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Introduction: Perspectives On The Japanese Constitution After Twenty Years, Dan Fenno Henderson
Introduction: Perspectives On The Japanese Constitution After Twenty Years, Dan Fenno Henderson
Washington Law Review
The articles in this symposium are concerned with several major problems encountered en route from the promulgation to present social realization of the new style of Japanese constitutionalism. We have taken this opportunity to reflect after twenty years upon the problems of structure, political milieu, and continuity with the past. To some, continuity with the Meiji Constitution (1889-1947) might seem farfetched until we remember that it had several characteristics in common with the new Constitution: both followed foreign models (German and Anglo-American); both were far in advance of the social realities which they sought to transform; both were thus a …
The Japanese Constitutional Style, John M. Maki
The Japanese Constitutional Style, John M. Maki
Washington Law Review
This examination of Japan's constitutional style is based on the manner in which the following factors have contributed to its development or have become elements of it: past constitutional history, the broad reaction against militarism and authoritarianism, basic constitutional principles, the renunciation of war, the electoral system, the structure of government, the relationship between the government and the people, education and the mass media, the intellectuals, changing social relations, popular controversy and the issue of revision. The conclusion will be that the 1947 Constitution has been firmly woven into the general institutional framework of Japanese society and will endure. Even …
Twenty Years Of Revisionism, H. Fukui
Twenty Years Of Revisionism, H. Fukui
Washington Law Review
It would seem most natural that the 1947 Constitution of Japan should have been the target of strong revisionist pressure in the years following its promulgation, considering its contents and the special circumstances of its making. However, looking back upon the developments in this revisionist movement, one is struck by the degree of ambivalence and confusion in the attitudes of both the proponents. and opponents of revision and by the apparent failure of the former to effect revision. It is my view that these two impressions are very intimately interrelated and that an understanding of this relationship is necessary if …
Pollitical Questions And Judicial Review: A Comparison, Kisaburo Yokota
Pollitical Questions And Judicial Review: A Comparison, Kisaburo Yokota
Washington Law Review
Although the power of judicial review is granted in unmistakable terms, Japanese courts have proceeded with great caution and discretion in their exercise of the power. One aspect of the Japanese courts' caution is illustrated by its use of the political question doctrine. Under this doctrine the judicial branch recognizes the validity of determinations of the political branches and does not review them to see whether they conform to the Constitution. The rationale is that the Constitution itself places some questions solely under the competence of the political branches of the government.
Protection Of Property Rights And Due Process Of Law In The Japanese Constitution, Nobushige Ukai, Nathaniel L. Nathanson
Protection Of Property Rights And Due Process Of Law In The Japanese Constitution, Nobushige Ukai, Nathaniel L. Nathanson
Washington Law Review
Some writers find a reflection of the due process clauses of the fifth and fourteenth amendments of the United States Constitution in Article 31 of the 1946 Japanese Constitution. Article 31 provides: "No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law." Obviously there are disparities as well as similarities between this article and the American due process clauses. Since the Japanese Constitution was framed under the direction of the Supreme Command Allied Powers (SCAP), during the allied occupation, the similarities are not surprising. Many of …
The "Right Of Silence" In Japanese Law, B. J. George, Jr.
The "Right Of Silence" In Japanese Law, B. J. George, Jr.
