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Introduction: Historical Overview
- Edited by Colin P. A. Jones, Doshisha University, Kyoto
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- Book:
- The Annotated Constitution of Japan
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- Amsterdam University Press
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- 13 February 2024
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- 15 August 2023, pp 1-11
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Summary
Japan's present constitution is, obviously, a product of its history. An important facet of that history is the constitution which came before, the Constitution of the Empire of Japan, more commonly called the “Meiji Constitution,” after the Emperor Meiji who bestowed it on his subjects in 1889. A basic understanding of the historical background to both constitutions is thus important to understanding Japanese constitutional law today.
Since both charters are of comparatively modern provenance—at least when compared to the British or American constitutions—only a minimal inquiry into the history of Japan predating the Meiji Restoration of 1868 is necessary. There are numerous fine studies of the history of Japan after the Restoration by historians, so coverage of that period will also be brief. There are also several excellent accounts in English of the unusual circumstances of the constitution's birth during the postwar Occupation1 and at the time of writing all of the key documents could be accessed through the National Diet Library's “Birth of the Constitution of Japan” on-line exhibit. Thus, though a fascinating and dramatic story, only a brief outline of that part of the constitution's history will be provided in this work.
Prologue to Meiji: Ancient times through Tokugawa
Japan's legal system is comparatively modern. With the exception of emperors as a feature of government, virtually no Japanese laws or government institutions in existence today predates the Meiji Restoration of 1868, and most of those still in place can only be traced as far back as the birth of the Meiji Constitution or later.
The emperor system is a useful way of tracing the historical prelude to the Meiji Constitution. The first emperor, the probably mythical Emperor Jimmu, is said to have established the nation and acceded to the throne in 660 BC. According to the two earliest surviving historical narratives, the Kojiki (712) and Nihonshoki (721), Jimmu was a direct descendant of the deities that created the Japanese islands.
The supposedly unbroken lineage of emperors that followed Jimmu thus establishes a putative link between the imperial system and the divine origins of the Japanese nation. While this lineage no longer has formal political significance, it is relevant to the important role the emperor continues to play in the Shintō religion, including through forms of ancestor worship.
2 - Chapter II: Renunciation of War (Article 9)
- Edited by Colin P. A. Jones, Doshisha University, Kyoto
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- Book:
- The Annotated Constitution of Japan
- Published by:
- Amsterdam University Press
- Published online:
- 13 February 2024
- Print publication:
- 15 August 2023, pp 32-46
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Article 9 in a global context
The single article comprising Chapter II—Article 9—is by far the most famous feature of the Constitution of Japan, and the provision that likely has the most emotional dimension for the Japanese people. Many seem to take pride in their constitution's rejection of war and the pacifistic ideals it embodies. Others may have no objections to peace, but consider the restraints as a millstone around the neck that prevents the nation from protecting itself in a dangerous world.
Within Japan and elsewhere in the world there also appears to be a widespread perception of Article 9 as a uniquely Japanese contribution to constitutionalism. In 2014, Article 9 was even nominated for a Nobel Peace Prize. The large military described as a “Self-Defense Force” and existing under a constitution that disclaims “land, sea and air forces,” could also be seen as a uniquely Japanese institution.
The reality is more complicated. The degree to which any particular aspect of Article 9 is actually unique is debatable, particularly given the Japanese government's longstanding interpretation of it as permitting the maintenance and use of military forces for self-defense. The French constitution of 1791 established its military to “to defend the State against enemies from abroad,” and postwar constitutions of nations as diverse as (for example) Germany, Italy, the Philippines, Costa Rica and South Korea contain provisions comparable to at least parts of Article 9.1 Some small countries simply do not have armed forces without addressing the subject in their constitutions. Nor do the contents of Article 9 in a constitution promulgated in 1946 make Japan an “early adopter” of some of the principles it articulates. The horrors of World War II and the numerous smaller regional conflicts that preceded it make it easy to forget that the leading nations of the world—including Japan—had already ratified an instrument formally entitled “The General Treaty for Renunciation of War as an Instrument of National Policy,” more commonly known as the Kellogg-Briand Pact of 1928.2 Japan almost immediately violated this treaty with the invasion of Manchuria in 1931, conflict with China starting from 1937, and the surprise attack on the United States and other Allied Powers in 1941.
3 - Chapter III: Rights and Duties of the People (Articles 10–40)
- Edited by Colin P. A. Jones, Doshisha University, Kyoto
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- Book:
- The Annotated Constitution of Japan
- Published by:
- Amsterdam University Press
- Published online:
- 13 February 2024
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- 15 August 2023, pp 47-190
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Summary
Overview
Article 10 of the Potsdam Declaration made the establishment of the respect for fundamental human rights a condition of Japan's surrender. Chapter III of the Constitution of Japan, which covers the rights and duties of the people, was in large part how this principle was put into effect. One major factor which contributed to making the protection of human rights such a focus was undoubtedly the very weak protection they had enjoyed in Japan under the Meiji system, a situation about which we may begin this chapter with a few words.
