The constitution of Japan : a contextual analysis / Shigenori Matsui.
2011
KNX2070 .M38 2011 (Map It)
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Items
Details
Author
Title
The constitution of Japan : a contextual analysis / Shigenori Matsui.
Published
Oxford ; Portland, Or. : Hart Pub., 2011.
Call Number
KNX2070 .M38 2011
Former Call Number
Jpn 910 M429 2011
ISBN
9781841137926 (pbk.)
1841137928 (pbk.)
1841137928 (pbk.)
Description
xl, 289 pages ; 22 cm.
System Control No.
(OCoLC)615896653
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Donation
Purchased from the income of the Toshiba Fund
Donation
The Toshiba Library for Japanese Legal Research
Purchased from the income of the Toshiba Fund
Table of Contents
Preface
v
Table of Cases
xv
Table of Legislation
xxv
Note on Citation of Court Decisions
xxxvii
Major Textbooks on Constitutional Law in Japan
xxxix
1.
The Constitution: Context And History
1
Introduction
1
pt. I
Constitutional Context
2
The Meaning of the Constitution
2
The Basic Characteristics of the Japanese Constitution
3
pt. II
History
4
Prior to the Meiji Restoration
4
The Meiji Constitution
7
The Japanese Constitution
13
Postwar History
16
The Legitimacy of the Japanese Constitution
18
pt. III
Sources Of Constitutional Law
21
The Meaning Of Source
21
Sources Of Constitutional Law As Judicial Norms
22
pt. IV
Supremacy of the Constitution
24
The Constitution as the Supreme Law
24
Laws Enacted Under the Meiji Constitution
25
Occupation Orders
27
Treaties
28
pt. V
Fundamental Principles of the Japanese Constitution
29
Popular Sovereignty
29
Renunciation of War and Pacifism
29
Protection of Fundamental Human Rights
30
Rule of Law
31
Separation of Powers
32
Central Government and Local Autonomy
32
Japanese Society and the Constitution
33
Conclusion
34
Further Reading
35
2.
The Constitution, the People and the Emperor
37
Introduction
37
pt. I
The Popular Sovereignty Principle
38
The Meaning of the Popular Sovereignty Principle
38
The Power of the People to Choose their Representatives
41
pt. II
The People
44
The Scope of the People
44
The Special Status of Resident Koreans and Taiwanese
45
pt. III
Election and Political Party
47
The Electoral System
47
Public Participation in Politics
50
The Role of the Political Parties
54
pt. IV
The Emperor
58
The Status of the Emperor
58
The Power of the Emperor
59
Conclusion
61
Further Reading
62
3.
The Diet and the Legislative Power
65
Introduction
65
pt. I
The Diet
66
The Status of the Diet
66
The Organization of the Diet
67
pt. II
Powers of the Diet
69
Legislative Power
69
What Kind of State is Envisaged by the Constitution?
72
Budget and Treaty Approval
73
Power Over Finance
74
Delegation of Legislative Power
77
pt. III
Legislative Process
78
Introduction of a Bill
78
Examination of a Bill
79
Voting
80
Diet Sessions
82
Power of the House to Investigate Governmental Affairs
83
Privileges of Diet Members
85
pt. IV
Legislators and Bureaucrats: Reality of the Legislative Process
86
Who Are Legislators?
86
Reality of the Legislative Process
86
Legislators or Bureaucrats?
87
Conclusion
89
Further Reading
90
4.
The Cabinet and the Executive Power
91
Introduction
91
pt. I
The Status of the Cabinet and the Prime Minister
92
The Cabinet
92
The Prime Minister and the Cabinet
94
pt. II
The Powers of the Cabinet
96
Executive Power
96
The Other Powers of the Cabinet
97
Emergency Powers
98
pt. III
The Relationship Between the Cabinet and the Diet
100
The Parliamentary System
100
Dissolution of the House of Representatives
100
pt. IV
The Prime Minister, the Cabinet and Bureaucrats
103
The People Cannot Choose the Prime Minister
103
Weak Leadership Role of the Japanese Prime Minister
104
Executive Departments and Administrative Agencies
105
The Executive and Economic Policy
106
Strong Power of the Bureaucrats
108
Past Reforms and the Future Reform Agenda
109
pt. V
Legal Control of the Executive
111
Diet Control of the Executive
111
Due Process and Fair Procedure
111
Freedom of Information
113
Judicial Control Over the Executive
114
Conclusion
117
Further Reading
118
5.
The Courts and the Judicial Power
119
Introduction
119
pt. I
The Courts
120
The Courts and Judicial Power
120
Structure of the Courts
121
Judges
123
Independence of the Judges and the Judiciary
126
Judicial Process
129
Judicial Reform
132
pt. II
Justiciability
134
The Constitution and the Justiciability Requirement
134
Specific Requirements
135
pt. III
The Power of Judicial Review
140
The Nature of the Power of Judicial Review
140
Process of Constitutional Litigation
141
Judicial Review and Democracy
145
Conclusion
150
Further Reading
151
6.
The Protection of Fundamental Human Rights: Structural Issues
153
Introduction
153
pt. I
Fundamental Human Rights
154
Human Rights and Fundamental Human Rights
154
Structural Significance of Rights Protection
155
Classification of Rights
157
Who is Entitled to Protection?
158
pt. II
Applicability of Constitutional Rights
162
Applicability to Private Conduct of Citizens
162
Civil Rights Legislation
163
pt. III
Restrictions on Fundamental Human Rights
164
Fundamental Human Rights and Public Welfare
164
Permissibility of Restriction
166
Conclusion
170
Further Reading
171
7.
The Protection of Fundamental Human Rights: Specific Rights
173
Introduction
173
pt. I
Equality
174
Equal Protection Doctrine
174
Suspect Classifications
176
Affirmative Action
183
Other Forms of Discrimination
184
pt. II
Personal Freedoms
186
Protection of Personal Freedoms
186
Freedom of Thought and Conscience
187
Freedom of Religion
189
Freedom of Expression
196
Academic Freedom
211
pt. III
Economic Freedoms
215
Protection of Economic Freedoms
215
Right to Choose Occupation
216
Right to Property
219
pt. IV
Social Rights
221
Protection of Social Rights
221
Welfare Right
222
Right to Receive Education
224
Rights of Workers
225
Conclusion
229
Further Reading
230
8.
Pacifism And National Defence
233
Introduction
233
pt. I
Pacifism
234
Renunciation of War and the Ban on Armed Forces
234
Original Intent
235
Establishment of the National Police Reserve and the Self-Defence Force
238
pt. II
The Self-Defence Force
240
The Self-Defence Force and the Courts
240
The Limits of Military Action and Military Power
243
Defence Action and Emergency Situations
244
pt. III
The Japan[–]United States Mutual Security Treaty
245
The Japan[–]United States Mutual Security Treaty and American Troops
245
The Constitutionality of the Japan[–]United States Mutual Security Treaty
246
Military Cooperation with the United States
248
pt. IV
The Constitution and International Peace Cooperation
250
The Gulf War and the Enactment of the Peace Cooperation Act
250
The Constitutionality of the Self-Defence Force's Peacekeeping Role
252
Conclusion
254
Further Reading
255
9.
Constitutional Amendment and Reforms
257
Introduction
257
pt. I
Constitutional Amendment
258
Procedure for Constitutional Amendment
258
Limits on Constitutional Amendment
260
pt. II
Amending the Japanese Constitution or Enacting a New Constitution
262
Past Attempts
262
Current Proposals
265
Pacifism Principle
270
Conclusion
272
Further Reading
273
Index
275