white cover with orange obi


Rikken-Shugi to iu Kuwadate (The Project of Constitutionalism)


INOUE Tatsuo


448 pages, A5 format




June 03, 2019



Published by

University of Tokyo Press

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Rikken-Shugi to iu Kuwadate

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Part 1 of this book elucidates the principles of constitutionalism by tracing their roots in the philosophy of law while Part 2 discusses the practical implications of constitutionalism through an examination of issues related to Article 9 of the Japanese Constitution, regulation of the authority to impose criminal punishment, and judicial reform.
The greatest issue hindering the establishment of constitutionalism in post-war Japan is the failure to address contradictions between Article 9 of the Japanese Constitution and the existence of the Japanese Self-Defense Forces (SDF) and the Japan-US security treaty. These contradictions have been obscured by various spurious arguments that Japan’s SDF, despite being one of the best trained and equipped military organizations in the world, is not a military force. Such arguments have been forwarded by successive conservative administrations and coalition governments (Liberal Democratic Party and the Komeito) and, since the end of massive protests against the revision of the Japan-US Security Treaty in the 60s, even the gokenha (the constitution-protectionists) came to accept the SDF and Japan-US security arrangements within the framework of exclusively defense-oriented policy and the right-to-individual-self-defense. The argument that Article 9 restricts the use of military force is an utter falsehood. Rather, just because Article 9 of the Constitution explicitly prohibits Japan from maintaining a “military force”—or more specifically, according to the language of Article 9, “land, sea, and air forces, as well as other war potential”—and does not recognize the right of belligerency of the state, the Japanese Constitution does not or cannot contain provisions for controlling the organization and exercise of military forces as long as Article 9 exists, so that it does not have even the minimum military controlling norms related to civilian control, procedures for obtaining prior approval from the National Diet and a military justice system. As a result, Japan’s military force through the SDF and Japan-US security arrangements is expanding outside of the constitutional framework.
The persistent lack of constitutional regulation of the most dangerous form of state violence—i.e., exercise of military force—stems from deficient and distorted understanding of constitutionalism as a framework for embodying and developing the rule of law in the Constitution, not only among the general public and politicians, but, also, among jurist, legal professionals, and other intellectuals. The goal of my book is to correct this distorted understanding of constitutionalism and to correct the fatal flaw in Japan’s postwar constitutionalism.
The theoretical significance and uniqueness of this book lies in the following two points. First, it reconstructs theories of law’s nature through an investigation into the basis of the “legitimacy” of law differentiated from its “rightness.” Second, the book redefines the principles of the rule of law that serve as the basis for constitutionalism as the principles guaranteeing the “legitimacy” of law. The fundamental reason for taking these theoretical approaches is this. Since it is not possible to resolve the moral conflicts regarding what is “the right law,” we cannot avoid facing the “circumstances of politics” wherein political decisions must be made that constrain even those who are opposed. The main purpose of the rule of law is to establish “rules of fair political competition” that make it possible for even those opposed to a political decision to respect it as being “wrong but legitimate.” The essence of constitutionalism is the embodiment of the rule of law in a constitution in order to regulate power struggles—including not only legislative strife but also constitutional strife regarding the rightness of the current specific constitutional provisions. This book attempts to reorganize not only constitutionalism but also legal philosophy on the basis of my own theory of law’s nature that aims to transcend the dichotomy between legal positivism and the natural law doctrines by redefining law as “the project to pursue justice.”

(Written by INOUE Tatsuo, Professor Emeritus, Graduate Schools for Law and Politics / 2022)

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