One well known anecdote related to Japan's selective adoption of a legal system based on western models in the Meiji era is that the language lacked a word that “right” could be translated into and one thus had to be invented from scratch (kenri). The profundity of this story is somewhat blunted by the fact that the Japanese language produces huge numbers of new words each year without it really impacting the ability of people to use the thing being described, and also by the fact that Japan in the preceding Tokugawa era had long experience with concepts analogous to property and contractual rights in the field of private law. It does however usefully serve as a simplified metaphor for the discomfort that members of the Meiji ruling class felt towards the idea of creating a set of legal rights that the people could use specifically against the new state which they were in the process of building.
This unease is reflected in the content of the Meiji Constitution's second chapter which, like Chapter III of the current one, covers rights and duties. The rights enshrined in the Meiji Constitution differed from those in the current constitution in three major ways. The first is that most current rights simply were not in it. Economic and social rights were completely absent while rights related to the criminal process, intellectual freedom and procedural rights against the state for the most part existed only in very rudimentary form. The second is that the small number of rights that were included were always qualified as being subject to the provision of law. While this did not necessarily deprive them of all meaning as they could still serve as a check on arbitrary abuse, it did mean that they could be limited or stripped away through regular legislation as the government saw fit (as it, not coincidentally, often did).
Preface
- Edited by Colin P. A. Jones, Doshisha University, Kyoto
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- Book:
- The Annotated Constitution of Japan
- Published by:
- Amsterdam University Press
- Published online:
- 13 February 2024
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- 15 August 2023, pp xiii-xx
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Summary
Statutory annotations are a standard reference work for law students, academics and legal practitioners in Japan. With respect to the Constitution of Japan a number of excellent works—some going by the name of kommentāru (the Japanese rendering of the German “kommentar”)—are available and provide an article-by-article explanation of what the words of each provision of the charter mean. Depending on the version, there may also be capsule descriptions of important court cases in which a provision was interpreted, as well as summaries of what academia thinks about the subject. As a means of acquiring a basic grounding in what the constitution means, these books are a very useful starting point—if you can read Japanese.
There is, of course, a large body of scholarship in English on the Japanese constitution, including works by some of the authors who have contributed to this volume. However, a great deal of scholarship in English has tended to be focused on specific areas: criminal justice, freedom of speech, religion, and of course the famous “no war” provisions of Article 9. There are only a few books offering a comprehensive overview of the entirety of the constitution, and none offering a text-based, article-by-article explanation. This book is a collective effort by a team of scholars to remedy that deficiency; to make the Japanese constitution broadly accessible in its entirety to the many people who are interested in it or need to know about specific aspects of it for comparative purposes, but are unable to read about it in Japanese.
While this work will try to offer the basic “annotation” format familiar to Japanese readers, there are some necessary differences. First, being based on an assumption that many non-Japanese readers will know little or nothing about Japan or its legal system, an effort has been made to provide additional contextual information. Second, being also based on an assumption that readers will have little or no ability to read Japanese, this book will also point out some of the linguistic nuances in the Japanese version that are either missing or different in the English.
As an academic discipline, constitutional law in Japan can sometimes seem highly doctrinal, not to mention political, particularly with respect to controversial subjects such as the existence and use of the nation's Self-Defense Forces.
1 - Chapter I: The Emperor (Articles 1–8)
- Edited by Colin P. A. Jones, Doshisha University, Kyoto
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- Book:
- The Annotated Constitution of Japan
- Published by:
- Amsterdam University Press
- Published online:
- 13 February 2024
- Print publication:
- 15 August 2023, pp 15-31
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Summary
Overview
Just as with the Meiji Constitution, the first substantive provisions of the Constitution of Japan address the status of the emperor. A comparison of Chapter I of both charters reveals how much the role of the emperor has changed. Whereas under the Meiji Constitution he was vested with the vast powers of sovereignty, some of which were delegated to other parts of government (the judiciary, the Imperial Diet), under the current constitution he exercises a more limited range of powers and then only symbolically, always bounded by the “advice and approval” of the Cabinet.
Today the provisions of Chapter I are something of a constitutional backwater. Few court cases have arisen under any of its provisions and its eight articles generate almost no jurisprudence and little controversy, one exception to the latter being the question of succession, as discussed at Article 2.
The seemingly innocuous nature of Chapter I belies the controversy its generated at the time of the constitution's birth. Meiji constitutionalism had been dominated by the notion of kokutai (literally, the “body of the nation”), which under the Meiji Constitution became the expression of an entire system of Japanese society, religion and government with the emperor at the center. To question the role of the emperor, or even characterize it in a heterodox way could be a form of lesè majesté, or at least career suicide, as some constitutional scholars discovered the hard way. One of the reasons why communism was regarded as anathema in prewar Japan was because of its call for the abolition of the imperial system. To question the kokutai was a form of thought crime that led to the arrest of intellectuals and their “conversion” to the correct way of thinking. Seeking assurances from the allies about the preservation of kokutai—the emperor—as a possible condition for accepting the Potsdam Declaration arguably led to the dropping of the atomic bombs. Even in the face of total defeat, therefore, the dramatic changes demanded by the Americans in the role and characterization of the emperor were problematic for Japanese political leaders.
