Western and japanese constitutional thought in the shaping of the role of the japanese emperor in the 1889 and 1946 constitutions
| Autor | Elisa Bertolini |
| Cargo | Bocconi University |
| Páginas | 641-668 |
WESTERN AND JAPANESE CONSTITUTIONAL THOUGHT
IN THE SHAPING OF THE ROLE OF THE JAPANESE
EMPEROR IN THE 1889 AND 1946 CONSTITUTIONS°
Elisa Bertolini
Bocconi University
CONTENT: I. PREMISE. - II. THE EMPEROR: SYMBOL OR RULER? - III. THE
MEIJI ERA: A CONSTITUTIONAL FRAMEWORK FOR THE EMPEROR. - 3.1. Kido
Koin’s constitutional draft. - 3.2. The Genrōin draft. - 3.3. The Oligarchs’
memoranda. - 3.4. Itō meets the Germans. - 3.5. The Meiji Constitution. - 3.6.
Interpreting the Meiji Constitution and the Tennōsei Fashizumu. - IV. FROM
HEAVEN TO EARTH: A NEW CONSTITUTION FOR A NEW EMPEROR. - V.
CONCLUSION: AN EMPEROR FOR THE TWENTY-FIRST CENTURY.
Abstract: The article deals with the combined influence of the Japanese and the
Western traditions and legal thoughts in the shaping of the imperial institution in
the two Japanese Constitutions, the 1889 Meiji Constitution and the 1946
“American” Constitution. The Meiji Constitution, modelled after the 1850
Constitution of Prussia, enshrines the sacred and eternal characters of the
imperial system, within a Western framework; while the 1946 Constitution
completely alters the imperial system, modifying the sovereignty principle and
assigning a mere symbolic role to the Emperor.
Keywords: Sovereignty principle, imperial system, constitutional amendment,
legal transplant
I. PREMISE
Japan is a country with a thousand-year old tradition and whose monarchy
is considered almost eternal, being unbroken since 660 BC. However, the
country’s constitutional system is quite young with respect to the Western ones.
Japan now belongs to the category of democratic-pluralistic State within the
Western legal tradition, but that is the result of a quick and astonishing twenty-
year period of modernisation that took place at the end of the nineteenth century,
the so-called “Westernisation”, and of the seven-year occupation period in the
aftermath of the Second World War.
These two “encounters” with Western counterparts marked two pivotal
moments in the history of the country. They were both moments of deep political
crisis, despite of a different nature, and both far from voluntary.
The twenty-first century “Westernisation” – the first encounter – followed the
contact with these foreign nations abruptly revealed the gap between them and
Japan, whose policy of centuries of isolation had made the country inadequate to
° Names appearing in the paper (Japanese authors in footnotes too) are given in the usual
Japanese order, that is with the surname first.
Historia Constitucional (ISSN 1576-472)
n.19, 2018, págs. 641-668, http://www.historiaconstitucional.com
have an equal confront at international level. While Western countries had
evolved their institutional, social and economic structure, also thank to the
reciprocate contacts they had, Japan voluntarily kept out from any contact
whatsoever, thus perpetuating a feudal institutional, social and economic model.
Therefore, Japan was imposed the unequal treaties by the major Western
countries and it was the feeling of being at the mercy of foreign countries that
that triggered the modernisation. The Western powers became at the same time
foes to fight (in order to get the unequal treaties renegotiated) and a model to look
upon.
Japan opened to Western knowledge in every possible area, thus undergoing
a massive and successful transformation, without betraying her core cultural and
traditional identity.
The second encounter was much more traumatic, since it resulted from the
atomic disaster of the Second World War. Therefore, the political and economic
situation the country was in was substantially different with respect to the one of
eighty-ninety years earlier and this time the foreign influence affected the real
core of the Japanese institutions.
While the nineteenth century legal transplant was guided by the Japanese
government and performed in accordance to the Japanese cultural identity, the
one of the twentieth century was coerced, with a very narrow room for the
Japanese government to act, and far less respectful of the country cultural
tradition.
Despite this significant difference of the two transplants, the Japanese
experience has undoubtedly been a success, not just when considering the
adoption of foreign institutions and legal concepts, but also for the capability of
the Japanese society to “Japanise” this Western wave as much as she could. This
is more difficult if one considers the substantial cultural difference forming the
basis of Western and Japanese societies. Surely, this does not close the debate,
which is still ongoing on the effective extent of acceptance of these foreign
concepts, which according to many scholars is still very low – the preferences for
extra-judicial conflict resolution1 and for collective rights over individual rights2
continue to be the most used arguments – but none can deny that there has been
1 There is abundance of literature on the topic. See, ex multis, Kawashima Takeyoshi, “Dispute
Resolution in Contemporary Japan”, in Arthur T. von Mehren (ed.), Law in Japan: The Legal Order
in a Changing Society, Harvard University Press, Cam bridge, 1963 , pp. 41-72; M ichael K. Young,
“Judicial Review of Administrative Guidance: Governmentally Encouraged Consensual Dispute
Resolution in Japan”, Columbia Law Review, vol. 84, n° 4, 1984, pp. 923-983; J.W.S. Davis,
Dispute Resolution in Japan, Kluwer Law International, The Hague, 1996.
2 See, in particular Eric A. Feldman, The Ritual of Rights in Japan, Cambridge University Press,
Cambridge, 2000 and John M. Maki, “The Constitution of Japan: Pacifism, Popular Sovereignty, and
Fundamental Human Rights”, in Percy R. Luney Jr. and Takahashi Kazuyuki (eds.), Japanese
Constitutional Law, University of Tōkyō Press, Tōkyō, 1993, pp. 39-56. For further readings, see
Ardath W. Burks, “Japan: The Bellwether of East Asian Human Rights?”, in James C. Hsiung (ed.),
Human Rights in East Asia: A Cultural Perspective, Paragon House Publishers , New York, 1985, pp.
31-53; Christina M. Cerna, “Universality of Human Rights and Cultural Diversity: Implementation of
Human Rights in Different Socio-Cultural Context”, Human Rights Quarterly, vol. 16, n° 4 , 1994, pp.
740-752 and Michael C. Davis, “Constitutionalism and Political Culture; the debate ov er Human
Rights and Asian Values”, Harvard Human Rights Journal, vol. 11, 1998, pp. 109-147.
Elisa Bertolini
642
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