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What’s in a name? - A critique of the Japanese Supreme Court’s surname ruling from a feminist jurisprudential perspective

In December 2015, the Japanese Supreme Court upheld the constitutionality of a controversial Civil Code provision requiring married couples to use the same surname in official matters. This decision has been highly criticised, especially by women's rights groups, as the matter is contentious in Japan, with opponents calling it an infringement of women's fundamental rights and conservatives regarding shared names as a central pillar of the family unit. In this article, Julia Bambach critiques the decision from a feminist jurisprudential perspective.


On 16 December 2015, Japan’s Supreme Court, known in Japanese as the Saikō Saibansho, upheld the constitutionality of the highly controversial Civil Code provision requiring a couple to use the same surname when they register their marriage and when signing other official documents[1]. The 10-5 ruling by the justices at the same time called on the Diet to discuss whether Japan should allow married couples to use different surnames if they so wish. Originally filed as a lawsuit by five individual women in 2011, the plaintiffs contended that the same surname requirement for married couples inconvenienced women by using two names: their maiden name for professional use and their legal married name for official documents. This was argued to amount to gender discrimination because being forced to choose a single surname infringes on personal dignity and diminishes equality between men and women. The resulting judgment has especially been criticised by women’s rights group who argue that the rule is sexist and anachronistic, thus leading to disadvantages for Japanese women. This article sets out to assess the ruling and its impact on Japan’s society from a feminist jurisprudential perspective.


Historical background

The highly controversial same surname statute stems from the Civil Code, which was enacted in 1896, during the Meiji Era of Westernizing Reforms, which lasted from 1868 until the death of Emperor Meiji in 1912[2]. The Meiji Civil Code served as the legal underpinning of the family system in pre-war Japan and mandated that all members of a family must use the surname of the head of the family, which in principle was the husband. It should be noted that until 1870 the use of surnames was generally uncommon in Japan’s general public and was introduced by the Meiji Reformers in accordance with their efforts to transform Japan from an isolated feudal society into a modern state fit for opening up to the international community[3]. Moreover, these efforts included fundamental changes affecting internal politics, economy, military and foreign relations. Interestingly, it was decided in 1876 that women should keep their own names upon marriage, however, in order to conform to the Western practice of the time, the rule was reversed in 1896[4].


During the post-war period of occupation by the Allied Powers until 1952, the Empire of Japan was transformed by the enforcement of the Constitution of Japan in 1947 into a democratic state simply known Nihon-koku, literally the State of Japan. In addition, the Japanese legal system including the Meiji Civil Code was under revision, which led to the creation of Article 750 of the code[5]. Article 750 still requires that a married couple is obliged to adopt one family name, but does not specify that it has to be the husband’s family name. Thus, the family name the couple chooses may be either that of the husband or the wife.

After Japan’s 1985 ratification of the Convention on the Elimination of All Forms of Discrimination Against Women, an international treaty adopted in 1979 by the United Nations General Assembly, there was growing criticism about the provisions of the Civil Code with many demanding that those decisions should be re-examined due to their discriminatory nature against women. As public calls grew louder, the Justice Ministry introduced a legislative panel in 1996 that proposed amendments to legalize having separate surnames and also to shorten the six month ban on remarriage, another controversial provision which prohibited women from remarrying after a divorce despite no equivalent prohibition for men. What could have been the greatest post-war overhaul of Japanese family laws was nevertheless fiercely opposed by conservative lawmakers within the Liberal Democratic Party, who said that changes to the rules would undermine traditional family values, and the proposals were shelved. Attention should be brought to the fact that the U.N. Committee on the Elimination of Discrimination against Women has repeatedly urged the government to take “immediate action” to amend the law. Increasing pressure and campaigning from women rights group has finally led to a reconsideration of the same surname provision by the Supreme Court.

The judgment

The suit against the law was filed in 2011 by five women, asking the nation’s highest court to declare the same surname rule unconstitutional as it violates both Article 14 of the Constitution, which guarantees equality under the law, and Article 24, which stipulates individual dignity and essential equality of the sexes. The plaintiffs argued that this rule amounts to gender discrimination because being forced to choose a single surname infringes on personal dignity and the freedom to marry. In addition, the plaintiffs cited inconveniences in the workplace as a significant reason for their opposition to the rule. Adopting a new name would create major complications for a woman who has been known by her maiden name in her professional life and workplace. This pressure to forfeit a maiden name is a particular disadvantage for women with professional careers and may even trigger an identity crisis, as being forced to giving up one’s name would constitute a loss of personal identity and belonging. This coincides with reports of emotional distress in the form of depression and difficulty sleeping some of the plaintiffs’ experience. Furthermore, the current system would force some couples to choose not to marry as they want to preserve their freedom of keeping their names. Since the period in which women use their maiden name has become longer these days due to the tendency to marry later in life, the change of surnames after marriage is now more likely to cause inconveniences than it did before.

