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ID 46540
file
title alternative
The substantive value of the equal protection clause of the constitution
creator
NDC
Law
abstract
The traditional concept of equality, which can be expressed as “equal things should be treated equally”, is said to be value-neutral. However, when a court makes some sort of value decision regarding a case related to equality, it must make its decision based on a substantive value whose existence has a basis in the constitution. That is to say, at the core of “equality under the law” in article 14 (1) of the Japanese constitution, there exists some kind of substantive value.
Therefore, in this study, first, I consider the assertion of Peter Westen that “equality is a value-neutral empty concept” as well as the assertion of Kenneth L. Karst that “the basic principle of equal citizen status” exists at the core of the equal protection clause of the U.S. constitution. I found that at the core of the equal protection clause of the U.S. constitution, as described by Karst, is a principle with substantive value: “equal respect to individual” members of society.
The substantive value of “equality under the law” in article 14 (1) of the Japanese constitution as a “principle” can be found in article 13, which seems to mean each individual has “dignity” and “should be respected equally as an individual”. This seems to match the substantive value of the aforementioned equality principle in the U.S. constitution cited by Karst. With such reflection, the substantive value of “equality under the law” in article 14 (1) in the Japanese constitution could be ultimately concluded to mean the principle of “dignity of individuals” and equal attention to individual personality value so as not to violate the dignity of individuals: i.e., a principle of “equality of personal value”.
journal title
The Hiroshima Law Journal
volume
Volume 42
issue
Issue 1
start page
234
end page
216
date of issued
2018-07-20
publisher
広島大学法学会
issn
0386-5010
ncid
language
jpn
nii type
Departmental Bulletin Paper
HU type
Departmental Bulletin Papers
DCMI type
text
format
application/pdf
text version
publisher
rights
許可なく複製・転載することを禁じる。
department
Graduate School of Social Sciences
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