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Editorial Reviews
David M. OBrien
While many countries in the last half of the twentieth century have been influenced by the Constitution of the United States, none except for Japan has had a constitution drafted and imposed on it by the United States. Moreover, Japan's postwar constitution, promulgated on November 3, 1946 and put into effect on May 3, 1947, brought revolutionary changes to a country with very different cultural, legal, and socioeconomic conditions and traditions. Japan's 1947 Constitution was revolutionary in several respects. First, although Japan was the first country in Asia to have a constitution in the late nineteenth century, the prewar Meiji Constitution established a constitutional monarchy and proclaimed the sovereignty of the emperor as a divine living god. By contrast, the postwar Constitution rests on the concept of popular sovereignty and created a parliamentary democracy. Second, the institutions of prewar State Shinto and the glorification as deities of soldiers who died fighting for the country were disestablished. Third, and closely related to the separation of religion from the state, the postwar Constitution includes numerous guarantees for civil rights and liberties. Finally, Japan's postwar Constitution provides for "American-style" judicial review. Unlike the parliamentary system in Great Britain and for the first time in Japan's history, the Japanese judiciary was separated from the rest of government and given the power to strike down laws that violate the Constitution. Needless to say, perhaps, Japan's 1947 Constitution was resented (and continues to be resented) by conservatives, who continuously press for constitutional reforms. By contrast, liberal Japanese professors ardently defend the Constitution while criticizing the politics of Japan's postwar constitutional democracy, which has been dominated by the conservative Liberal Democratic Party, has made political reforms difficult, and has failed to root out discrimination against women and minorities. The literature in English on Japanese constitutional politics is growing but remains a mixed bag. For decades much of the literature was dominated by what Patrick Smith (1997) calls the "Chrysanthemum Club"--a group of scholars who were "uncritical apologists for Japan." Led by Edwin O. Reischauer (1988), a former Harvard professor and U.S. ambassador to Japan, they emphasized the sharp break with the past brought about by the 1947 Constitution and perpetuated myths about Japanese homogeneity and political consensus. However, in the last decade there have been a number of highly critical and revisionist studies. Peter Herzog’s JAPAN’S PSEUDO-DEMOCRACY (1993) is a useful, even if at times overstated, critique and overview of many of the major controversies animating Japan’s postwar constitutional politics. Karel von Wolferen’s THE ENIGMA OF JAPANESE POWER (1989) is less scholarly but more readable and not without insights. Applying a rational choice model and principal-agent theory to Japanese postwar politics, J. Mark Ramseyer and Frances McCall Rosenbluth (1993) stirred a controversy among Japanologists, particularly with "culturalists" over their sweeping generalizations and failure to closely analyze the actual operation of institutions like the judiciary. In any event, these works highlight the deep-seated conflicts in Japan that cut along ideological, generational, geographical, and gender lines. With respect to the drafting of Japan’s postwar Constitution, there have been a number of useful studies, written principally by scholars who served in the U.S.-Allied Occupation (Ward; Woodard; and Oppler). Most of them, perhaps not surprisingly, emphasize the American role and pressures brought to bear on Japanese officials to accept constitutional reforms modeled after the U.S. Constitution. In contrast, Kyoko Inuoe (1991) provocatively contends that Americans and the Japanese duped each other in the drafting process through misunderstandings of language and culture. But, Inuoe’s study has been sharply and correctly challenged (Ramseyer). THE BIRTH OF JAPAN’S POSTWAR CONSTITUTION makes a valuable contribution in clarifying matters and showing the relative contributions of Americans and Japanese to the framing of Japan’s 1947 Constitution. Drawing on Japanese, American, and Australian archives as well as other research, Koseki Sensei admirably demonstrates that the process of framing and popularizing Japan’s postwar