Finally, on 16 December 2015, the Supreme Court’s Grand Bench, composed of 15 justices, reached a decision, with the majority Supreme Court opinion stating that since the question of which surname to adopt is a decision every couple can make, there is no “formal inequality” between the two genders and the same-surname system is therefore constitutional[6]. The court also rejected the plaintiffs’ appeal for a combined ¥6 million in compensation. Noting that the law gives married couples the freedom to decide which surname to adopt, Presiding Justice Itsuro Terada observed that the same surname provision is not discriminatory in itself. Presiding Justice Terada further remarked that sharing a single family name is a system “deeply rooted in our society” and is meaningful in that it “enables people to identify themselves as part of a family in the eyes of others.” The Supreme Court decision acknowledges that the change of surname could create professional disadvantages, in most cases among women in the workplace, and may cause identity crises for women who are forced to give up their maiden name. The decision also accepts that the current system restricts some people in their freedom of choice to marry. However, the Supreme Court suggests that these hardships can be mitigated through a broader use of pre-marriage surnames, especially in the workplace. As women are free to use their maiden names in daily life and informally, the same surname rule is not restricting them in an absolute manner.

Evaluating the judgment from a feminist jurisprudential perspective


First and foremost, it needs to be clarified what a feminist jurisprudential perspective is. As described by prominent feminist scholar, Catharine MacKinnon, feminist jurisprudence is the analysis of law from the perspective of all women in accordance with the central focus of feminism, which aims to present women’s side of things[7]. Feminist theory recognizes that throughout history and even today, public discourse has been almost exclusively conducted by men from a male perspective[8]. Thus the nature of womanhood and interests of women have been determined by men. In addition, feminist jurisprudence is the analysis and critique of law as a patriarchal institution from the perspective of a group that is outside those patriarchal structures, institutions and assumptions, at least in the sense that it did not participate in their formulation[9]. It is argued that the law is not neutral, but patriarchal as it embodies the worldview of patriarchy that systematically subordinates women and violates women's rights[10].

Several issues concerning the Japanese Supreme Court’s judgment can be identified. Notably, the Supreme Court of Japan has been characterised as the most conservative constitutional court in the world[11]. One might describe it as “conservative” in the sense of being so passive that it almost never challenges the government. Since its creation in 1947, the Saikō Saibansho has struck down only eight statutes on constitutional grounds[12]. By way of comparison, Germany’s constitutional court, which was established several years later in 1951, has struck down over 600 laws[13]. In addition, one might describe it as “conservative” in the sense that it happens to share the ideological views and preferences of Japan’s long-ruling conservative party, the Liberal Democratic Party (LDP)[14] . Interestingly, resistance to the idea of spouses retaining separate names remains particularly strong among lawmakers within the LDP. Despite Prime Minister Shinzo Abe’s push for “womenomics,” or the greater inclusion of women in society and economic life, the party opposes allowing separate surnames on the grounds that it would destroy the sense of family unity.

Taking a closer look at the use of pre-marriage surnames as a solution to mitigate disadvantages for women, as mentioned by the ruling, the Supreme Court fails to recognise that the use of maiden names is not based on law but solely informal. Thus, it not allowed to be used in official or legal matters, such as in opening a bank account or obtaining a driver’s license and passport. In all of these official matters the use of a name is of fundamental importance and serves as a way of both self-identification and identification to others. In addition, workers were allowed to use their pre-marriage surnames for their work at only 64.5 percent of the firms in 2013 according to a survey of major companies by the private Institute of Labor Administration[15]. Working in a firm which does not allow the use of maiden names constitutes a highly restrictive environment and disables women fully from using their pre-marriage name.

Moreover, the Supreme Court fails to fully comprehend that for many women the change of their surname upon entering into marriage is equivalent to losing their identity which they have built up through their life and career. The legal consequences of a couple who chooses not to get married in order to retain their individual surnames are drastic: they cannot exercise joint parental authority over their children, and neither can become a legal heir to the other.

The court’s statement that the same surname rule is not discriminatory in itself, as it allows couples to choose which surname to adopt, completely disregards the actual reality. Survey findings by the Health, Labor and Welfare Ministry over the past 40 years highlight the fact that an astonishing 96 percent of married couples opt for the husband’s family name[16]. Furthermore, the decision making process about which surname to use is influenced by inequality and power dynamics. In traditional Japanese marriage, one person, usually the woman, enters the household of the partner and is registered as a member of that household[17]. Men are seen as more powerful in traditional Japanese culture[18]. This decision making  process is not based on individual dignity and gender equality, which means that Japanese women are not truly free to choose if they want to take on their husband’s last name.

It is worth emphasising that all three of the female justices on the Grand Bench found the same-surname provision to be unconstitutional on the grounds that it imposes irrational conditions on people who marry and restricts the freedom of marriage[19]. Their opinion illustrates the gender gap awareness surrounding the split Supreme Court judgment and helps to represents the sentiments of the many women who suffer both personal and professional disadvantages under the system. Waseda Law School professor Mutsuko Asakura observed that the Supreme Court ruling underscored the gross lack of understanding by male judges toward inconveniences long imposed on women[20]. With Japan being the only major developed country that prevents couples with different surnames from registering their marriage, it further risks cementing the international community’s perception of Japan as a country intolerant of diversity and insensitive to human rights. 

