Equality under the law

An idea that one nation alone must be treated in relations of a legal right, the duty with the nation with the equality under the law (original equality of the one) equally. I may be called 平等則 (びょうどうそく) or an equal general rule (びょうどうげんそく). "The equality" is a basic principle in a modern constitution, and such a rule is seen in many countries. But there is delicately a difference about a rule, the term of the equality principle by a country and the times [¹] and may be prescribed as equality before the law [²].

Table of contents

History

The fountainhead of the equality thought itself dates back to Christian accepted doctrine (equality before God) in ancient Greece thought or the Middle Ages [³].

However, there is that an equality principle came to be regarded as a nation as the human way after modern times [³]. American Declaration of Independence and the French Declaration of the Rights of Man describe security of the equality under the law.

Human rights and treaty for protection of the basic freedom and International Covenant on Civil and Political Rights Article 26 by the United Nations General Assembly adopted for the purpose of legal relief for the legal security and violation of the Universal Declaration of Human Rights adopted by United Nations General Assembly resolution in 1945 by Council of Europe specify "equality under the law" and specify security of the enjoyment of the civil liberties that the agreement guarantees without any discrimination in Article 2 and guarantee that younger brother Article 2 of the international agreement about the social and economical and cultural right adopted at the same time enjoys the social rights that the agreement establishes without distinction.

Concept of the equality

Relative equality and absolute equality

• Absolute equality

I treat it regardless of an individual condition equally mechanically.

• Relative equality

I treat it in the cause of the same condition equally.

Formal equality and substantial equality

• Formal equality (opportunity principle of equality)

I mean the equality of the opportunity when I am going to give all nations the opportunity of the acts such as economic activities equally.

• Substantial equality (result principle of equality)

I mean the equality of the result that is going to do the result of the acts such as the economic activities of all nations equally.

Equality principle in the Constitution of Japan

General statement

Article 14 has a rule in the Constitution of Japan.

Constitution of Japan Article 14

1. It is political, and the nation is not discriminated all against in economical or social relations under the law by equal であつて, race, creed, sex, social social position or family status.
2. The nobility or other noble systems do not accept this.
3. As for the honor, the conferment of decoration or other privileges, an attendant does not have any special privilege. In fact the conferment of the privilege has the effect only for the lifetime of the person who having this or will receive this in the future.

In addition, the Great Japanese Imperial Constitution established a rule only about the government affairs assumption of office right about an equality principle [⁴], and, as a general rule, the equality did not amount to a matter except the ability for government affairs assumption of office [⁵], and the equality at a constitutional opportunity was limited [²].

Great Japanese Imperial Constitution Article 19
Japanese subject ハ law order ノ 定 Murr place ノ qualification ニ 応 シ 均 ク Fumitake official ニ job ceraRais and it ノ other ノ government affairs ニ 就 クコトヲ profit

I established it in the 1850 Prussia constitution that Great Japanese Imperial Constitution was modelled after saying "I am equal, and the qualified person with the condition not to admit, and to establish this for a law can take government affairs as for the special privilege of the rank before a law as for the Prussian equally", but the Great Japanese Imperial Constitution leaves it if I put only a rule of the government affairs assumption of office ability [⁵]. The woman was put in the remarkably disadvantageous state in civil law, the criminal law, a wide range of domains including the Japanese Nationality Act without it being thought that the inequity between men and women was against a principle of "均 ク" under the Great Japanese Imperial Constitution [⁵].

Interpretation of constitution Article 14

The equality under the law required the equal handling to each nation as an equality principle for a nation. About the meaning of the equality under the law, I have some problems in conjunction with the words in fact.

Significance of "the bottom of the law"

It is thought that the words called a constitutional "bottom of the law" mean only the equality of the law application (law application equality opinion, legislatrix non-restriction theory), but it is thought that I mean that the law contents are generally equal because the appropriate result is not provided even if I apply it equally if contents are unequal (Yohei in the law an opinion, legislatrix restriction theory).

Significance of "the equality"

The words of constitutional "equality" guaranteed the equality of the individual interval that is a large principle of the modern law, and it is thought that I mean basically formal equality (opportunity principle of equality). It should depend on social rights less than Constitution of Japan Article 25 about the point of view of the substantial equality and considers it that measures for difference correction by it are received to constant degree in Article 14. But I declare formal equality to break off existing complaints practically, and it is insufficient, and there is the influential opinion that you should consider in Article 14 about the point of view of the substantial equality.

