Postwar Constitution Research Articles

Contornos del derecho procesal contemporáneo

Un cambio de época significa ruptura de paradigmas, cambio de ideas y también de perspectivas. Pero un cambio de época es lento y está acompañado de una amplia zona gris, el ejemplo más cercano se vivió cuando la edad media entra al renacimiento, posteriormente a la ilustración para finalmente nacer la edad moderna o era de la razón. En esta línea evolutiva, la constitucionalización del derecho a partir de la adopción de las Constituciones materiales de postguerra, el reconocimiento de la pluralidad jurídica como coexistencia de diversos sistemas que interactúan, el acercamiento del common law y del civil law, y las formas de fusión que se empiezan a concretar a partir de teorías ius naturalistas -ius positivistas, son un síntoma claro de que se vive actualmente un cambio de época. En esta transformación las distintas áreas del derecho han empezado a migrar, no en vano actualmente al constitucionalismo se le denomina neoconstitucionalismo, el derecho laboral discute como prioridad el principio de realidad y la filosofia del derecho en su dimensión privada empieza a preguntarse por la moral y la justicia social. Y esta transformación hoy no le es indiferente al derecho procesal. De esto trata este artículo de establecer algunos lineamientos del cambio que se debe producir, especialmente a partir de la academia.

Phoenix arisen: Japan as peaceful internationalist at the 1964 Tokyo Summer Olympics

The dominant discursive narrative at the 1964 Tokyo Summer Olympics was that of Japan as a peaceful internationalist. No longer was it the aggressor and enemy of World War II. The post-war Constitution was the basis for this claim of a new Japan. The deployment of Japanese experiences as the only victims of atomic weapons buttressed Japan's moral claim to a new, ‘peaceful’ identity on the international stage, while providing rich material for domestic narratives of victimhood and suffering. It was a careful and nuanced balancing act – premised on inventing a forward looking Japan that was new and different from its martial past, while at the same time selectively remembering the past, both overtly and subconsciously, to erase problematic portions of it. This new peaceful identity for Japan, and the Olympics as the perfect stage for performing it, filled the discourse from the earliest stages of application to the Games themselves.

WAGING WAR: JAPAN’S CONSTITUTIONAL CONSTRAINTS

Article 9 of Japan’s postwar constitution subjects the nation to stringently worded constraints on its legal capacity to wage war. Although not the only constitution to include a renunciation of war,1 Japan’s postwar constitution is unique in its prohibition of military forces that make war possible.2

Bargaining Constitutional Design in Italy: Judicial Review as Political Insurance

Why would politicians, who expect to hold political power in the future, choose to create a constitutional court with the power of judicial review that can veto politicians' policies? Some theories suggest that international forces may be causal, as institutions or ideas are diffused geographically or within legal systems. Others focus on domestic politics as driving the decision to institute judicial review. Among these are the commitment, hegemonic preservation, party alternation and insurance theories. This article looks at the decision to establish a constitutional court in the Republic of Italy, the first post-World War II court in Europe that was not in a federal system. It argues that the insurance model drove the decision of the Italian Christian Democrats to support creation of a constitutional court at the point of constitutional design, but later to delay implementation once in power. Conversely, the Italian Communist–Socialist bloc opposed establishment of the court at the Constituent Assembly that wrote the post-war constitution on the ideological ground that it was contrary to popular sovereignty. However, once the leftist bloc found itself in the role of the opposition, it became a champion of the Constitutional Court and judicial review. The insurance theory is shown to explain the behaviour of the Christian Democrats in both design and implementation phases and the actions of the Communist–Socialist bloc during implementation.

