Constitutional Law Research Series Kenpo-Saibanken no Dotai (Dynamics of Constitutional Review, 2nd Edition)

This book is my first, and thus far my only, published monograph based chiefly on “Research Associate thesis,” submitted in March 2000 to the Graduate Schools for Law and Politics, The University of Tokyo. With revisions and additions, this thesis was contributed as a series of articles in The Journal of the Association of Political and Social Sciences, (Kokka Gakkai Zasshi). First published in 2005, the current edition (2020) is an augmented version with the addition of three new sections.
 
This book presents my own unique depiction of the constitutional court system of Germany, based on what I had struggled the system itself, important court cases, and related academic theories. This book emphasizes first that the traditions of the Staatsgerichtsbarkeit, which heard cases including ministerial impeachment and constitutional disputes during the era of the constitutional monarchy, are essential to an understanding of the constitutional court system in Germany. When speaking of a constitutional review, one usually imagines a review by a court to determine the constitutionality of a law that limits human rights. In Germany, the Bundesverfassungsgericht (Federal Constitutional Court) has a jurisdiction on resolving conflicts between state organs regarding their constitutional authorities. I emphasized that this jurisdiction-“Verfassungsorganstreit”- is crucial in understanding the processes involved in establishing the German constitutional court system, and that, at the very least, scholars in other countries than Germany should be aware of this fact in consideration of comparative constitutional law.
 
The other main point of this book is, I think, its clarification of the contents and contexts of discussions in Germany regarding how the constitutional court review the constitutionality of laws. There has been considerable accumulation in the Japanese academic world on this type of research regarding the United States, the “mother country” of constitutional review; nevertheless, experts on the German constitutional law seemed to have at most shared a tacit understanding of these findings. This book demonstrates that social reform legislation, which is promoted by the government, chiefly the Sozialdemokratische Partei Deutschlands (the SPD, the Social Democratic Party of Germany), is frequently held up or blocked by the Federal Constitutional Court. Against this background, discussions with a problem setting that attempts to demarcate the limits of constitutional court review in Germany have been developed, which is linked with revisions of the separation of powers.
 
Introducing this book in this way shows me what a bold attempt my original thesis was in its aim to cover a major field of study. I sense my youth and inexperience, for example, when I remark on how I had made an insufficient survey of related documents. In the current climate, where a specific research plan is carefully created and followed, I do marvel that my research associate thesis of that earlier period was accepted by my professors and take this opportunity to thank them for their generosities. I still sometimes recall with a kind of terror how, during my thesis presentation, sharp and severe criticisms were made by my elders in constitutional research and by the professors of German law. In addition to the revisions I made when I submitted the journal series, I was able to make major revisions for the publication of the first version of this book, giving me a sense of satisfaction and accomplishment for the first time.
 
Certainly, that satisfaction was well deserved. Thereafter, however, my research interests have expanded to cover constitutional law in general as well as studies of information law. In this way, I had completely neglected to deepen my knowledge of the contents of the book and to do follow-up work and development, including investigations of many more pertinent documents. Thankfully, however, I was able to reread and reconsider this book when the publisher asked for a revised edition. Despite its “rawness,” I felt anew how this book crystallized my formation as a constitutional law researcher. In this revised version, I have added three essays on constitutional review in Japan that I feel demonstrate my maturity and ripened awareness of this essential domain.
 

(Written by SHISHIDO George, Professor, Graduate Schools for Law and Politics / 2021)