JAPANESE CONSTITUTIONAL HISTORY
THE TWO JAPANESE CONSTITUTIONS
The current Japanese Constitution (Kenpō-憲法) was enacted on 3rd November 1946 and in force since 3rd May 1947; it was drafted and enacted during the Allied (American) occupation after the defeat in WWII. Non flexibility is an exception wrt to Democratic Pluralistic States without a Court entitled to protect and review it; it’s Japan’s second Constitution after the one of 1889 during the Meiji Era (Meiji Kenpō) granted (octroyèe) by the Emperor (Tennō/天皇); the current one has been enacted by the people. Both Constitution are rigid (entrenched) with a particular amendment procedure and can be defined as the fundamental law of the State, following the European tradition. THE ARCHAIC PERIOD: Japan has 2,000 years of history but only recently introduced the notion of Constitution, the founder of the country is Emperor Jinmu, son of the sun goddess Amaterasu Ōmikami, in 660 BC; same Imperial Family unbroken for ages since the origin remaining a God till 1946 (art 31) In this period the Emperor ruled through the system of clans, each led by a patriarchal chief, the government was based on religious authority and Law was basically customary. THE SEVENTEEN-ARTICLE CONSTITUTION: the Seventeen-Article Constitution was proclaimed by Crown Prince Shōtoku in 604, despite being called “Constitution” it’s a manifestation of moral principles for public officials as was not the supreme source and lacked the provision of gov framework and bill of right. Art 1 enshrines the main principle of Japanese society =“HARMONY (wa-和) should be most respected” leading to a very low litigation rate as it’s the most important value guiding public and private sphere. FROM TENNŌ TO BAKUFU: gradually the Emperors come to strengthen their powers and a centralized State emerged. After 794 its direct rule was eroded by the nobles (kuge) which, in order to defend their estates, employed warriors (bushi) that formed a new social class. Eventually the warriors took the power, destroyed the privileges of the nobles and founded the Bakufu (warriors’ government). THE BAKUFU: the feudal relationships developed; the Tennō became a nominal ruler and kept the authority to grant the title of Shōgun to the leader of warriors. The political powers were exercised by the Shōgun who was the leader and all the other warriors were his retainers, they swore loyalty to him and offered military services in return of lands allotments. Diarchy: King deprived of political power but still the highest priest of Shintoism and ceremonial role as a symbol but not a ruler (as in Lib states); Shogun political power based in Tokyo with a Feudal society and licensed Lords. THE TOKUGAWA ERA (1600-1867): after the battle of Sekigahara (1600) no wars under Tokugawa family reign that established a stable Bakufu in Edo lasted until 1867, the law was still largely customary but nevertheless the gov enacted some important codes of conduct on duties of social classes. This political system was a combination of : direct rule by the Shōgun
autonomous domains ruled by the territorial lords (daimyō)
There was no notion of superior law that constrained the Tennō or the gov, whose relationships with the daimyō or the people was not based on rights and obligations. The country was completely isolated and in 1654 US ships guided by Commodore Henry arrived in Tokyo asking the opening to trade causing an internal crisis: Shogun in favour and Emp against but in the end they signed some “unfair” treaties. Until the end of the Tokugawa Era there were no Japanese words corresponding to “rights” or “freedom”. On Jan 1868 the imperial rule was restored ( Meiji Restoration) with political power back to the Emperor. THE MEIJI ERA: on 5th April 1868 the Tennō promulgated the Five Charter Oath: “By this oath, we set up as our aim the establishment of the national wealth on a broad basis and the framing of a constitution and laws. 1. Deliberative...
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