This article will consider the issue of society in population decline, a challenge currently facing Japan, and the law from the perspective of legal philosophy, a discipline that examines the fundamental principles of legal phenomena. Should legislation really be the prescription for a society in population decline?

Advent of a society in population decline

Japan’s population is believed to have peaked at 127.84 million in 2004 and started to enter into decline in 2005. It is estimated that, if the nation’s birth rate (total fertility rate based on the average number of children born to women of child-bearing age (15–49 years of age)) were to continue at the same level as the rate recorded in January 2012 (1.35), Japan’s population would fall to 86.74 million in 2060 (National Institute of Population and Social Security Research). Although Japan is not the only country experiencing birth rate decline, it is one of the countries facing serious social challenges due to its falling population. The circumstances that are manifested as a society in population decline are a combination of three phenomena, namely (1) decline in population (number), (2) aging and (3) declining birth rate.

The academic discipline that conducts the above kind of statistical research and analysis into population decline, looking at the number, structure and change in population, is called “demographic analysis.” Demographic analysis is known as formal demography, and could be described as a form of population statistics. In the study of population statistics and population change, it must not be forgotten that there are three elements to demographic change, namely births, deaths and migration (comprises both inward and outward movement). In formal demography, there are established rules for the relationship between these three factors of population dynamics and the growth and structure of population. These rules predicted the possibility that the population would start to age in the 1960s and that population decline would start in the 1980s.

Japan’s population growth “tanker” stopped moving

The focus of discussion of population decline has started to shift from the problem of aging to the issue of Japan’s declining birth rate. It is important, however, to keep all three of the elements of demographic change – births, deaths, and migration – in mind. In Japan, the birth rate has been at 2.1 or less since 1974 and is said to have been below replacement level for more than half a century, since 1956. So why, despite this, did the population keep increasing until 2005, as I mentioned in the beginning of this article? The answer is very simple. It was because, until that year, births still outnumbered deaths. The natural growth in population between 1947 and 1984, which is calculated by subtracting the number of deaths from the number of births, was greater than the number of deaths. Moreover, for almost twenty years, it exceeded the number of deaths by at least 50%.

This approximately forty-year long large natural growth in population meant that Japan had what we might describe as “savings” in its population “bank.” The outcome of this was that the inevitable drop in Japan’s population was put off to some future date. The past high birth rate and continued low death rate brought about the phenomenon of demographic momentum, which could be likened to a tanker that continues to move forward even after its engine is switched off. However, once the birth rate falls below replacement level and stays there for a long period, it triggers a reverse momentum of population decline. Those population “savings” turn into an accumulated “debt,” reversing the population growth trend into a decline. Once a tanker has stopped, it will not easily start to move again. Even if the birth rate recovers to some extent, it is inevitable that Japan’s population will remain in decline for a long time.

Is the modernization of society responsible for population decline?

So, why has Japan become a society in population decline? To put this question another way, what kind of social changes, economic circumstances and political situations have impacted on our population dynamics and structure? Substantive demography is the academic discipline, which includes demographic economics and demographic sociology, that analyzes the social determining factors of birth and death. The answers are many and varied, but one of the important outcomes of this kind of study has been the development of a grand theory called “demographic transition theory.” According to this theory, as societies modernized between the 18th century and the mid-20th century, they followed a course in which death rates and birth rates started to fall with different timing, resulting in a transition from a pattern of high birth and mortality rates to one of low rates. Modern Western societies were the first to follow this course.

The context behind this demographic transition theory, which could be described as the first of such theories, is economic development, urbanization and industrialization in the modern era. Subsequently, a second demographic transition theory, which called for the analysis of the mechanisms of decline in birth rate due to modernization from many different perspectives, was put forward. This theory held that the decisive factor in birth rate decline was the liberation from traditional norms and morals as a result of a greater emphasis on self-decision and self-actualization regarding sexual behavior, co-habitation with the opposite sex, marriage, divorce and childbirth. However, this second demographic transition theory has not gained as much traction as the initial theory, and there are many arguments against it. Some people hold the firm opinion that this situation is peculiar to certain parts of Europe, and we should be more circumspect about applying this theory to Japan.

Legislation as a response to a society in population decline

As mentioned above, it is difficult to identify the decisive social causes of the decline in the substantive birth rate. The relationship between socioeconomic factors and cultural factors is also very complicated. It is important to keep this point in mind in the development of any policies in response to population issues. In addition, there is, in fact, an important issue that legislators must be conscious of when realizing policies in the form of legislation. The Basic Act for Measures to Cope with Society with Declining Birthrate in 2003 and the Act on Overcoming Population Decline and Vitalizing Local Economy in 2014 were enacted in response to the rapid progression of Japan’s birth rate decline and aging population. These two laws are classified as so-called “policy laws” and have different characteristics from the more typical images of a law, such as the Civil Code and Penal Code.

