Constitutional borrowing and political theory

Abstract

The term “constitutional law” is commonly used in several different senses, two of which are particularly relevant to an understanding of constitutional borrowing. First, almost every country has a written constitution that sets out fundamental rules and principles determining the composition and functions of the organs of central and local government, and regulating the relationship between the individual and the state. In addition to their written constitutions, countries are also understood to have an unwritten part of their constitutions comprising legislative acts, governmental orders, and court decisions governed by their written constitutions. Second, the rules and principles of constitutional law are understood to be described by legal statements. It is in this sense that one might say, “according to Japanese constitutional law, the right to dissolve the House of Representatives is the prerogative of the cabinet, not the prime minister,” though Japan’s written constitution does not specify this. Rather, such conclusions are reached by applying various interpretative tools within the constraints set by the constitutional text. Japan’s written constitution, the Constitution of Japan 1946, was not borrowed but rather imposed by the occupying forces after the Second World War; the historical facts surrounding the adoption of the Constitution of Japan, as summarized here, are not in dispute.1 After the war, the Japanese government was placed under the authority of General Douglas MacArthur, the Supreme