The Harvard East Asia Society (HEAS) recently concluded its 20th Annual Conference: Roads through Asia, held this year in Harvard Center for Government and International Studies, Cambridge, Massachusetts. The conference program may be accessed HERE.
For the conference, I presented a paper, along with my co-author Tomonori Teraoka, titled: Legitimation Crisis of the Japanese Constitution: Reflections on Japan’s post-WWII Constitutionalization Process. Below are Powerpoint slides and working abstract for our HEAS presentation:
LEGITIMATION CRISIS OF THE JAPANESE CONSTITUTION: Reflections on Japan’s post-WWII Constitutionalization Process
(working draft, last updated January 30, 2017)
Keren Wang, Department of Communication Arts & Sciences, Penn State University
Tomonori Teraoka, Department of Communication, University of Pittsburgh
This paper examines the problem of constitutional legitimacy in Japanese political system, specifically focusing on the challenges and possibilities concerning the post-WWII Japanese constitution in terms of ability to create and maintain a self-referencing framework for the legitimate expression of the general will, in ways that not only adhere to the established transnational constitutional principles, but also conforms to the basic political lines of the polity. Against this theoretical background, this paper seeks to explore two primary question: first, did the post-WWII Japanese written constitution manage to transform itself into tacit societal knowledge that provides an legitimizing framework for the expression of the general will of Japanese polity? Second, is it possible to translate the basic political functions of post-WWII Japanese political system without fundamentally displace the established transnational constitutional principles? This paper investigates the problems aforementioned from the theoretical perspective of constitutionalization process, and explore both the legal and rhetorical dimensions of constitutional legitimacy. The goal is to identify relevant preexisting societal knowledge-frameworks that give rise to the explicit rhetoric concerning the post-WWII constitution, and examine their role in the shaping of the constitutional legitimacy in contemporary Japanese political system. The analysis in this paper keeps a strong eye towards the state of judicial review in postwar Japan, and distill a comparative model visualizing the gap between form and practice as observed in Japanese judicial review process. The analysis finds that in practice, the postwar Japanese Constitution has never been past the ensoulment stage of constitutionalization process. While the language in the current Japanese Constitution adheres to the prevailing transnational standards of constitutional democracy, its persistent lack of implementation implies that post-war Japan has yet to develop itself into a full-fledged constitutional society.