitous mansplaining. (The court’s three women judges all voiced objections to the surname requirement.) But having thereby taken as a given the very issue in dispute — that surnames are/should be a part of the family law system — it proceeds to explain why this is not constitutionally problematic.

Reviewing relevant 19th-century vintage Civil Code provisions, the court declares it reasonable for surnames to be used to identify individuals as components of larger social units, i.e., families. It would thus be inconsistent with this aspect of surnames for individuals to be able to choose and change them at will. This is a classic straw man argument, since the plaintiffs were presumably not asking for such freedom, but rather to not be compelled to change the surname they already had. The court goes on to note that the family law system anticipates changes in surnames to reflect marriages and parent-child relationships. Therefore (huh?), there is no constitutional right to not be compelled to change one’s name in marriage.

Disposing thusly of the Article 13 argument, the court acknowledges that changing names causes some unhappiness, but gratuitously suggests the problem is partially due to people marrying later in life, after establishing reputations under their original surnames. It also makes a point of denying the existence of any constitutionality-protected interest in preserving a reputation established before marriage.

Turning to Article 14, the court acknowledges that over 96 percent of marriages see women changing their surnames. Referencing prior precedent, it reconfirms that the Constitution prohibits discriminatory laws. This seems to state the obvious, but allows the addition of “… unless the discriminatory rule has a rational basis” to the mix. Here is why many Article 14 claims — indeed, much constitutional litigation — is doomed: because plaintiffs generally must prove the government was acting irrationally — against the public interest (which constitutionally limits the exercise of all rights) — when it made the law at issue.

According to the court, because couples are free to decide before marriage what surname they will use after, the requirement does not violate Article 14. To paraphrase a key piece of “logic”: “Even if the vast majority of couples getting married in Japan choose the husband’s surname, that does not mean the Civil Code mandating a choice of surnames is the cause.”

Article 24 gets the most attention. My admittedly cynical read of a big chunk of the court’s explanation here could be summarized as follows: “Just because the surname requirement means marriages are based on more than just the agreement of the couples, and it causes one of them to lose the right to use their name, this does not mean the Diet has violated its discretion through legislation that burdens freedom of marriage, nor does the fact that the requirement actually causes real people to refrain from marrying.”

Rather than reading Article 24 as a set of legislative mandates that the Diet must follow, the court regards it as a source of legislative discretion that permits the passage of laws at variance with its actual text. After all, Article 24(2) mandates not only equality but respect for individual dignity. Yet the court defers to the Diet’s subordination of individuals to “the family,” declaring at one point that matters relating to marriage and family should be considered in light of “factors such as tradition, national sentiment and an overall evaluation of rules governing spouses and parent-child relationships” (my translation), i.e., factors other than “mutual consent” and “individual dignity.”

A series of assertions seemingly unsupported by factual evidence follows: It makes sense for spouses to bear the same surname because they have joint custody over children who also bear it. Sharing the same surname makes individuals comprising a family feel that they are part of a group called a “family.” (Honest! There is a sentence that is literally this circular!) Spouses having the same surname enables children to receive the benefits of having the same surname as both parents. We said so. Therefore it is true.

After several pages of explaining how reasonable and beneficial it is for family members to share a surname, the court then seems to render it meaningless by noting how the use of “given names” different from legal surnames has become widely accepted. “That should suffice for most people” (i.e., women) seems to be the message.

All constitutional arguments dispatched, the court closes with some well-intentioned dicta about how a system that gave the freedom to retain original surnames after marriage could well indeed merit consideration — by the Diet. Declining to legislate from the bench sounds reasonable until you remember the Diet not doing anything is the basis for bringing the suit in the first place. So, after a ride on this jurisprudential Yamanote Line, the plaintiffs are left back where they started.

The court manages to avoid mentioning some inconvenient things that would have probably diluted much of its rationale. Like the fact that most Japanese people didn’t use surnames until after the Meiji Era, or that the legal imperative behind their use was originally tied to things such as conscription and aristocracy. More to the point, the judgment seems to address a fantasy version of modern Japan where everyone marries other Japanese people and never gets divorced. In fact, Japanese people who marry foreigners don’t have to share their surname and those who get divorced may end up in households with multiple surnames. Still others end up in the same situation by having kids without getting married. The widespread use of adult adoption can also result in blended-surname families.

The remarriage case

The failure to consider divorce scenarios cannot have been an oversight, since the same group of judges decided the remarriage ban case the same day. Having declined to legislate from the bench in the surname case, the court proceeds to do precisely that — with almost bizarre precision, by finding the women-only remarriage prohibition to be constitutional only as to the first 100 days of the six-month period.

As the majority explains, the prohibition has its origins in the 19th century, when six months was supposedly how long a woman could be pregnant without even a doctor being able to tell. The waiting period was thus part of a European-modeled patriarchal system of laws designed to minimize disputes over paternity and legitimacy. Just as one is about to credit the court credit for bidding adieu to the 19th century, its explanation of why a waiting period of 100 days still makes sense despite six months being unconstitutional suggests it can’t quite let go of the past.

Its reasoning goes something like this: The Civil Code’s rules on paternity — also of 19th-century provenance — include presumptions that a child born within 300 days of marital dissolution is the ex-husband’s, while one born within 200 days after marriage is the current husband’s. So a 100-day waiting period should prevent overlapping presumptions of paternity from arising.

