Issues | LAW OF THE LAND

Is the Article 9 labyrinth merely academic?

by Colin P.A. Jones

Contributing writer

In the past, merely considering procuring combat jets with aerial-refueling capabilities triggered constitutional debate in Japan. What purpose could it serve but to attack other countries, conduct supposedly forbidden by Article 9 of the Constitution, which renounces (among other things) “the use of force as a means of settling international disputes”?

Things have changed: The government is reportedly considering acquiring “first strike” preemptive attack capabilities. Arguably it already has the ability to do so in the form of new “destroyers” that look suspiciously like aircraft carriers. Although it was just a few years ago, the days of Japanese parliamentarians lobbying for their Constitution to be awarded the Nobel Peace Prize seems like the distant past.

Yet I have often wondered if Japan’s Constitution has ever been as special as the hype surrounding it. Article 9’s two-paragraph “no war” provisions are interpreted as permitting Japan to both have military capabilities and use them defensively. The Philippine Constitution also renounces “war as an instrument of national policy.” South Korea’s charter disclaims “all aggressive wars.” France’s 1958 constitution renounces wars of conquest, as did its first constitution of 1791. Other countries deal with the issue by simply not having armed forces.

Thus, while Japan’s Constitution may be noble in its aspirations, is it really unique? Most commentators — Japanese and foreign alike — take it as an article of faith that Japan is somehow remarkable in having an anti-(offensive) war constitution. But what if the mythos of Article 9 was just another piece of demonstrably wrong propaganda about Japan’s uniqueness, like it having four seasons and a love of harmony?

According to a recent book “Kenpogaku no Yamai” (The Disease of Constitutional Scholarship), the blame for the mythification of Japan’s Constitution rests squarely on the shoulders of a seemingly benign demographic: law professors. Published in 2019 by professor Hideaki Shinoda, it explains how some of the nation’s most famous constitutional scholars are responsible for both the myth of constitutional uniqueness and decades’ worth of contorted interpretive theory, particularly surrounding Article 9.

This is not just academic infighting: Children start learning about the Constitution in elementary school and constitutional law is a subject that must be “correctly” understood by law students as well as by anyone seeking to pass prestigious public service exams or obtain a law license. Constitutional law professors at top schools like the University of Tokyo play a key role in defining this “correct” understanding.

Shinoda starts with no less figure than the late Nobuyoshi Ashibe, whose text on constitutional law — now curated by a disciple — is in its seventh edition and has become the benchmark by which smug intellectuals evaluate a minimal level of constitutional knowledge. In 2013 Prime Minister Shinzo Abe garnered scorn from the intelligentsia by admitting he did not recognize Ashibe’s name.

The Constitution’s preamble has for decades been taught as expressing three fundamental principles. According to Ashibe’s text these are: (i) popular sovereignty, (ii) respect for basic human rights and (iii) pacifism. Yet one would struggle to find these principles clearly enunciated in the preamble’s text, which does not even mention human rights.

Moreover, the principles have changed over the years (in a 1947 text the Education Ministry described them as being: (i) popular sovereignty, (ii) internationalist pacifism and (iii) democracy), and academics still argue about them. If a principle changes in a lecture hall and nobody screams, is it really a principle?

Shinoda also renders a satisfactory bashing to the “August Revolution” theory developed by the late Toshiyoshi Miyazawa of the University of Tokyo and perpetuated by his disciples. This absurd theory was advanced to explain away the supposed impossibility of using the amendment procedures under the previous constitution (the so-called Meiji Constitution) to create an entirely new constitution, and shift the locus of sovereignty from the Emperor to the people.

According to Miyazawa, what actually happened was that acceptance of the Potsdam Declaration in August 1945 not only ended the war, but constituted a “revolution” which magically shifted sovereignty to the Japanese people right there and then, rather than two years later when the new constitution came into force.

This theory conveniently minimizes the American role in creating the new Constitution. As Shinoda points out, during and before the war Miyazawa was ardently pro-establishment and anti-Anglo-Saxon. Miyazawa and others may have overcompensated in trying to ignore the Constitution’s American influence, despite obvious borrowing from the U.S. Constitution, including the Preamble’s “we the people” style opening and language reminiscent of famous quotes from U.S. Presidents Abraham Lincoln and Franklin D. Roosevelt.