Washington Law Review
The concept of a right of silence, particularly in the case of an accused person, was totally unknown in traditional Japanese law. Tokugawa procedure made no clear-cut distinction between civil and criminal or judicial and administrative proceedings; those embroiled in disputes were expected, indeed required, to make full revelation of everything which bore on the propriety of their activity. In what today would be a criminal proceeding, the defendant was expected to respond to questioning; and he could be tortured until he made the requisite statement. During the first decade or two of the Meiji period (1868-1912) some changes were …
Appendix: Opinion On Some Constitutional Problems—The Rule Of Law, Kenzo Takayanagi
Appendix: Opinion On Some Constitutional Problems—The Rule Of Law, Kenzo Takayanagi
Washington Law Review
Translator's Note: On July 19, 1963, at the 114th plenary session of the Commission on the Constitution, the late Professor Kenzo Takayanagi, its chairman, submitted a long opinion on constitutional problems. It was published as a 76-page appendix to the minutes of that session. The opinion was organized into nine sections: General Problems (an evaluation of the process of enactment, constitutional revision, constitutional interpretation, and the written style of the Constitution totalling 8 pages); The Emperor (7 pages); The Renunciation of War (9 pages); The Rule of Law (24 pages); The Parliamentary Cabinet System (19 pages); Finances (3 pages); Local …
Japanese Judicial Review Of Legislation: The First Twenty Years, Dan Fenno Henderson
Japanese Judicial Review Of Legislation: The First Twenty Years, Dan Fenno Henderson
Washington Law Review
The shift in 1947 from a political to a legal (or justiciable) constitution of Anglo-American design meant also a shift from professors to the courts as the authoritative expounders of the Constitution, though of course the leading critics and synthesizers are still the scholars. Soon followed, for the first time, a body of Supreme Court decisions which became the detailed sources of constitutional law, presaging adoption throughout the legal profession of a new juristic method in the public law field using scholarly theories where appropriate but rooted in case analysis. These changes in professional roles, sources and methods have caused …
Treaties And The Constitution, Isao Sato
Treaties And The Constitution, Isao Sato
Washington Law Review
Problems of the validity of treaties in a constitutional order concern aspects of both international and constitutional law. The chief concern of this article, however, is the effect of the Japanese Supreme Court's power of judicial review upon the validity of treaties in domestic law. The relationship of treaties and the Constitution long has been a favorite theme of Japanese international law scholars. Under the new Constitution it has become an urgent and unavoidable issue for constitutional law scholars as well; the present constitution, unlike the Meiji Constitution, has provisions, (Articles 81 and 98), which bear directly upon the problem.
Some Reminiscences Of Japan's Commission On The Constitution, Kenzo Takayanagi
Some Reminiscences Of Japan's Commission On The Constitution, Kenzo Takayanagi
Washington Law Review
On June 11, 1956, the Commission on the Constitution was created. Its duties, as laid down by the enacting statute, were "to examine the Constitution of Japan, to investigate and deliberate on problems related thereto, and to report the results to the Cabinet and through the Cabinet to the National Diet." When the work of the Commission on the Constitution was approaching an end in 1964, there was informal talk about attempting an English translation of at least the Final Report. For a variety of reasons, this idea failed to materialize. However, there have been at least two excellent articles …
Judicial Review Of Administrative Actions In Japan, Ichiro Ogawa
Judicial Review Of Administrative Actions In Japan, Ichiro Ogawa
Washington Law Review
The reform of administrative litigation under the new Constitution involves a shift from an "administrative state" to a "judicial state." This does not mean, however, that the system of administrative litigation is now the same as the system in the Anglo-American "judicial state." The distinction between public and private law is still maintained in Japan, and "administrative acts" (Gyosei-koi) are regulated by principles of public law quite different from rules applicable to private persons.
The Public Welfare Standard And Freedom Of Expression In Japan, Lawrence W. Beer
The Public Welfare Standard And Freedom Of Expression In Japan, Lawrence W. Beer
Washington Law Review
This article analyzes the constitutional right of free expression, exercised by political demonstrations, in the political context of contemporary Japan, where consensus among political parties on the constitutional framework itself is lacking. The Japanese people possess an unusually strong sense of cultural unity, and strong emphasis is placed on harmony and consensus in social relations. On the other hand, the excesses and strident tone of many mass demonstrations strikingly illustrate the absence of consensus between groups and the pervasive tendency toward "groupism" which distinguish the Japanese from the American political setting. Although the sociopolitical tensions may have become great in …