- From Imperial Myth to Democracy: Japan's Two Constitutions, 1889-2002
With the help of American "collaboration," Japan adopted a new constitution immediately after World War II1 and subsequently transformed itself from an expansionist empire into an affluent, peace-loving democracy. Japan's [End Page 189] astonishing postwar trajectory sounds like a success story for both Japan and the United States, suggesting that the Japanese constitutional experience vis-à-vis the United States might serve as a model in endeavors to transform other militaristic states. Yet having borrowed almost all of our constitutional devices from foreign countries, the Japanese people can solemnly declare that we are nonetheless a little nervous about whether our constitutional system really measures up to the standards of Western constitutional democracies.
With a sober, scholarly touch, Lawrence W. Beer and John M. Maki expose (if unintentionally) several glaring tensions in the structure of the Constitution of Japan, affording insight into the dramatic modern history of Japan's constitutional system. More generally, Beer and Maki's From Imperial Myth to Democracy comprises an important inquiry into the development of Japan's constitutional system. Both scholarly and general readers will find the volume valuable due to its impartial viewpoint, highly readable style, and diverse appended materials.
One such constitutional tension, to which Beer and Maki refer in their discussion of the social advancement of Japanese women after World War II, relates to the Imperial Household Law (Kōshitsu Tenpan), which restricts the imperial throne to male offspring of the imperial family (p. 162). As the authors indicate, numerous constitutional scholars have argued that this law violates the equal protection clause (Article 14) of the Constitution of Japan. (Interestingly, numerous conservative politicians, in their eagerness to preserve the imperial house, share this view today.) Yet there is an air of contradiction, or even hypocrisy, surrounding the argument that the institution of the imperial house, a symbol of feudalistic prewar Japan, must conform to an ideal of equality among human beings.
As Jean-Jacques Rousseau and later Karl Marx observed,2 the modern state destroys the feudal systems it succeeds by concentrating political power in a central government; through this process, legal distinctions between social classes are abolished and the modern citizenship constitutionally endowed with equal rights emerges. The Constitution of Japan [End Page 190] adopted after World War II almost fully reflected this process of modern state-building with its endowment of equal rights for citizens. Yet the constitution also provides for the maintenance of a small enclave from Japan's preceding feudal society, namely, the imperial house: the constitution both endows members of the imperial family with special privileges and deprives them of basic liberties it guarantees to ordinary citizens.
Opinions may vary on the merits of this constitutional framework, but insofar as the constitution itself provides for the maintenance of this feudal enclave, and moreover dictates that the principle of equal rights stops at the gates of the Imperial Palace, it makes little sense to argue that the Imperial Household Law, with its male-only restriction on the right of imperial succession, is unconstitutional because it violates the equal protection clause. Yet given the successive births of female offspring to the imperial family in recent years, it is no mystery-as Beer and Maki suggest-that disappointed conservative politicians have embraced this far-fetched application of the equal protection clause.
An even more glaring constitutional tension is evident in Beer and Maki's discussion of Japan's constitutional pacifism (pp. 113-21). Article 9 of the Constitution of Japan provides for a pacifist state as follows:
Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.
In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be...