Constitutionalizing Communications: The German Constitutional Court's Jurisprudence of Communications Freedom

In the United States, the debate over communications issues as disparate as network neutrality and public broadcasting seems to be carried out in a constitutional vacuum. While an effective response to these issues might call for some affirmative action by the government, the First Amendment is framed as a negative - government shall make “no law” infringing the freedom of speech. This paper explores the very different system that results from a constitution that is phrased in the affirmative, guaranteeing freedom of the press and broadcasting. The German post-war constitution was built on the ashes of a fascist dictatorship that had misused mass communications; its post-war constitution was structured to make such a catastrophe as unlikely as possible in the future. Broadcasting in particular was claimed for the project of democracy. In a dozen or so seminal cases from 1961 to the present, the German Constitutional Court has linked the electronic media to “opinion-building” in both the personal and public spheres. As in the United States, the German Court has been vigilant in detecting and forbidding government actions that might chill this process. Unlike the United States, however, the German Court has also seen potential dangers to speech emanating from the private sector, and required German legislators to take affirmative steps to protect speech - the free flow of information and opinion in society - against such dangers. The German Court’s jurisprudence provides a theoretical framework rich in implications for a world where - increasingly, and in different ways - information is power.

Anti-Liberalism and the Liberal Legacy in Postwar European Constitutionalism

Was liberalism really an outdated ideology in post-1945 European political systems, as claimed by some scholars? The great success of socialism on one side and various forms of Christian Democracy on the other could make that claim appear reasonable. In fact a closer view shows how postwar constitutions in some countries (Italy, France and Germany) presented once again fundamental liberal values, reformulated in different words. One of the roots of that difference is the gap between the Anglo-Saxon approach to liberalism, which takes into account history and communities, and the continental tradition of liberalism, linked to an abstract philosophical approach and highly dependent on long-standing struggles between Churches and the body politic.

The Tragic Career of Marius Moutet

Marius Moutet is well known in the historiography of twentieth-century French colonialism for his tenure as the Popular Front Government’s colonial minister in 1936–8. His second term at that ministry on the rue Oudinot in Paris in 1946–7, however, is usually mentioned in studies of France’s post-Second World War colonial crises only as a footnote. This essay focuses on his influence over French decolonization by examining his second ministry when Moutet was colonial minister in the governments of Felix Gouin (26 January–24 June 1946), Georges Bidault (24 June–16 December 1946), Leon Blum (16 December 1946–22 January 1947), and Paul Ramadier (22 January–22 October 1947), that is, during the formative stages of France’s post-war regime, the Fourth Republic. First, it analyzes Moutet’s influence on the formation and application of Title VIII of the post-war French constitution that defined the colonies’ status and institutions. Second, it examines his part in French intra-governmental struggles in 1946–7 over how to deal with the Vietnamese national movement dominated by the Viet Minh. These two issues reveal Moutet’s fundamental thinking and tactics in colonial policy, their limitations and his problems in applying them within divided governments.

New Evidence from Japan: The Emperor and Nomura Kichisaburō, October 1949

This brief essay might properly be divided into two parts: a newly-discovered document translated and reproduced in its entirety, as well as a brief historical sketch to introduce readers to the document. Authored by Admiral Nomura Kichisaburō in October 1949, the document is of interest for various reasons. First, it sheds light on the perceptions driving one of the central participants in Japan's postwar maritime rearmament process. That alone ensures the document's significance, if only because a lack of documentary sources have hampered historians in their efforts to penetrate the intellectual milieu in which Nomura moved in the latter half of Japan's occupation. The document's second point of significance rests with Nomura's audience: the Emperor. The fact that in late 1949 Nomura took his case to Hirohito suggests that, although Japan's postwar constitution had stripped the Emperor of his considerable political powers, the Throne remained something of a player in occupation-era Japanese politics. Finally, the document reproduced in this essay ought to be of interest to those with a scholarly interest in Japan's occupation, but are unable to penetrate the language barrier.