The ready availability of DNA testing might make such presumptions seem slightly anachronistic. However, in a trio of 2014 cases the court effectively declared that evidence-based genetic parentage should lose when it conflicts with the pristine logic of the Civil Code presumptions of paternity.

In the remarriage case, the court argued that use of DNA testing would still burden the children at issue with a period of uncertainty about their paternity. Better that presumptions rooted in the limits of 19th-century medical knowledge should settle things right away and irrevocably — best interests of the child and all that!

In separate concurring and dissenting opinions, some judges argued that any restrictions on remarriage were unconstitutional, pointing out the unfairness of burdening all women with a restriction on marriage simply to avoid the possibility of conflicting presumptions of paternity in some cases, particularly given the availability of DNA testing. But those were minority views.

Neither judgment bothered to mention that the U.N. Committee on the Elimination of Discrimination against Women had repeatedly expressed concerns about both restrictions, though a concurring judge mentioned it in the remarriage case (probably because it helped bolster the unconstitutionality argument). Both decisions also leave the distinct impression that the Supreme Court seems to regard the Civil Code as actual law but the Constitution as more a package of guidelines that should be made to accommodate any actual laws that are seemingly inconsistent with them.

This is a shame; given the nation’s demographic crisis, you would think that everyone in a position to do so would be eagerly seizing every opportunity to remove rather than retrench any and all impediments to marriage and childbirth.

But no. This was the first time the court had considered the constitutionality of the surname requirement. If other cases are a guidepost, another generation will pass before it will consider it again. Absent action by the Diet (ha!), the women-only remarriage restriction is probably here to stay. Like I said — frustration.

English translations of the cases should be available at some point on the court’s English website at www.courts.go.jp/english. Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Your comments and story ideas: community@japantimes.co.jp

Contentious constitutional clauses

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.

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.

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.

  • DR Jensen

    The author’s argument that “Declining to legislate from the bench sounds reasonable until you remember the Diet not doing anything is the basis for bringing the suit in the first place. ” is also circular reasoning.

    If only the author had the same enthusiasm for allowing the people, through their elected representatives, to decide their own laws concerning that most basic social unit: the family.

    • blondein_tokyo

      How does criticism of the law via a well-reasoned and logical evaulation of said law evoke disdain for democracy?

    • JusenkyoGuide

      Yeah, right. This paper has reported a majority favoring such a change to the systems, and yet the Diet refuses to act.

    • A.J. Sutter

      Two points: First, the law in question was written before the people could decide anything through their elected representatives: at the time the Civil Code was written, not even all Japanese males could vote. Second, the current Constitution explicitly states that the unconstitutional laws are invalid (art. 98) and that the Supreme Court is empowered to decide on the constitutionality of laws (art. 81). Extreme deference to the legislative branch was not what the drafters of the Constitution had in mind — they were working from a US model, not a UK model. In fact, Japan’s Constitution is even stronger than the US’s written constitution on the point of judicial review. The justices of the JSC choose to subvert the intention of the Constitution, and so are very poor guardians of it.

    • KietaZou

      Yeah, and I would take a large bet that you’re ALL in favor of “the People” deciding things right up to when it doesn’t favor you POV. Then, it’s “the rights of the conscience of the individual” that override all other matters.

      When someone says “the family” in the way you have, I have never yet been wrong in assuming them to be a right-wing crank.

      Do dare to prove me wrong by talking about, say, Global Warming or the Syrian refugee crises.

    • KietaZou

      Yeah, and I would take a large bet that you’re ALL in favor of “the People” deciding things right up to when it doesn’t favor you POV. Then, it’s “the rights of the conscience of the individual” that override all other matters.

      When someone says “the family” in the way you have, I have never yet been wrong in assuming them to be a right-wing crank.

      Do dare to prove me wrong by talking about, say, Global Warming or the Syrian refugee crises.

  • A.J. Sutter

    A very nice article, but to the list of contentious Constitutional clauses one might also add Article 98, paragraph 1: “Article 98. This Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity.”

    Throughout its jurisprudence, the JSC has ignored this one. The election law cases are one set of examples, the Civil Code cases another. (Though the latter jurisprudence is less consistent: in 2013 the Court did invalidate, on Constitutional grounds, a Civil Code provision that had barred a child born out of wedlock from inheriting in an equal proportion to a child during marriage.) Unfortunately, there isn’t any way to punish the Court for ignoring the Constitution — the right to vote to recall justices is virtually mathematically impossible to have any effect, especially since many opinions don’t reveal how the individual justices vote.

    The Court seems willfully to ignore the intentions behind the drafting of the Constitution that, first, there be a break from Meiji jurisprudence, and, second, also that it is entirely different from a UK-like system of parliamentary supremacy (e.g., Art. 98). As written, Japan’s Constitution provides an even stronger basis for judicial review than does the US’s. Nonetheless, the conservative labor pool from which the Court’s justices are drawn and the fact that the Court chooses its own members will doom us to an endless cycle of reactionary jurisprudence unless we can rewrite the Constitution in a way quite different from what the LDP intends.

  • Rebane

    Thank you for optimistic thinking which I am about to give up.