Right to equality

It is in a problem whether it is a purpose to guarantee to insist on equality as a right as well as an equality principle in equality under the law (right to equality), but it is a common view that recognize right characteristics as right to equality, and the precedent recognizes it, too.

Unconstitutional examination standard

The precedent depends on a right limited concretely, but when there should be the reason that generally is rational, I do it, but, about a criterion of the unconstitutionality of the act violating an equality principle or right to equality, insist when the theory should use a stricter standard. In addition, there are (など where the act in conflict with an enumeration reason should estimate unconstitutionality) which should add the strength and weakness to a criterion of the unconstitutionality in a reason and the reason that is not so enumerated by constitution Article 14 and the opinion to insist on.

Constitution Article 14 Clause 1 latter half enumeration reason

Article 14 Clause 1 assumes "the nation is all equal under the law" preceding paragraph, the を latter half that "is political, and is not discriminated against in economical or social relations by a race, a creed, sex, social social position or family status." and says a specific example of the discrimination called "a race, a creed, sex, social social position or family status" enumerated by a latter half with a latter half enumeration reason.

Meaning of the enumeration

I greatly divide it into a theory, and there are three of the next.

• Limited enumeration theory

The discrimination is prohibited absolutely, but only a latter half enumeration reason is considered to be prohibited discrimination.

• Special meaning theory

The discrimination is prohibited in principle, but examines the latter half enumeration reason in a stricter standard saying that, of these, a particularly important thing is written down.

• Exemplified opinion (precedent)

The latter half enumeration reason merely only exemplified equality under the law and understands it when prohibited like other discrimination in principle.

Concrete contents

• Race

I mean anthropological classification.

• Creed

I mean a personal view of the world widely.

• Sex

I mean the distinction of the man and woman. I refer to the sex discrimination.

• Social social position

It is not temporary, and a person means a position occupying widely in society (there is an objection theory).

• Family status

I mean family's social standing.

Realization of the equality principle

Realization of the equality principle in the Constitution of Japan includes the following text.

• The abolition (Article 14 Clause 2) of the noble system
• The abolition (Article 14 Clause 3) of the special privilege with the privilege
• Equality (Article 15 Clause 3, Article 44 proviso) in the election of the public employee
• Amphoteric equality (Article 24) in the family life
• Equality of opportunity (Article 26) of the education

Main precedent in Japan

Killing of a blood relative severe punishment rule violation of the constitution judgment

A case saying that a legal punishment of the killing of a lineal ascendant of criminal law Article 200 is over in weight.

The details refer to "a killing of a blood relative legal punishment violation of the constitution case"

Equal of the vote value

Because a difference is included in substantial vote value in the how to decide of the electoral district of the national election every area, it is in a problem.

The details refer to "one vote of difference"

Inheritance inequity of the child born out of wedlock

The inheritance legitimate child [b: civil law Article 900 Article 900]. The way of thinking that Heisei related to changed with the times, and lacked, and the discrimination about legal inheritance against current child born out of wedlock gave violation of the constitution judgment to a rational reason saying that it was against equality under the law [⁶].

I received this, and the Diet deleted the proviso first half part of [b: civil law Article 900 civil law Article 900] 4.

The details refer to "child born out of wedlock # legal inheritance"

Japanese Nationality Act rule violation of the constitution judgment

When a rule of Japanese Nationality Act Article 3 Clause 1 that established requirements of the nationality acquisition by the legitimation hit irrational discrimination, I did it.

The details refer to "love child nationality suit"

Explanatory note

1. For ^ "constitution 2 fundamental human rights (1)" Teruya Abe, 有斐閣 〈 有斐閣双書 〉, 1,975 years, it is page 111.
2. For ^ ^{a b} "constitution 2 fundamental human rights (1)" Teruya Abe, 有斐閣 〈 有斐閣双書 〉, 1,975 years, it is page 110.
3. For ^ ^{a b} "constitution 2 fundamental human rights (1)" Teruya Abe, 有斐閣 〈 有斐閣双書 〉, 1,975 years, it is page 108.
4. For ^ "constitution 2 fundamental human rights (1)" Teruya Abe, 有斐閣 〈 有斐閣双書 〉, 1,975 years, it is page 109.
5. For ^ ^{a b c} Nobuyoshi Ashibe "study of the constitution III human rights detailed exposition (1) enlarged edition" 有斐閣, 2,000 years, it is page 12.
6. ^ Supreme Court September 4, 2013 Supreme Court decision

Allied item

• List of words for the law
• Masami Ito
• The equality of the sexes
• Affirmative action
• International Covenants on Human Rights
• The international human rights method

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