In conclusion, adopting a feminist jurisprudential perspective provides a basis to critique the recent Supreme Court judgment effectively. Upholding the constitutionality of the same surname rule discourages women from remaining in the workforce after marriage and childbirth, and thus limits women’s freedom in expressing their identity and achieving true gender equality. The Civil Code provision in question is based on an outdated view of the family comprised of patriarchal values and omits the diversified and changing perceptions surrounding family and public perceptions of women. From a feminist jurisprudential perspective, this rule, which takes away a woman’s name and impacts her freedom to make choices about her identity, is discriminating against women and violates women’s rights. It should be further considered that the role of women in Japanese society is moving up the political and economic agenda and government efforts have increasingly focused on attracting more women into the workforce as an attempt to emerge from economic stagnation. Prime Minister Shinzo Abe described Japan's women as its most underutilized resource, and set specific targets to raise female labour participation. Those goals are part of “Abenomics[21], a strategy that includes a mix of government spending, central bank stimulus and structural reforms designed to promote growth. Allowing women to keep their names when pursuing a professional career help set Japan on the right path for further change.

This law is not just about names, it ultimately is about women’s ability and freedom to express their social, cultural and personal identity by making an independent and free choice. The Supreme Court’s decision to uphold a rule which disregards societal change and is rooted in patriarchal values can be seen as a step back for women’s rights and the pursuit of gender equality in Japan. As Kaori Okuni, one of the deeply disappointed plaintiffs, said: "This has consequences for the future, meaning suffering for those who plan to marry and those who are set to be born."[22]


[1]  Saikō Saibansho [Sup. Ct.] Dec. 16, 2015 SAIKŌ SAIBANSHO MINJI HANREISHŪ [MINSHŪ] 1368 (grand bench).

[2] Epp, R., The Challenge from Tradition: Attempts to Compile a Civil Code in Japan, Monumenta Nipponica, Vol. 22, No. 1/2 (1967), pp. 15-48.


[3] Ariga, K., The Family in Japan, International Issue on the Family (Nov., 1954), pp. 366.

[4] Steiner, K.; Postwar Changes in the Japanese Civil Code, 25 Wash. L. Rev. & St. B. J. 286 (1950). 

[5] Epp, R., The Challenge from Tradition: Attempts to Compile a Civil Code in Japan, Monumenta Nipponica, Vol. 22, No. 1/2 (1967), pp. 47-49.




[6] Saikō Saibansho [Sup. Ct.] Dec. 16, 2015 SAIKŌ SAIBANSHO MINJI HANREISHŪ [MINSHŪ] 1368 (grand bench).

[7] MacKinnon, C., Women's lives, men's laws. Cambridge, Massachusetts: Belknap Press of Harvard University Press (2005).

[8] Wishik, H.R., To Question Everything: The Inquiries of Feminist Jurisprudence, Berkeley Journal of Gender, Law & Justice, Volume 1, Issue 1, Article 3 (September 2013).

[9] Cain, P., Feminist Jurisprudence: Grounding the Theories, Berkeley Journal of Gender, Law & Justice, Volume 4, Issue 2 Article 1 ( September 2013).

[10] Stemple, L, Human Rights, Sex, and Gender: Limits in Theory and Practice, Pace Law Review, Volume 31 Issue 3 Article 5 (June 2011).

[11] Matsui, S., Why Is the Japanese Supreme Court So Conservative? Decision Making on the Japanese Supreme Court, Washington University Law Review, Volume 88 Issue 6 (2011).

[12] Law, D., The Anatomy of a Conservative Court: Judicial Review in Japan, Texas Law Review, Vol 87 No 7 (June, 2009).

[13] Gusy, Christoph. Parlamentarischer gesetzgeber und Bundesverfassungsgericht. Duncker & Humblot (1985).

[14] Luney, P. Jr., The Judiciary: Its Organization and Status in the Parliamentary System, Japanese Constitutional Law, 123-148.

[15] Institute of Labor Administration, Labour Situation in Japan and its Analysis: General Overview 2012/2013 (2013).

[16] Health, Labor and Welfare Ministry: Employment, Wage and Labour Welfare Statistics Division, Survey on Social Developments (2014).

[17] Ariga, K., The Family in Japan, International Issue on the Family (Nov., 1954), pp. 364.

[18] Ariga, K., The Family in Japan, International Issue on the Family (Nov., 1954), pp. 368.

[19] Saikō Saibansho [Sup. Ct.] Dec. 16, 2015 SAIKŌ SAIBANSHO MINJI HANREISHŪ [MINSHŪ] 1368 (grand bench).

[20] Osaki, T., Japan’s top court upholds same-name rule for married couples, overturns remarriage moratorium for women, Japan Times (17 Dec 2015), accessed under

[21] Riley, C, Abenomics boosted as LDP earns sweeping victory, CNN Money (22 July 2013), accessed under

[22] Reuters Tokyo, Japanese women in court fight to keep their surnames after marriage, accessed under (21 Dec2015). 

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