Feminism in Modern Japan: Citizenship, Embodiment and Sexuality

Feminism in Modern Japan is an original and path-breaking book which traces the history of feminist thought and women's activism in Japan from the late nineteenth century to the present. The author offers a fascinating account of those who struck out against convention in the dissemination of ideas which challenged accepted notions of thinking about women, men and society generally. Feminist activism took diverse forms as women questioned their roles as subjects of the Emperor, or explored the limits of citizenship under the more liberal post-war constitution. The story is brought to life through translated extracts of the writings of Japanese feminists. This cogent, carefully documented analysis will be welcomed by students from a range of disciplines including those working on gender studies and feminist history, where nothing comparable is currently available.

Contesting the 'will of the people': Australia and constitutional reform in occupied Japan

While the role of the United States in the development of Japan's post-war constitution is well documented, less is known of the role of other Allied nations. This article seeks to narrate the role of Australia in this process, giving particular focus to the debate over provisions to provide an avenue for popular expression of approval of the constitution via referendum and/or a Diet review process. This process was approved as an official Far Eastern Commission (FEC) policy, known as the 'Provision for Review'. The debate over this issue, and other elements of the constitutional replacement process, help illuminate the workings of the FEC, the relationship and conflict between the various Allied powers over policy and practice, the role of US unilateralism in the Allied control bodies, and the nuances of Australian policy towards Occupied Japan. Additionally and importantly, it demonstrates the appropriation of idealistic terms, especially the expression of the 'will of the people', by both sides of the Allied constitutional debate in order to further their own post-war agendas.

Religion and Conflict in Japan with Special Reference to Shinto and Yasukuni Shrine

Japan today projects an external image in which harmonious coherence provides a basis for technical efficiency and cultural excellence. Indeed there is much justification for this image. At the same time there are significant internal tensions which have a long history. Politics and religion have been intertwined for centuries. Political need has often been a powerful motor for religious developments. For example, the major Buddhist denominations were used to register the population and provide stability during the Tokugawa period (1600-1867). Subsequently, the political modernization of the Meiji Restoration (dating from 1868) set this aside and pushed up a new form of ideologized Shinto as a focus of national consciousness. Looking at it from the other side, religions themselves have often provided identities and loyalties, and therewith a motivation for political conflict. This applies to various forms of Buddhism, to Shinto, and to some of Japan's new religions. Thus while Japanese society in some respects appears to be very coherent, its history has frequently been one of internal tension and strife. Factionalism is strong even today, and takes both political and religious forms.

Japan's human security agenda and its domestic human rights policies

This article examines whether and how new approaches to human rights in the 1990s finally demonstrate the implementation of the commitment made by the Japanese government in the post-war constitution and whether these changes constitute the application of a human security agenda. It illustrates, across a range of case studies from Korean residents to children's rights, how different government and civil society activists have responded to international norms and influenced their domestic implementation. In conclusion, it compares the impact of these changes to an espoused commitment to human security since the 1990s.

Progressive representations of the nation: early post-war Japan and beyond

This paper compares Maruyama’s Masao’s concept of kokuminshugi, or ‘civic national consciousness’, and the Rekishigaku Kenkyukai’s version of minzokushugi, or ‘ethnic national consciousness’. During the late 1940s and early 1950s, both Maruyama and members of the Rekiken such as Ishimoda Sho, Inoue Kiyoshi and Toyama Shigeki, articulated their respective conceptions of nationhood as being ontologically separate from the domain of the post-war state.Yet, while Maruyama’s liberal nationalism sought a ‘healthy’ sense of nationhood through the construction of a democratic revolution, the public sphere, and the notion of politics and culture as fictions, the Rekiken focused upon how to ‘liberate’ the ethnic nation in Japan and thereby emulate national liberation movements in Asia. In so doing, the Rekiken’s approach denied any theoretical or historical legitimacy for the Japanese state and ignored the interrelated problems of national inclusion for those not scripted into their ‘discovery’ of Japanese ‘ethnic culture’, as well as specific forms of political organization and institutionalization for their ‘new’ ethnic nation. Some recent conceptualizations of the Japanese ethnic nation have been used on both the left and the right in similar revisionist critiques of the post-war constitution and political institutions.

