Debates Over Constitutionalism in Recent Japanese Constitutional Scholarship

Abstract

The purpose of this paper is to survey the debates over constitutionalism in recent Japanese constitutional scholarship. Section 1 introduces the definition of constitutionalism proposed by the most well-known Japanese constitutional scholar and supported by a majority of scholars. It then describes the historical development of constitutionalism from its birth in England to its current form including the judicial review system, followed by the consistency of constitutionalism with welfare state or democracy. In section 2, the scope of constitutionalism is demonstrated through current leading scholars’ literature. This section also discusses the classification of constitutionally guaranteed human rights, the active role of the people in the administration of the state, and the difference between constitutional order and constitutional law. Section 3 considers whether constitutionalism can exist across state borders. It distinguishes the globalization of constitutionalism from global constitutionalism. Section 4 discusses the most controversial issues of constitutionalism in Japan: pacifism and constitutional amendment. Nowadays, the term ‘constitutionalism’ is frequently used in political contexts in Japan concerning a constitutional amendment draft released by one of the incumbent political parties and the recently established Legislation for Peace and Security. Further, Japanese constitutional scholars’ majority views about constitutionalism are discussed along with the influential critics.