＜概要/Course Content Summary＞
This course will survey and analyze the Constitution of Japan (the “Constitution”) and its application to various political, economic, social and other problems and conflicts that occur in Japan. It will undertake this task from historical and comparative constitutional perspectives. It will mainly focus on the heavy American influence on the drafting and subsequent interpretation of the Constitution, but also in comparison with constitutions of other countries.
The Constitution was promulgated in 1946 and went into effect in 1947. It has been the fundamental law of Japan in its original form without any formal revisions to this day. It is one of the two modern constitutions of Japan in writing. The other, the Constitution of the Empire of Japan (the "Meiji Constitution"), was promulgated in 1889, went into effect in 1890, and was in force until 1947. The Constitution was enacted in accordance with the procedures for the revision of the Meiji Constitution, but it is almost entirely a new and separate constitution in reality.
The Constitution has its origin in Japan's constitutional history and traditions as well as many provisions of the German, Austrian, French, and English constitutions. Because the Constitution was drafted and enacted shortly after the end of World War II during the occupation of Japan by the allied powers headed by General Douglas MacArthur of the United States Army, however, it received particularly heavy American influence. In fact, the first draft of the Constitution was prepared by several American members of the General Headquarters of the Allied Powers ("GHQ") in charge of the occupation and reform of Japan ("GHQ Draft". Accordingly, American influence on the making of the Constitution relates not only to the text of the United States Constitution and its interpretations, but also to the political, economic, social, and moral ideas and trends at the time in the United States as well as to the individual American drafters' political beliefs, ideologies, and general views on constitutions. It was also affected by the post-WWII international relations in East Asia, mainly the "Cold War" between the United States and the Soviet Union.
The Constitution has continued to receive heavy inputs and influence from American constitutional theories and cases because many of the Japanese government lawyers and constitutional scholars studied them in detail in the United States in order to interpret and implement the new Constitution. It is important to note, however, that influence of the German and other European jurisprudence that had long been made part of the Japanese legal education and scholarship since the Meiji era has continued to have a large impact on the way in which the Constitution is interpreted by Japanese courts and scholars.
With the foregoing background of the Constitution's origin and subsequent history in mind, this course will survey and analyze the basic structure of the Constitution as a whole as well as its major provisions. Specifically, it will focus on (1) the initial rounds of drafting the Constitution in February and March 1946 that resulted in the official government draft of the Constitution, (2) subsequent debates, changes and votes on the official government draft of the Constitution from April through October 1946 by the Privy Council and the two houses of the Diet, (3) those provisions of the Constitution that received particularly strong influence and input from the GHQ Draft, (4) those provisions of the Constitution that received less American influence and reflect more traditional Japanese and European approaches to constitutional law in general, and (5) current constitutional debates among the Japanese politicians, scholars and general public about certain provisions of the Constitution in view of enormous changes in the Japanese society as well as international security and political environment surrounding Japan that have taken place in the past 70 years.
Please note the lecturer will teach a separate course entitled "American Constitution from Comparative Constitutional Perspectives" in the fall semester as a companion to this course. Although the lecture will be conducted mainly in Japanese, most, if not all, of the reading materials in that course will be in English. Anyone who is registering in this course in the spring semester who possesses limited proficiency in Japanese is welcome and encouraged to also take the other comparative constitutional course in the fall semester. If anyone does, the lecturer is willing to teach the other course partly in English.
This course will be conducted mainly in a lecture form. Details will be discussed in the first class.
＜到達目標/Goals,Aims＞
Students taking this course are expected to acquire a basic understanding of the history and substance of the Constitution. They should be able to form a frame of reference through which to further deepen their understanding of the Constitution and constitutions of other countries in general from historical and comparative constitutional perspectives.
＜授業計画/Schedule＞
（実施回/
Week）
|
（内容/
Contents）
|
（授業時間外の学習/
Assignments）
|
|
（実施回/ Week）
１
|
（内容/ Contents）
A brief orientation: the purpose and teaching method of the course, evaluation method and standards, etc. A brief introduction to the historical patterns of adoption of foreign legal systems in Japan since roughly 600 AD.
|
（授業時間外の学習/ Assignments）
Students are required to have read assigned reading materials in advance of each session of the course. Reading materials, including the Constitution, the Meiji Constitution, various drafts of the Constitution, U.S. and Japanese government documents regarding the Constitution, opinions of the Supreme Court and lower courts of Japan in notable constitutional cases, and various academic articles on the Constitution, will be designated and/or distributed in advance as well.
|
|
（実施回/ Week）
２
|
（内容/ Contents）
A very short constitutional and legal history of Japan from 1868 through 1945. Adoption of the western legal system, enactment of the Meiji Constitution and subsequent interpretations of and substantive changes without formal revisions to the Meiji Constitution.
|
（授業時間外の学習/ Assignments）
|
|
（実施回/ Week）
３
|
（内容/ Contents）
Chronology of the making of the Constitution: 1945 through 1947 (1) : Post-WWII United States policy toward Japan, the Potsdam Declaration and the surrender of Japan, the occupation and reform of Japan, changing international political environment and U.S.-Soviet relations, an urgent need to enact a new Japanese constitution in the context of the U.S. policy towards East Asia.
|
（授業時間外の学習/ Assignments）
|
|
（実施回/ Week）
４
|
（内容/ Contents）
Chronology of the making of the Constitution: 1945 through 1947 (2) : Initial efforts by the Japanese government and private groups to propose revisions to the Meiji Constitution, preparation of the GHQ Draft, joint efforts by the Japanese government lawyers and GHQ staff to prepare the official government draft of the Constitution, debates, revisions and votes on the official government draft of the Constitution by the Privy Council and two houses of the Japanese Diet, promulgation of the Constitution.