The Clinton Administration and War Powers

The strongest of all governmental powers is the power to engage in war; and the strongest challenge for constitutionalism is to bring the war power of the state under meaningful control. The 1787 Constitution allocated some military powers to the Congress and others to the President as part of the scheme of constitutional checks and balances. To this day, however, the distribution of authority between the branches remains contested and uncertain. The Clinton Administration has had substantial opportunity to contribute to the evolution of constitutional practice concerning war powers, by virtue of numerous occasions of combat deployments, cruise missile strikes, and other forms of military engagement since January 1993. In broad outline, the constitutional practice of the Clinton Administration concerning war powers is similar to that of previous administrations in the sense that sweeping claims of executive authority have been tempered through pragmatic political accommodation. The legal opinions issued to explain the constitutional and statutory rationales for executive military initiatives embody some subtle differences from those of other administrations. This article compares the record of the Clinton Administration with those of its predecessors, after first briefly locating U.S. war powers practice in the context of crossnational comparisons. The subject of the Clinton Administration and war powers can be addressed from a crossnational perspective, along the lines of the comparative constitutional research on war powers I have been pursuing in other writing. In relation to the military intervention in Kosovo, for example, how did President Clinton's exercise of executive power compare to the authority of the heads of state or heads of government in the other member states of the North Atlantic Treaty Organization (NATO) that participated in the operation? Were other chief executives constitutionally authorized to commit their forces to a military campaign without reference to their national parliaments, as President Clinton effectively did, or are such decisions shared with parliament in the respective constitutional systems? Crossnational comparisons show variations in the degree to which national parliaments participated in determining the nature of a given state's commitment to the NATO engagement in Kosovo. President Clinton was not the only NATO leader who initiated his country's participation in the Kosovo operation without obtaining explicit authorization from the legislative branch. In the parliamentary system of the United Kingdom, Prime Minister Tony Blair may assume support from the House of Commons without necessarily putting the matter to a formal vote. In France's mixed system, President Jacques Chirac operates under Gaullist premises that military decisions belong to the presidential domaine reserve with little scrutiny from the Assemblee Nationale. In other countries, however, parliamentary control is considered a fundamental constraint on executive war-making powers. Germany's postwar constitution broke with the past by renouncing war, but participation in collective defense or collective security organizations is constitutionally permitted, subject to parliamentary approval. Notably, as required by a decision of the German Federal Constitutional Court at an earlier stage of the Yugoslav conflict, the Bundestag had to act affirmatively to approve German involvement in the Kosovo campaign. Polities in transition have looked to diverse constitutional models in developing their own approaches to executive-legislative relations with respect to war powers. The newest NATO members and NATO aspirants had their first tests of constitutional control of war powers in the post-cold war era with the Kosovo crisis. Hungary, a front-line state for this conflict, which borders on Yugoslavia and has close ties to ethnic Hungarians in the Vojvodina region of Serbia, submitted certain critical decisions for the affirmative authorization of the national parliament. Bulgaria and Romania, not yet NATO members but eager to prove themselves to be suitable partners, had parliamentary votes to approve opening their airspace to NATO planes. The remainder of this article focuses on comparisons between the Clinton Administration and its predecessors: Does President Clinton's approach to war powers and other foreign policy problems cohere with that of previous Presidents, or has the present administration forged a new approach in these domains? This general question also addresses the theme of Dawn Johnsen's paper: To what extent has the executive branch under Clinton declined to comply with congressional enactments regarding war powers on the basis of an executive position that the law in question is unconstitutional?

