Law&Governance (Con Law 3 in English )

Introduction to Public Law (Law&Governance)

1. Before Meiji Constitution

The Japanese Legal System,.Chapter 1, Introduction 1-43（21-30）

Nuinosuke v. Chube case

Mito Koumon Drama <= what is Mito Koumon (wikipedia)

Chusingura drama <= what is Chusin gura

2.Three basic principles of Constitution

1)People’s sovereignty

2)List of fundamental rights

3)Pacifism

3. Three branches in Japanese government

Legislature

Executive branch

Judiciary

=> Japanese Constitution

=> Ministry of Agriculture, Forestry and Fisheries

4. What is Constitutionalism ?

Constitution ? Fundamental law of the state

(A)What is separation of powers ?

You don't trust a person with X? Government as Angel. Optimistic or pessimistic

Article 41: The highest of state power => politically eulogistic name

Article 65: Not "All" term.

(B)What is rule of law ?

Not rule of King but law

(1) Due process of law.

(2) A list of fundamental rights.

(3) Judicial Review

* rule of law may connect with parliamentary system or presidential system.

-dignity from sympathy, or sorrow ?

- John Rawls , Justice as fairness (People are unequal ?)

1: Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all

2: Social and economic inequalities are to satisfy two conditions:

The veil of ignorance, which prevents other arbitrary facts about citizens from influencing the agreement among their representatives. ....They are to be attached to offices and positions open to all under conditions of fair equality of opportunity; They are to be to the greatest benefit of the least-advantaged members of society (the difference principle).

<= veil of ignorance

(4) Rule of law in the world by World Justice Project

The government and its officials and agents as well as individuals and private entities are accountable under the law.

The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property.

The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.

Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

(C)The two meanings of liberty

↓

(1) Adolf Hitler vs J.S. Mill

=> freedom of speech is indispensable instrument

self development, originality, higher mode or existence =>Improvement of Mankind

(2) Right as trumps, Dworkin, Theory of Jurisprudence. against the tyranny of the majority (Majoritarian democracy)

(D)Carl Schmitt v. Hans Kelsen

Schmitt: No legal norm can govern an extreme case of emergency or an absolute state of exception.

Sovereign dictatorship is an eminently democratic institution.

Discussion is compromised in the parliament.

(1) A law is a law, however undesirable it may be

(2) Constitution is Supreme law of land

(3) legal positivism

(E) Legal studies can't answer question of life, what your happiness is.<= Max Weber, Science as a Vocation

* H.L.A Hart=> Joseph Raz => Ronald Dworkin

5. What are three principle of Japanese Constitution ?

(A) People Sovereignty

Sovereignty => legitimacy and power

People => 18 or 20 to vote <= souveraineté nationale v.souveraineté du peuple

Climate change, baby, future generation

The ruler and the ruled

(B) A list of fundamental basic rights

Alexander Hamilton, No Bill of rights. => Negligently /intentionally, Gewalt Apparat (apparatus of violence) (Max Weber)

-Pursuit of happiness and privacy

-Judicial review

(1)Political channel between the Diet and the people

(2)Negative state

(3)Positive state

=> Public welfare

=> Constitutional presumption

(4) German type judicial review,

Self Defense > Tatbestand > Rechtswindrigkeit > Schuld

Three step test

(5) Case and Controversy is Constitutional requirement or legislative requirement in Japan ?

-Concrete , personal stake to dispute

-Faceless judge, Why black their robe ?

Article 9.Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

↓

-Ashida modification < In order to accomplish the aim of the preceding paragraph>

-Sunagawa Case

-National Police Reserve Case

↓

6. Pacifism and newspapers

Japan's pacifist constitution: After 70 years, nation changes the rules so it can go to war

Japan's Pacifist Constitution by NY Times

Peace in East Asia and the Japanese Constitution: A Reexamination 60 Years After Its Making

THE CONSTITUTION OF JAPAN: PACIFISM, POPULAR SOVEREIGNTY, AND FUNDAMENTAL HUMAN RIGHTS

The Future of Japanese Constitution

Handbook on the Research Report on the Constitution of Japan