Kindai-Rikken shugi to Tasha (Modern Constitutionalism and Others)

This book is an attempt to criticize the ideology of a concept called “modern constitutionalism.” Here, modern constitutionalism refers to a concept that constitutes, and simultaneously constrains, state power. At the root of this book is the awareness of the issue that this modern constitutionalism has not sufficiently worked in the Japanese governance system. In fact, the separation of power and the guarantee of rights are said to be at the core of constitutionalism, but the current situation is that neither of them has progressed beyond their principle. The aim of this book is to investigate where the cause lies.

In this context, this book focuses on the concept of “others.” Here, “others” refer to something that can never be subsumed in the concept of the self. It is equivalent to what was once called the “God.” In modern times, however, God recedes in the background and instead the self-centric era begins. Modern constitutionalism can also be said to be the result of applying this self-centeredness to the world of law. There, it is explained that in an attempt to achieve self-preservation, people used reason to create the public sphere.

However, this book argues that the driving force behind constitutionalism is rather in the relationship with “others.” This was asserted by a constitutional scholar in the United States, whose name was Robert Cover. In his paper entitled “Nomos and Narrative” (1983), he asserted a thesis that the law was Nomos, and that it was spun by narratives. Here, when Cover says that law is a “normative universe,” it is a strong antithesis to the traditional view of the law as a tool of social control. Instead of the law controlling us, we live in it. At the same time, Cover states that what we need to live is a “narrative.” This is because the meaning of norms is important to human beings living in the normative world, and it is the narratives that provide this meaning. Cover claims that every law wants to be filled with meaning by narratives.

Inspired by Cover's arguments in this manner, this book seeks to portray the “lively” form of modern constitutionalism, with the concepts of Nomos and narratives closely related to “others.” This is far from the traditional static view of the Constitution, and as such, there is no doubt that those more familiar with the Constitution will be perplexed. But as you read on, you will find that the Constitution is also supported by the synergies created by "relation" that is constitutive of humanity.

In that sense, while this book may seem to depict a new form of constitution, it simply describes a matter of course. Nevertheless, the reason why this sounds new is because this forgone fact has been forgotten in the study of Constitutional Law. This book discusses another aspect of the Constitution that is revealed by inviting “others.”

 

(Written by: ETO Shohei / June 16, 2020)