E.H. Norman, Canada and Japan's Postwar Constitution

T he creation of constitutional research commissions in both the upper and lower houses ofJapan's national Diet in 2000 marked a controlled resuscitation of both the historical enquiry and debate regarding the past and future ofJapan's national charter. Controversy regardingJapan's postwar constitution is nothing new. During the 1950s, the Liberal Democratic Party (LDP) established a similar constitutional review process. One of the aims of that initiative was to eliminate Article IX, the peace clause that theoretically forbids Japan to wage war or to maintain armed forces. Faced, however, with massive and growing popular resistance from a burgeoning peace movement in the 1950s, the LDP allowed this first attempt at constitutional revision to fade into oblivion. Much has changed in the forty years between the two inquiries but one constant impetus to revise the Constitution has been the historical recognition that Japan's constitution was initially drafted by the staff of General Douglas MacArthur, the Supreme Commander of the Allied Powers (SCAP). What is less well known is that E. Herbert Norman, a historian of Japan and Canadian diplomat, waged a protracted battle to take the constitutional drafting process away from both SCAP and Japan's ruling oligarchy in order to put it into the hands of the Japanese people themselves. Norman was thwarted in this idealistic endeavor by none other than General MacArthur. Despite SCAP's imperious style in constitution crafting, Norman in the end supportedJapan's new constitution partially because no alternatives were available but also because it enshrined some of the values which he thought reflected the historical aspirations of the Japanese people.

Correction: E.H. Norman, Canada and Japan's Postwar Constitution

Correction: E.H. Norman, Canada and Japan's Postwar Constitution

Prophets of Peace: Pacifism and Cultural Identity in Japan's New Religions

Wars in Persian Gulf and Yugoslavia have given new impetus to ongoing debate in Japan concerning its postwar constitution and related issues of national security and world order. Although often overlooked in this debate, Japanese religious groups--especially some of New Religions--have promoted peace as a major theme of their doctrine and activities, often explicitly supporting a pacifist position. This study, undertaken in wake of Persian Gulf War, looks at a representative group of New Religions and explores their concepts and practices of peace. Many of Japanese New Religions draw on a tradition that emphasizes individual moral cultivation and use of prewar terms to describe their mission. One expression, hakko ichiu (literally, the whole world under one roof) conveys ideal of world unity under Japanese direction, leading to establishment of peace. In this way it is a prime example of prewar idea of establishing peace through spread of Japanese civilization. The author cites evidence pointing to prevalence of a mistaken notion of implications of pacifist position, a situation that both reflects and contributes to confusion surrounding popular debates on pacifism in Japan. Prophets of Peace is an attempt to correct that misperception by providing a critical study of social ethic of Japanese New Religions--a topic that has been largely ignored in research on new religious movements worldwide. Professor Kisala draws on literature that presents their doctrine and surveys their believers to describe their approach to question of peace. The results of this fieldwork are placed within dual framework of Western peace studies and modern Japanese intellectual tradition, highlighting issues of pacifism and cultural approach to peace in Japan. In his analysis of these results, he offers some observations on role of religion in contemporary Japanese society and advocates a more positive engagement in debate on Japan's role in international security arrangements. By offering a representative sample of New Religion groups and focusing on their doctrines, Prophets of Peace provides a different perspective for those whose primary interest is Japanese New Religions. Although students and scholars of Japanese religion will be book's first audience, its accessibility and thematic approach also recommend it to readers with a broader interest in contemporary Japanese society, peace studies, and role of religious groups in modern society.

