「社会的身分」論からの解放に向けて : 憲法14条１項後段列挙事由特別意味説に対する疑問

Toward Liberation from the "Social Status" Problem: A Comment on the Interpretation of the Enumeration Clause in Article 14 (1) of the Japanese Constitution

Monden Takashi

廣島法學

The Hiroshima Law Journal

[ISSN] 03865010

[NCID] AN0021395X

In interpreting Article 14 (1) of the Japanese Constitution, which reads "All of the people are equal under the law and there shall be no discrimination … because of race, creed, sex, social status or family origin," many current scholars see the enumeration in the latter part as having "special meaning," in that a classification based on the enumerated grounds (race, creed, sex, social status, or family origin) is subject to more stringent judicial review (the so-called "special meaning theory" or tokubetsu-imi-setsu). Based on this understanding, special meaning theory also struggles to somewhat intricately define the meaning of "social status" – one of the enumerated grounds –so that it fits the requirements needed to trigger stricter review. This paper critically ana1yzes this theory and especially its definition of "social status." It argues that Article 14 (1) as a whole should be treated genuinely as a "principle," and enumerated grounds should be understood merely as examples of reasons for unjust discrimination in the past. From this viewpoint, "social status" can be understood literally as "a status that an individual holds continuously in society." Certainly, classifications based on "race" or "sex" should be examined under the stricter standard of review, but it is not because such grounds are enumerated in Article 14 (1), but because of the very nature of such grounds. In this sense, the argument over the rigidity of the standard of review should be developed in the process of the application of Article 14 (1) to individual cases from a substantive perspective.

jpn

広島大学法学会

THE SOCIETY OF LAW OF HIROSHIMA UNIVERSITY

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