11 - Chapter XI: Supplementary Provisions (Articles 100–103)
- Edited by Colin P. A. Jones, Doshisha University, Kyoto
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- Book:
- The Annotated Constitution of Japan
- Published by:
- Amsterdam University Press
- Published online:
- 13 February 2024
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- 15 August 2023, pp 323-328
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Summary
The provisions of Chapter XI were transitional in nature and have no substantive effect today. They are thus mainly of historical interest.
Article 100: Effectiveness and Transitional Measures
Colin P.A. Jones
Article 100.
(1) This Constitution shall be enforced as from the day when the period of six months will have elapsed counting from the day of its promulgation.
(2) The enactment of laws necessary for the enforcement of this Constitution, the election of members of the House of Councillors and the procedure for the convocation of the Diet and other preparatory procedures necessary for the enforcement of this Constitution may be executed before the day prescribed in the preceding paragraph.
The constitution was promulgated in the fall of 1946 on November 3, the birthday of the Meiji emperor (now celebrated as “Culture Day”). It took effect six months later on May 3, 1947, the anniversary of which is also a national holiday.
Since the House of Councillors did not exist under the Meiji Constitution, it was considered necessary to specifically anticipate and ratify the passage of laws by the soon-todisappear Imperial Diet relating to necessary elections and other preparatory measures.
Article 101: Transitional Measure Pending Formation of House of Councillors
Colin P.A. Jones
Article 101.
If the House of Councillors is not constituted before the effective date of this Constitution, the House of Representatives shall function as the Diet until such time as the House of Councillors shall be constituted.
Article 101 anticipated the possibility of the constitution taking effect before the House of Councillors was constituted. This problem did not arise so the provision proved unnecessary.
Article 102: Transitional Measure for House of Councillors Term of Office
Colin P.A. Jones
Article 102.
The term of office for half the members of the House of Councillors serving in the first term under this Constitution shall be three years. Members falling under this category shall be determined in accordance with law.
Under Article 46 members of the House of Councillors are elected for six-year terms, staggered so that 50 percent of the membership is up for election every three years. Article 102 provided the mechanism by which this staggering was commenced: by designating half of those elected in the first elections to the chamber to serve a term of only three years.
5 - Chapter V: The Cabinet (Articles 65–75)
- Edited by Colin P. A. Jones, Doshisha University, Kyoto
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- Book:
- The Annotated Constitution of Japan
- Published by:
- Amsterdam University Press
- Published online:
- 13 February 2024
- Print publication:
- 15 August 2023, pp 229-247
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Summary
Overview
Chapter V defines the Cabinet. Read together with Chapter IV (the Diet) and Chapter VI (the Judiciary), it is easy to discern a US-style tripartite “separation of powers” structure in the constitution but even easier to be misled as to the degree of separation. This is further facilitated by the confusing use of the term “executive power” in the English version of Article 65, as discussed at that article.
Insofar as the political party that controls the Diet also controls the Cabinet, the “separation of powers” between the two is less meaningful than in a presidential system of government. In 2016 Prime Minister Shinzō Abe was widely ridiculed for describing himself as the “head of the legislative branch.” But as the leader of the party controlling a majority in both Diet chambers, he might have just been describing political reality, particularly given the dominant role played by the Cabinet in making many of the legislative proposals that become law, as discussed at Articles 59 and 73.
That the constitution contains an entire chapter devoted to the Cabinet is itself a form of refutation of the Meiji constitutional system. Article IV of the Meiji Constitution was comprised of only two articles, one describing the role of ministers of state (Article 55) and the other the Privy Council (Article 56). The word “cabinet” does not appear anywhere in the document.
The first cabinet (naikaku) with a prime minister was established in 1885, several years before the Meiji Constitution was even promulgated. However, the historical experience of those who created that constitution was that a person or institution formally defined as exercising some of the emperor's powers would ultimately usurp more of them, as had happened with the shoguns. Not only were the structures and operations of cabinets under the Meiji system not “constitutional”—in that they were not defined by the constitution, they were not even “legal,” in the sense that they were governed by imperial mandates rather than legislation passed by the Imperial Diet. Lack of constitutional foundations can be seen as a reason why cabinets under the Meiji Constitution were weak, but this might also be seen as a design choice.
Law and morality in evolutionary competition: Law: 1, morality: 0
- Colin P.A. Jones
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Is the law displacing morality? And should it?
‘Law is a bottomless pit and I have no inclination to fathom its depths.’