Redefine and practise our peace, our security, if they do theirs

I. Between the Two Summits: The Problem in a New Context WE ARE GATHERED HERE IN OKINAWA (JAPAN) TO DISCUSS PEOPLE'S SECURITY, justice, and and to develop action across Asia and beyond to attain them. We feel that we are meeting at the right time and in the right place. This is the right time, sandwiched between the two summits. The first is the South-North Korean summit in Pyongyang, in June 2000. This initiated a historic process of a whole people taking upon themselves the task of settling one of the most crucial and difficult post-World War II issues of East Asia -- peace, reconciliation, and autonomous national reunification of the divided Korea. The stated premise of the U.S. East Asia strategy -- the clear and present danger from the rogue of North Korea -- is collapsing and undermining the legitimacy of the heavy U.S. military presence in East Asia. This raises great hope for in our region. The second meeting is the G-8 summit of self-appointed world leaders who will come here in July and meet in Nago, the precise location where the United States, with the willing support of the Japanese government, is forcing a brand new military base on the Okinawa people. The late Japanese Prime Minister Obuchi, who provocatively chose Nago as the venue of the 2000 summit, declared that the Okinawa summit would send out a of peace to the rest of the world. President Clinton praised Obuchi's wisdom and welcomed this summit as the opportunity to demonstrate again the importance of the U.S.-Japan security alliance. Their message is clear: Bases equals Peace. The Okinawan people, however, are irrevocably against bases. Thus, Okinawa is the right place for this gathering. Okinawa has been, and continues to be, a major site of sustained popular protest against the massive U.S. military presence. Due to their devastating experience of the Battle of Okinawa in 1945, when over 160,000 civilians were killed, and in their ongoing struggle against U.S. bases, the people of Okinawa have developed an idea of and security that is clearly differentiated from the notion of as the product of military presence, and the notion of security as state security. Strategically, Okinawa, as the single largest overseas U.S. military base in the world, is called the lynchpin of U.S. military strategy in the Asia-Pacific region and beyond. It is where 75% of U.S. bases in the Japanese territory are concentrated, occupying about 20% of the best land of this small island. In the post-Cold War context, the role of Okinawa is being strengthened as the U.S.-Japan military alliance is redefined. Let me briefly sketch the current state of the U.S.-Japan military alliance. Despite the end of the Cold War, the United States has adopted a military doctrine for the East Asian-Pacific region that justifies continued U.S. military presence and parcels out for a heavier military role than even at the height of the Cold War. The landmark event in accomplishing this shift in Japan's role was the 1996 redefinition of the U.S.-Japan security alliance. This was followed by new U.S.-Japan Defense Cooperation Guidelines, adopted in 1997. This bilateral arrangement obliges to mobilize its public and private resources, personnel, facilities, services, and its military force to join American military operations to be conducted in surrounding Japan. The Guidelines define the concept of surrounding Japan not as geographical, but as situational. Although the surrounding certainly include Korea and the Taiwan Strait, they could also include any areas in the world. For the United States , keeping its bases in Okinawa is the key to this strategy. One alarming development is that the redefined U.S.-Japan alliance has provided the momentum for Japanese ruling groups to free the postwar Japanese state from its constitutional constraints. The postwar constitution has a pacifist clause that bans the military and renounces the state's right to belligerency. …

Germany's Constitution and participation in international peacekeeping operations

In this article, Torsten Stein, Professor of Constitutional, European and Public International Law and Director of the Institute of European Studies at the University of Saarland, Saarbrücken, traces the constitutional development that has enabled Germany to take part in a meaningful way in United Nations peacekeeping operations (PKO). As in Japan, Germany's post-war Constitution (Basic Law) was held to prohibit such participation. Germany's Federal Constitutional Court, however, has found an interpretation of the Constitution that - without amending the Constitution or any other pertinent legislation - allows a "German solution" which reconciles the putative post-war prohibitions with Germany's obligations as a member of the United Nations. Stein, who is also a Colonel in the German Air Force Reserve, warns that the "five conditions" contained in Japan's 1992 Peacekeeping Operations Law are unrealistic in view of present day PKO, but envisages an interpretation of the Japanese Constitution that might follow the German example.

The Birth of Japan's Postwar Constitution. By Koseki Shoichi edited and translated by Ray A. Moore. Boulder, Colo.: Westview Press, 1997. $55.00(cloth).

The Birth of Japan's Postwar Constitution. By Koseki Shoichi edited and translated by Ray A. Moore. Boulder, Colo.: Westview Press, 1997. $55.00(cloth).