According to Shinoda, efforts to obfuscate its provenance have contributed to the Galapagos-like state of constitutional interpretation. In English the term “justice” appears in both the preamble and Article 9, and also features in the U.S. Constitution as well as the United Nations Charter. The Japanese version of the Constitution renders “justice” in the preamble only as kosei — which really means “fairness.” Constitutional law professors built on this obfuscation by trying to convert the preamble into mandates for things they thought Japan should aspire to, like a neutralist foreign policy.

Much of Shinoda’s ire is devoted to what law professors have done to Article 9. In his view, Ashibe and other leading constitutional law scholars created an ideology-driven, nonsensical interpretation of its text that generates an endless supply of conundrums for the same coterie of scholars to solve with further lashings of nonsense. Building the myth of Japan as a uniquely pacifistic nation with a unique constitution initially entailed legal theories holding Article 9 as prohibiting Japan from having any military forces whatsoever or even engaging in wars of self-defense.

The creation and continued existence of the Self-Defense Forces made this untenable, so theory had to adapt to acknowledge a military while denying it any role other than “self-defense.” This interpretation did not, however, allow the SDF to engage in collective self-defense activities abroad with allies, and most mainstream constitutional scholars have been reluctant to accommodate the U.S.-Japan security alliance, or even acknowledge it other than as something that is probably unconstitutional.

To Shinoda the perpetuation of the Article 9 mythology involves willful ignorance of international law. A specialist in international relations, Shinoda notes “the right of belligerency,” “war as a sovereign right of the nation” and “the threat or use of force as means of settling international disputes,” purportedly abandoned by Japan through Article 9, no longer existed at the time the Constitution was drafted.

In addressing these concepts as anything other than historical artifacts, scholars like Ashibe demonstrate their academic heritage rooted in 19th century Germanic theories of the “state as person,” exercising “rights of belligerency” at will in furtherance of territorial conquest and other national goals. Yet this worldview had been rejected early in the 20th century by an ascendant United States and delegitimized by the disastrous legacy of World War I.

By 1929, most nations including Japan had signed the Kellog-Briand Pact, in which they agreed to renounce the use of war as an instrument of national policy and resolve conflicts through peaceful means. These may seem like empty words given the disastrous wars that followed, but they would have had meaning to the Americans who produced the Constitution’s first draft. To them, Japan and other axis nations were aggressors guilty of breaking the rules. The Atlantic Charter of 1941 decried the use of force and called for disarmament under a system of collective security. By 1946, when the Constitution was drafted, the victorious allies were already building such a system under the auspices of the United Nations.

In this context Article 9 is not mysterious or unique: It is simply a clear expression of intent by Japan to never again stray from principles of international law already agreed upon before the war. It is the reaffirmation of a promise once broken, not some newly-invented “Japanese-only” principle of pacifism.

In Shinoda’s view the plain meaning of Article 9 is even more obvious when read with the preamble. The latter’s undertaking to trust “in the justice and faith of the peace-loving peoples of the world” is a reference to the victorious allied powers and the U.N. Charter of 1945, which declares membership open to all “peace-loving states.” The preamble and Article 9 can thus be seen as an undertaking to abide by the principles of the U.N. until Japan could join, which happened in 1956.

Numerous creative theories have been read into Article 9 and the preamble by scholars over the years. Some, however, may be little more than ahistorical wishful thinking and obfuscation packaged in “Japan is unique” tropes. Japan’s courts have done little meaningful interpretation of either provision, conveniently leaving even fanciful theories unrefuted.

Still, perhaps Shinoda’s evaluation may be too critical. Japan has enjoyed decades of peace and prosperity. Its people never demand that bombs be dropped on other countries or rejoice when it happens. If constitutional law professors and their obstinate theories have played any small part in this, perhaps they deserve some praise too.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto and co-author of “The Japanese Legal System” and “The Japanese Legal System in a Nutshell.”

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