Constitutional Patriotism and National Identity Coexist in Japan - conversation with Hajime Yamamoto

My first question goes back to the era after the Meiji Restoration in the 19th century when ‘western jurisprudence’ was received in Japanese society. How could the country manage to reserve its own legal tradition after that era?

In traditional Japanese society before the Imperial Restoration (1868) of Meiji, the characteristics of the legal system and legal culture were to limit the role of law to maintaining public order.

The principal aim of law was to govern people.

As for conflicts among individuals, it was desirable to avoid the judicialization of private conflicts and to resolve disputes in the informal way in a reciprocal concession. Having abandoned its isolation policy towards foreign countries just before the Restoration (1858), Japan began to modernize in order to obtain recognition as a civilized nation by Western countries. It is for this reason that Japan quickly imported European legal and political systems on its own initiative for the creation of a modern nation comparable to European counterparts. Extremely rapid introduction of a recruitment system, school system, family registration system and local administration of European origin are examples. As for the preservation of its own legal tradition, one finds a total discontinuity from ancient legal systems practiced under the Edo period. The authority of the Emperor was invoked to create a kind of a modernized concept of the “Japanese tradition” where the Emperor was supposed to reign the country politically since the establishment of Japan in BCE 660. Although an absolute power of the Emperor was presented as the Japanese tradition by the oligarchical government during the Meiji era, in fact it was a fictitious history. In spite of the establishment of modern legal codes, conventional informal ways of dispute resolution and various legal practices have existed. So, there is a coexistence of tradition and reform and a gradual transformation of Japanese society since the Meiji Restoration until now.

The bestowal of the Meiji Imperial Charter in 1889 – the model for which was the Prussian monarchy of nineteenth century, the most authoritarian in Europe – allowed this country to establish a powerful system of government at the expense of civil liberties. The Emperor was defined there as a hereditary ruler by the divine law and his status declared sacred and inviolable, which was justified in a religio-historical way.

One does not find preservation of the Japanese tradition but

a furious reaction to western modernity in Japan in early 20th Century.

In the 1930s in political ideology and legal theory, the mysterious, authoritarian and ethnocentric idea of Kokutai (National character) was emphasized by the government. It had nothing to do with the constitutional text of Meiji. However, it paved the way to oppress the freedoms and rights of Japanese subjects during WWII. The domination of this idea strongly encouraged a totalitarization of Japan until 1945. The literal translation of this word Kokutai is "body" or "essence" (tai) "country" (koku). The credo of Kokutai is composed by three main elements as follows. First, it is "the thought of the divine country," that is to say the political principle in relation to the outside, that the gods created the Japanese archipelago and it is still ruled by the descendants of gods and is superior to other countries. Secondly, it is "the worship of the Emperor," which is a principle of domestic political legitimacy, that the Empire of Japan is governed by the direct descendants of the Emperors and the original emperors are living gods. Thirdly, there is the "Japanese Spirit." According to this idea, the Japanese subjects have high duty to sacrifice their lives for the benefit of the Emperor without hesitation.

One of the distinctive elements of the Japanese legal tradition is its unique approach to dispute settlement. How is it different and what else is unique to the Japanese legal culture?

The guarantee of human rights is considered to be a very important issue in Japan under the current Constitution established in 1946. A particular Japanese conception of or sensitivity on human rights exists in Japanese socio-legal culture. It means

the core idea of human rights tends to be perceived as “consideration of others” by ordinary Japanese people.

In fact, a kind of traditional communitarian feeling of “consideration of others” and a guideline of life as “don’t trouble others” still constitutes a social moral of contemporary Japanese.

Therefore, one tends to interpret concepts of human rights in accordance with such a traditional feeling. For example, one tends to consider that the main human rights issues occur between private persons, not between public authorities and citizens. Most of Japanese people think that privacy violated by private persons is the most typical human rights issue. On the contrary, ordinary people are not very sensitive to inhuman treatment by public authority.

In light of this conception, I am wondering how the civil law is “constitutionalized” and how courts are involved in the interpretation of the Constitution.

Under the judicial review system, courts can interpret the civil law and other statute by referring the constitutional values. For instance,

courts can invalidate a juristic act by invoking the general clause of the civil law,

that is, its article 90 which stipulates that “A juristic act with any purpose which is against public policy is void”.

In the terms of constitutionalism, the Constitution adopted after the Second World War meant a disruption. Under these circumstances how could the country preserve its constitutional identity and what are its elements?

The current constitution is philosophically based on the idea of Western modern natural law theory. The Constitution recognizes the very existence of ‘a universal principle of mankind upon which this Constitution is founded’ (Preamble). Although the new Constitution maintains the traditional monarchical system, other parts of it are fundamentally liberal and democratic. It is noteworthy that

the current Constitution doesn’t mention any particular Japanese identity nor its elements.

This is one of the causes of frustration among the conservative camp. In the 1950s, successive conservative governments began to eagerly affirm the necessity and importance of establishing a new authoritarian constitution motivated by a nostalgic feeling for the Meiji Constitution. It would reinforce the status of the Emperor as head of state, modify the pacifist clause to admit rearmament, reinforce powers of order and control of central government to local entities, facilitate the constitutional amendment procedure and give extensive power to the State so as to limit citizens’ exercise of liberties and rights and emphasize their duties. Therefore, ‘Abolish the imposed Constitution by the Americans under military occupation and establish a new autonomous’ one has been a typical political slogan of the conservative camp. However, a strict condition of constitutional amendment as a concurring vote of two-thirds or more of all the members of each House couldn’t be satisfied by the conservative party.