Constitution was complex and involved compromises over conflicting ideas of legal reform, political ideology, and fundamentally different cultures. Koseki takes to task much of the literature that has overly dramatized the break between Japan’s prewar and postwar Constitution. He shows how and why the postwar Constitution became influential but also subject to rival interpretations and reinterpretations. In short, Japan’s 1947 Constitution merely established a new basis for on-going political struggles and constitutional debate. It was not, as frequently depicted, entirely General MacArthur’s Constitution. And, as Koseki persuasively argues, it quickly became "Japanized" by conservative Japanese officials who have extrajudicially interpreted and reinterpreted the document, particularly controversial provisions like its peace provision in Article 9, which renounces Japan’s sovereign right to wage war and to maintain a military for that purpose. When THE BIRTH OF JAPAN’S POSTWAR CONSTITUTION appeared in Japanese in 1989 it received prizes for its authenticity and careful scholarly documentation. Koseki is a professor of law at Dokkyo University and he worked with Ray A. Moore, a professor of history and Asian studies at Amherst College, to bring out this English translation. THE BIRTH OF JAPAN’S POSTWAR CONSTITUTION is a very useful reference work. Along with a number of other works it now makes it possible to include Japan’s postwar constitutional politics in courses on comparative constitutional law and judicial politics. [Notably, there are several casebooks on Japanese postwar constitutional law (Maki; Itoh and Beer; and Beer and Itoh), as well as other collections (Luney and Takahashi) and studies of the Japanese judiciary, law, and social change (Beer; Castberg; Haley, Upham; and Jacob, et al.).] And that is a welcomed development and a corrective to the bias towards studying only U.S. and Western courts and constitutional politics. References Beer, Lawrence. 1984. FREEDOM OF EXPRESSION IN JAPAN. Tokyo: Kodansha International. Beer, Lawrence, ed. 1992. CONSTITUTIONAL SYSTEMS IN LATE TWENTIETH CENTURY ASIA. Seattle: University of Washington Press. Beer, Lawrence, and Hiroshi Itoh, eds. 1996. THE CONSTITUTIONAL CASE LAW OF JAPAN, 1970 THROUGH 1990. Seattle: University of Washington Press. Castberg, A. Didrick. 1990. JAPANESE CRIMINAL JUSTICE. New York: Praeger. Haley, John O. 1991. AUTHORITY WITHOUT POWER: LAW AND THE JAPANESE PARADOX. New York: Oxford University Press. Hamilton, V. Lee, and Joseph Sanders. 1992. EVERYDAY JUSTICE: RESPONSIBILITY AND THE INDIVIDUAL IN JAPAN AND THE UNITED STATES. New Haven: Yale University Press. Herzog, Peter. 1993. JAPAN’S PSEUDO-DEMOCRACY. New York: New York University Press. Inoue, Kyoko. 1991. MACARTHUR’S JAPANESE CONSTITUTION: A LINGUISTIC AND CULTURAL STUDY OF ITS MAKING. Chicago: University of Chicago Press. Itoh, Hiroshi, and Lawrence Beer, eds. 1978. THE CONSTITUTIONAL CASE LAW OF JAPAN: SELECTED SUPREME COURT DECISIONS, 1961-1970. Seattle: University of Washington Press. Jacob, Herbert, and Erhard Blankenburg, Herbert M. Kritzer, Doris Marie Provine, and Joseph Sanders. 1996. COURTS, LAW & POLITICS IN COMPARATIVE PERSPECTIVE. New Haven: Yale University Press. Luney, Percey, and Kazuyuki Takahashi, eds. 1993. JAPANESE CONSTITUTIONAL LAW. Tokyo: Tokyo University Press. Maki, John, ed. 1978. COURT AND CONSTITUTION IN JAPAN: 1948-1960. Seattle: University of Washington Press. Oppler, Alfred. 1985. LEGAL REFORM IN OCCUPIED JAPAN. Princeton: Princeton University Press. Ramseyer, J. Mark. 1990. Together Dupped: How Japanese and Americans Negotiated a Constitution Without Communicating. LAW IN JAPAN. 23: 123. Ramseyer, J. Mark, and Frances McCall Rosenbluth. 1993. JAPAN’S POLITICAL MARKETPLACE. Cambridge: Harvard University Press. Reischauer, Edwin O. 1988. THE JAPANESE TODAY. Cambridge: Belknap Press. Smith, Patrick. 1997. JAPAN: A REINTERPRETATION. New York: Pantheon. Upham, Frank. 1987. LAW AND SOCIAL CHANGE IN POSTWAR JAPAN. Cambridge: Harvard University Press. von Wolferen, Karel. 1989. THE ENIGMA OF JAPANESE POWER. New York: Knopf. Ward, Robert, ed. 1968. POLITICAL DEVELOPMENT IN MODERN JAPAN. Princeton: Princeton University Press. Ward, Robert, and Yoshikazu Sakamoto, eds., 1987. DEMOCRATIZING JAPAN: THE ALLIED OCCUPATION. Honolulu: University of Hawaii Press. Woodard, William. 1972. THE ALLIED OCCUPATION OF JAPAN 1945-1952, AND JAPANESE RELIGION. Leiden: E.J. 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