|
（授業時間外の学習/ Assignments）
|
|
（実施回/ Week）
５
|
（内容/ Contents）
Articles 1 through 8 (Chapter I, The Emperor): Their origin and subsequent interpretation, history of the roles and missions of the Emperor in the Japanese society and the perceived need to keep him in throne in 1946. Comparison with constitutional provisions of the United Kingdom, Spain and other countries regarding the position, status and roles of the monarch.
|
（授業時間外の学習/ Assignments）
|
|
（実施回/ Week）
６
|
（内容/ Contents）
Article 9 (Chapter II, Renunciation of War) (1) : Its origin and background, provisions of the Meiji Constitution regarding war power, need to convince the international society of the birth of a non-aggressive and democratic Japan, influence of the Kellogg-Briand Pact and the new United Nations Charter.
|
（授業時間外の学習/ Assignments）
|
|
（実施回/ Week）
７
|
（内容/ Contents）
Article 9 (2) : Changes in interpretations of Article 9 by the government lawyers (mainly by the members of the Cabinet Legal Office) and the courts, debates on the constitutionality of the Self Defense Force and the Japan-U.S. security treaty.
|
（授業時間外の学習/ Assignments）
|
|
（実施回/ Week）
８
|
（内容/ Contents）
Current debates on the constitutionality of the new security legislation of 2015 and expansion of the roles and missions of the Self Defense Force, particularly with respect to Japan's right to exercise its collective self defense right.
|
（授業時間外の学習/ Assignments）
|
|
（実施回/ Week）
９
|
（内容/ Contents）
Article 9 (3) : Comparison of Article 9 with the constitutional provisions of the United States, Germany and other countries regarding the war and use of force.
|
（授業時間外の学習/ Assignments）
|
|
（実施回/ Week）
１０
|
（内容/ Contents）
Articles 10 - 40 (Chapter III, Rights and Duties of the People) and Article 97 (1) : Their origin, background and drafting process. Reflections in some of the provisions in Chapter III of the Constitution of the more liberal and rights-oriented constitutionalism developed prior to and during the New Deal era in the United States.
|
（授業時間外の学習/ Assignments）
|
|
（実施回/ Week）
１１
|
（内容/ Contents）
Articles 10 - 40, 97 (2) : individual provisions and their interpretations by the government lawyers, constitutional scholars and the courts. Comparison with provisions of the constitutions of the United States, Germany and other countries and constitutional cases of these countries regarding rights and duties of the people.
|
（授業時間外の学習/ Assignments）
|
|
（実施回/ Week）
１２
|
（内容/ Contents）
Articles 76 - 82 (Chapter VI, Judiciary) : Comparison of the judiciary under the Meiji Constitution and the Constitution, provisions expanding the roles and missions of the Japanese judiciary as a more independent branch of the government, as well as provisions limiting the power of the judiciary to prevent the judicial tyranny. Comparison with provisions of the constitutions of other countries regarding the judiciary.
|
（授業時間外の学習/ Assignments）
|
|
（実施回/ Week）
１３
|
（内容/ Contents）
Articles 81 and 98 : Judicial review in Japan, its origin and background, theories and case laws, restrained exercise by the Japanese judiciary to exercise its judicial review power. Comparison with other countries as to who interprets their constitutions and how.
|
（授業時間外の学習/ Assignments）
|
|
（実施回/ Week）
１４
|
（内容/ Contents）
Articles 41 - 64 (Chapter IV, The Diet), Articles 65 - 75 (Chapter V, The Cabinet), Articles 83 - 91 (Chapter VII, Finance), Articles 92 - 95 (Chapter VIII, Local Self-Government) : Structure of the government of Japan as designed by the Constitution, changes in election systems without formal constitutional revisions, gradual changes in the balance of power between the Cabinet and the Diet, comparison with provisions of the constitutions as well as case laws of other countries regarding the structure of their governments.
|
（授業時間外の学習/ Assignments）
|
|
（実施回/ Week）
１５
|
（内容/ Contents）
Article 96 (Chapter IX, Amendments) : Its origin and background, history of proposed and failed constitutional revisions, strong opposition to the constitutional revisions centering around the Article 9 issues, examples of significant and material changes to the interpretation of the Constitution without following the formal Article 96 procedures, current debates and newest proposed revisions to the Constitution. Comparison with provisions of the constitutions of other countries regarding constitutional revisions as well as their non-textual constitutional changes.
|
（授業時間外の学習/ Assignments）
|
The foregoing schedule is subject to change as necessary.
＜成績評価基準/Evaluation Criteria＞
|
平常点(出席，クラス参加，グループ作業の成果等)
|
25%
|
Attendance in class and preparation for and participation in class discussions.
|
|
期末レポート試験・論文
|
50%
|
A term paper.
|
|
クラスで発表など
|
25%
|
Presentation in class on discrete subject matters to be assigned to each student.
|
Details of the evaluation method and weights of each element will be explained in the first session of this course.
＜テキスト/Textbook＞
This course will not require participating students to obtain and read any particular text book. Instead, most of the reading materials will be either designated or distributed in advance.
＜参考文献/Reference Book＞
＜参照ＵＲＬ/URL＞
＜備考/Remarks＞
This course will be conducted in English. Accordingly, those students who wish to register in this course are required to have some ability to comprehend and follow the class discussions in English. However, those who are not entirely confident in their proficiency in English are welcome and encouraged to register in this course so as to improve their oral, writing and analytical skills in English. In addition, almost all the reading materials for this course will be in English.
|