At the very exceptional time when the LDP was the leading opposition party (2009-2012), it published a very conservative draft for a total amendment of the current Constitution (The party is in power since 2012 until now). The preamble of the draft declares that the aim of establishing a new constitution is to pass on good national tradition and our nation to future generations. It expresses a narrative of Japan’s long history, unique culture, and the Emperor very naively. In addition, it is symbolic that the subject of the first two paragraphs in the preamble is ‘Our nation’, not the present ‘We, the Japanese people’. The Preamble is led by rather nationalistic and state-centered sentiments.

Many people are concerned with a rising of intolerant anti-liberal nationalism and an increase of restrictions of liberties of citizens through the realization of a constitutional amendment inspired by this conservative draft. It seems since 1945 Japanese society has been balanced by a long-term political domination by the conservative camp and a western type of liberal democracy whose legal basis was given by the current Constitution. Consequently, a kind of constitutional patriotism and a so-called national identity have struggled and coexisted throughout the post-war period.

How in your view the Japanese court system along with the Supreme Court have been able to preserve the traditional national identity of Japan despite of the imposition of a Western type constitution?

For example, the Supreme Court does so by emphasizing the importance of conventional wisdom when she examines constitutionality of a statute or an act of public authority. In fact, conventional wisdom is generally favorable to preserving the traditional national identity.

Article 9 of the Constitution that bans Japan from maintaining armed forces is one of the most controversial provisions, especially under the shifting circumstances. How do you see the debate unfold around this provision?

It is true that due to Article 9 of the Constitution, the constitutionality of the Self Defense Forces (SDF) has been an important ongoing legal issue in Japan since World War II. Successive governments have argued that even under Article 9 of the Constitution, Japan is not prohibited from possessing a ‘minimum defensive force necessary for its self-defense’ . According to this constitutional interpretation, if Japan were to have a military force beyond that minimum level, however, the situation would become unconstitutional because it would amount to ‘war potential’ prohibited by Article 9 of the Constitution. Therefore, successive governments have taken the view that the military power of the SDF does not reach the level of such ‘war potential’. In fact, the Japanese Supreme Court has yet to definitively rule on the SDF’s constitutionality under the political question doctrine. Public opinion on the presence of the SDF is contradictory. On the one hand, a majority holds that the existence of the SDF is necessary for national defense and to provide aid to victims of disasters. But this same majority has long been against the deletion of paragraph 2 of Article 9 of the Constitution. As for legal doctrine, the majority of constitutional scholars take the view that the SDF is unconstitutional, respecting the letter of the Constitution.

Despite the gradual development of the SDF, Article 9 has exerted a considerable, concrete impact on Japanese military policy since World War II. Indeed, the existence of the pacifist Article and movements to safeguard the Constitution prevented a total and radical remilitarization of postwar Japan. To remilitarize Japan in sharp contradiction with the pacifist Article of the Constitution, the government has presented many strained and even acrobatic constitutional interpretations.

In July 2014, the Cabinet meeting announced a change in the governmental constitutional interpretation of Article 9. This change of the Government’s interpretation of Article 9 widens the practical scope of the right of self-defense, because even if there is no direct military attack against Japan, when the strict conditions under the following are satisfied: ‘as a result threatens Japan’s survival and poses a clear danger to fundamentally overturn people’s right to life, liberty and pursuit of happiness, and when there is no other appropriate means available to repel the attack and ensure Japan’s survival and protect its people’, Japan is constitutionally able to use the minimum necessary force. Within the context of constitutionalism this criticism has been very influential politically. Despite one’s political position towards the military-diplomatic policy of the government, we ask if this change in the government’s constitutional interpretation regarding the right of collective self-defense is a constitutional crisis. We wonder

whether it is legally appropriate to argue that this change in the government's interpretation leads to a crisis of constitutionalism.

Not only the Cabinet Legislation Bureau, but every authority is able to change its interpretation of law and rules if they judge it more appropriate to do so in a considerable change of situation.

What other provisions of the 1947 Constitution that are in contrast with the Japanese identity are currently marked by public debates? How does the country – including its government and courts – aim to protect constitutional identity and how vivid the debates are to this end?

Influenced by Confucianism, some conservative people insist that we are interdependent socially in national community, therefore

it is quite unnatural to have more legal rights than legal duties in the Constitution.

However, an overwhelming majority of people aren’t favorable to a constitutional amendment that aims to impose more duties than present ones at constitutional level. Consequently, it is not marked very much by public debates.

One can remark that one of the themes of the vivid public debates is the problem of separate surnames of Japanese married couples. In fact, according to the current Article 750 of the Civil Code, a husband and wife shall adopt the surname of the husband or wife in accordance with that which is decided at the time of marriage. 96% of wives have accepted to change their family name following the established social custom. However, recently more and more people would like to reform the family name system to permit the married couple to be able to keep their family names separately after the marriage encouraged by gender equality movements. Yet, the conservative camp is eager to maintain such a family name system because they consider it constitutes one of the most important elements of Japanese traditional social order. The Supreme Court of Japan judged this surname system has no constitutional problem in relation to equal protection of law and right to self-decision in 2015 and 2021. It means the judicial power has protected one of the legal systems based on Japanese socio-cultural identity against arguments for reform based on the constitutional principle and the constitutional right.