Washington University Global Studies Law Review: “A Fourth Model of Constitutional Review? De Facto Executive Supremacy” (re: Japan’s Cabinet Legislation Bureau 内閣法制局)

· by · in Peer-reviewed Journal. ·

After over a year (!) waiting for various errors introduced by the editors to be corrected… a VoR of our study of Japan’s Cabinet Legislation Bureau (内閣法制局) and its implications for literatures in constitutional law and judicial politics concerning the heavily debated question of “whose interpretation of the constitution shall prevail?” … is now available online from the Washington University Global Studies Law Review. I coauthored this piece with Kazuo Fukuda, of IU’S Maurer School of Law.

A suggested citation and link is below (Note: unfortunately, the version that appeared in the print issue last year is full of errors introduced by the editor in the publication process. A corrected VoR was completed in May 2023 and appears below. An erratum will appear in a future issue of the journal) 

  • Abstract: Scholarship engaging the controversial question of whose interpretation of the constitution shall prevail has focused on three models: judicial supremacy, legislative supremacy, and departmentalism. Of late, the literature has centered on questions regarding the authority and/or status of the judiciary. This study argues that this important debate has neglected the prospect of a fourth model of constitutional review: de facto executive supremacy. To make its case, it examines Japan’s Cabinet Legislation Bureau—an executive branch-based institution that has acted as Japan’s de facto supreme interpreter of the constitution and draft statutes, despite the existence of a judicial branch explicitly empowered constitutionally to do so. Supplemented by comparative analysis with France’s Conseil d’État and the U.S.’ Office of Legal Counsel, this article emphasizes the role of executive institutions in the law-making process in both theory and practice and discusses potential implications of considering de facto executive supremacy as a legitimate model.
  • Key words: Japan, executive branch, constitutional review, constitutions, judicial politics