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What's Liberalism? What's the Philosophy of Law?

Contributed by Tatsuo Inoue
Graduate Schools for Law and Politics
http://www.j.u-tokyo.ac.jp/about/kyoin/profile/inoue_t.html (Japanese language only)
There is a professor in the University of Tokyo who is called an "indignant philosopher of law." He believes in authentic liberalism, of which the basic principle is justice, and his indignation, which comes from this authentic liberalism, is also directed towards the debate on constitutional reform that has escalated under the current political administration in Japan. The professor argues that to overcome the deceptions perpetrated by people on both sides of the issue who use the Constitution as a tool for political one-upmanship, Article 9 should be removed from the Constitution. To describe this professor, "fair-minded" may be a more proper word than "indignant."

I specialize in philosophy of law. I am also a philosopher of law who advocates liberalism, but perhaps the latter statement may not make much sense to the average person. It is believed that Lliberalism tries to maximize individual freedoms while law works to restrict them. The average person might say, "Isn't it the duty of philosophers of law to justify law? Isn't the 'liberal philosophy of law of liberalism' an oxymoron?"
These questions, however, come from a misunderstanding. First, the fundamental principle of liberalism is not freedom, but justice. Second, the reason law exists is to provide a mutually fair framework in which individuals equally respect the freedom of others, as well as of themselves, by placing restrictions on the power of the authority through rule of law, instead of restricting personal freedom. Exploring the principles that constitute the evaluative basis of law and the institutional frameworks that implement them is what I believe the task of the philosophy of law to be. Justice is not an ideology that we can use to justify our own interests and power, but rather the principle that we are obliged to respect as a mutually fair framework within which we can coexist with those whose interests or outlooks on life are different from ours. Law is a  project to achieve this kind of justice and is fundamentally related to the philosophy of liberalism, which is based on justice, a principle allowing individuals who have different sets of values to share a mutually fair coexistence. Various "conceptions of justice," such as utilitarianism, libertarianism and egalitarianism, compete and conflict in the field of justice. As the common principle constraining these conceptions, however, there exists "the concept of justice." This concept requires you to engage in only "discrimination that can be universalized" between yourself and others. What is implied is in this logic is the demand for "reversibility." That is, if you take an action affecting or request something of others, you must put yourself in their shoes so that you can consider—if they were to engage in a similar exercise of self-scrutiny—whether this action or request can be justified from their perspective based on an undeniable rationale.
An 1849 illustration by Danish painter Vilhelm Pedersen which depicts a scene from Hans Christian Andersen's The Emperor's New Clothes (Kejserens nye kl?der). This famous story is known in Japan as Hadaka no Ousama (The Naked King).
I have been involved in a wide variety of practical and political disputes arguing from this standpoint. The stance of mine that has received the most attention is the one on the controversy over Article 9 of Japan's Constitution. I have criticized the falsehoods promulgated by both those for constitutional revision (including the Abe administration) and against it. Particularly, I have condemned the supporters of the current Constitution because they say they want to protect the Constitution while they are actually betraying it. For example, supporters with a fundamentalist interpretation of the Constitution do not deserve to be called Constitution supporters because although they declare the existence of the Japan Self-Defense Forces (JSDF) themselves to be unconstitutional, they politically tolerate the defense-only policy of the JSDF and thus desire to maintain the status quo. Meanwhile, supporters with a revisionist interpretation who consider the JSDF to be constitutional as long as they comply with the defense-only policy are obsessed with acrobatically distorting the meaning of Article 9 of the Constitution. They allege that the JSDF, which are one of the largest militaries in the world, are not armed forces, and that Japan engaging in a defensive war in cooperation with the United States military, the strongest armed forces in the world, would not constitute an act of belligerency. I do not think that they have the right to criticize the Abe administration for its illegitimate revision of the Constitution by interpretive maneuver.
Justice requires fairness towards others. With regards to political conflict, this means fairness towards political enemies. The Constitution is supposed to be a set of rules for working through political disputes fairly. However, both the Abe administration and the supporters of the current Constitution are trying to use the Constitution solely as a "tool for political one-upmanship" to impose their stances on national security issues upon others. In order to end this kind of deception, I have proposed removing Article 9. For details, please refer to my latest book titled Even if You do not Like Liberals, Please do not Dislike Liberalism: Tatsuo Inoue's Introduction to the Philosophy of Law (Liberal no Koto wa Kirai demo Liberalism wa Kirai ni Naranaide Kudasai: Inoue Tatsuo no Hou-tetsugaku Nyumon). At any rate, what is required now is for the Japanese people themselves to see through the deceptions of the Abe administration and the intellectuals who support the current Constitution, thoroughly discuss the future direction of the Constitution and national security issues amongst themselves, and cast their judgement by referendum so that they themselves can exercise their own sovereign power to revise the Constitution. In order to wake up the people of Japan to the lies of politicians, bureaucrats and intellectual elites, and more than anything, to their self-deceit, I am now playing the role of the girl in The Emperor's New Clothes who shouts, "But he hasn't got anything on!"

* This article is a translation of an article that was originally printed in Tansei 32 (Japanese language only).
  • A book authored by Professor Inoue
    Even if You do not Like Liberals, Please do not Dislike Liberalism: Tatsuo Inoue's Introduction to the Philosophy of Law
    (Liberal no Koto wa Kirai demo Liberalism wa Kirai ni Naranaide Kudasai: Inoue Tatsuo no Hou-tetsugaku Nyumon)
    (Mainichi Shimbun Publishing Inc., June 2015; 1,500 yen plus tax).

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