In modern states, the enactment of laws has become an important means of responding to various social issues and realizing a diverse range of public policies. In quantity terms, most laws are resource-allocation policy laws, whose focus is the allocation of social resources, goods, and services and the promotion of a certain level of socioeconomic policy. These various policy laws, many of which have the words “Basic Act” in their title, stipulate the organization and authority of the bodies charged with implementing the policy, and the guidelines and procedures for their activities. They consist of advisory provisions and program provisions. There has been a sharp rise in the number of these basic acts since the 1990s, probably because the burden on politics has increased as society has become increasingly complex.

What are the problems inherent in policy laws?

Legislation in the modern state is characterized not only by the growth in resource-allocation policy laws, but also by the growth in the actual number of laws being enacted in general. The changes in the nature of the Cabinet Legislation Bureau are often mentioned. Also, the fact that the Legislative Council of the Ministry of Justice is no longer a permanent council is, in fact, a major change in that it indicates the shift in the roles of experts in society. These things could collectively be described as a major transformation in the foundations of governance. In response to such phenomena, serious study is underway in the legal philosophy field of legisprudence, which explores the quality of legislation and the question of what makes a good legislative system, into the establishment of a normative theory of legislation. The situation regarding policy laws such as basic acts is one of the serious issues that such studies must consider.

One of the most important issues surrounding policy laws is whether or not appropriate conditions for the legislation have been established, which, put another way, deals with the limitations of legislation. Specifically, we are seeing cases in which laws are proactively becoming involved in issues that concern morals, national consciousness and individual values, and these laws are being used as a way to advertise policy. For example, the Act on Overcoming Population Decline and Vitalizing Local Economy sets out in Article 2 as one of its fundamental principles, “the establishment of an environment for the formation of a society in which people can have hopes for marriage, childbirth and raising children, on the basis that decisions on marriage and childbirth should be left to the individuals concerned.” One cannot help gain the impression that, rather than a law, this is an advertisement of policy.

Can legislation be an effective prescription for a society in population decline?

Let us go back to our original question. Should legislation really be the prescription for a society in population decline? By their very nature, policy laws may not be able to avoid a certain political character. However, until now, I would argue that there has been a shared recognition that the contents of laws should be matters that are appropriate to be realized through the authority and power of the state. Even if the advent of a society in population decline is “an unprecedented state of affairs” (preamble of the Basic Act for Measures to Cope with Society with Declining Birthrate), it is actually for that very reason that we should be more cautious about making unreasonable demands of legislation that it be the prescription for our society in population decline. This, at this point in time, is my tentative answer to this question.

Yachiko Yamada
Professor, Chuo Law School, Chuo University
Areas of specialization: Legal philosophy, Civil Law

Professor Yamada graduated from the Department of Law, Faculty of Law, Chuo University, and completed the Master Program of the Private Law Course, Graduate School of Law, Chuo University.

Publications include, Contract Law Theory of Liberty [Jiyu no Keiyakuho Riron] (2008, Koubundou Publishers), and her recent contributions to legisprudence include “Legal Philosophy of Legislation: Reconsideration of Legisprudence” [Teidai Rippo no Ho Tetsugaku – Rippogaku no Saiteii], The Annals of Legal Philosophy 2014 (2015, Yuhikaku Publishing), “Skepticism of ‘Legislation’ as Collective Decision-Making – From the Perspective of Private Law” [Shugo Kettei to shite no “Rippo” – Shiho no Shiten Kara], Legisprudence Academic Forum – Changes in Constitutional Democracy and Reorganization of Legisprudence (Special Issue) [Rippogaku Gakujutsu Forum – Rikken Minshu-sei no Hendo to Rippogaku no Saihen “Tokushu”] (2015, The Horitsu Jiho Vol. 87, No. 8), and “Chapter 7: Process of Reform of the Civil Code (Law of Obligations) and the State of Legislative Process – From the Perspective of Philosophy of Legislation” [Dai 7 Sho, Minpo (Saikenho) Kaisei Katei to Rippo Katei no Arikata – Rippo no Tetsugaku no Shiten Kara], Reform of Legislative Practice [Rippo Jissen no Henkaku], edited by Makoto Ida and Yoshihiro Matsubara (2014, Nakanishiya Publishing).