Q: What is the "Constitution" in Japan, and how does it define the relationship between the state and society?

The term "Constitution" (憲法 - kenpō) in Japan carries a depth of meaning that extends beyond a mere legal document. It serves as the foundational framework defining the nation's very essence, the powers and limitations of its governing institutions, and, crucially, the intricate relationship between the state (kokka) and society (shakai). Understanding this relationship is paramount for anyone seeking to grasp the underpinnings of Japanese law and governance. This article delves into the conceptual layers of the Japanese Constitution and explores how it delineates the spheres of state authority and societal autonomy.

The Multifaceted Concept of "Constitution" in Japan

In Japanese constitutional scholarship, the term "Constitution" is generally understood through three distinct, yet interrelated, lenses, drawing from historical and comparative legal thought.

1. The "Inherent" or "Intrinsic" Meaning of Constitution (固有の意味の憲法 - koyū no imi no kenpō):
   This refers to the fundamental set of rules that establish and organize a state, regardless of whether they are written or unwritten. From this perspective, every state, by its very existence, possesses a constitution in this inherent sense. It’s the blueprint that defines the principal organs of government, their functions, and the basic relationship between the state and its people. Without such a framework, a political entity cannot coherently function as a state. The Japanese Constitution, in its provisions establishing the Diet, the Cabinet, and the Courts, and outlining their core powers, clearly embodies this intrinsic meaning.
2. The "Modern" or "Constitutionalist" Meaning of Constitution (近代的意味の憲法 - kindaiteki imi no kenpō or 立憲的意味の憲法 - rikkenteki imi no kenpō):
   This layer of meaning is imbued with the principles of modern constitutionalism, which emerged from the Enlightenment and various civic revolutions. It views the constitution not just as an organizational chart for the state, but as a higher law designed to limit state power and protect the fundamental rights and freedoms of individuals. Article 16 of the French Declaration of the Rights of Man and of the Citizen (1789) famously encapsulates this idea: "Any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no constitution at all." The Japanese Constitution is deeply rooted in this tradition, with its extensive Bill of Rights (Chapter III) and its mechanisms for the separation of powers, explicitly aiming to prevent the resurgence of authoritarianism and safeguard individual liberties. This concept emphasizes that the state's authority is not absolute but is constrained by law to serve the people and protect their inherent dignity.
3. The "Formal" Meaning of Constitution (形式的意味の憲法 - keishikiteki imi no kenpō):
   This refers to the existence of a specific, codified document formally titled "The Constitution," which typically has a higher legal status than ordinary laws and requires a more stringent amendment process (i.e., it's a "rigid" or "entrenched" constitution). The Constitution of Japan, promulgated in 1946 and effective since 1947, fits this description perfectly. It is a single, written document, and Article 96 stipulates a rigorous amendment procedure involving supermajorities in both houses of the Diet and a national referendum, making it significantly harder to change than ordinary statutes. This formal supremacy underscores its role as the nation's fundamental law.

Delineating the State and Society: Jellinek, Locke, and the Japanese Context

A crucial aspect of how the Japanese Constitution defines the relationship between the state and its people lies in the conceptual distinction between the "state" (kokka) and "society" (shakai).

The German jurist Georg Jellinek's influential "three-element theory of the state" (国家三要素説 - kokka san'yōso-setsu) posits that a state is constituted by three essential elements: territory (領土 - ryōdo), people (国民 - kokumin), and state power or sovereignty (国家権力 - kokka kenryoku or 主権 - shuken). State power is the organizing force that binds the people within a given territory. However, this power does not, and constitutionally should not, extend to every facet of human life.

The sphere of activity that remains free from direct state organization and control is what is termed "society". In modern constitutional democracies like Japan, this societal sphere is where individuals, as private persons, can freely form their lives, pursue their interests, and engage in a multitude of voluntary associations. This domain is constitutionally protected by fundamental rights, such as freedom of speech, assembly, and religion. The distinction between the public sphere of the state, where individuals participate as citizens in governance, and the private sphere of society, where they enjoy autonomy, is a cornerstone of liberal constitutionalism. This also underpins the distinction in law between public law (governing the state and its relationship with individuals) and private law (governing relationships between individuals).

The Preamble to the Japanese Constitution also echoes elements of John Locke's social contract and trust theory. It declares that "government is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people." This Lockean notion suggests that people establish a political or civil society (which can be equated with the state in a broader sense) through a social contract, and then create a "government" through a trust, to manage the affairs of that society for their benefit. If the government breaches this trust, the people retain the ultimate right to alter or abolish it.

While Jellinek's state-as-a-legal-entity theory (国家法人説 - kokka hōjin-setsu), famously adopted by Japanese jurist Tatsukichi Minobe, and Locke's trust theory offer different conceptual starting points, they both converge on the idea that state power or governmental authority is not an end in itself but is subject to purposive limitations. The legitimacy of governance, therefore, stems from both the process by which power is acquired and exercised (democratic input) and the outcomes it achieves in terms of safeguarding the rights and welfare of the people (fundamental rights output). The Constitution's role is to establish the framework for such legitimate governance.

Constitutionalism as the Guiding Principle

The Japanese Constitution is unequivocally a constitution of constitutionalism (rikken-shugi). This means it is designed not merely to organize state power, but to limit it according to fundamental principles, ensuring that government actions are lawful, non-arbitrary, and respectful of individual rights. Key elements of constitutionalism embedded in the Japanese system include:

• Supremacy of the Constitution: The Constitution is the highest law of the land, and all governmental acts must conform to its provisions (Article 98).
• Guarantee of Fundamental Human Rights: Chapter III provides for a comprehensive catalogue of civil, political, economic, and social rights.
• Separation of Powers: Legislative power is vested in the Diet (Article 41), executive power in the Cabinet (Article 65), and judicial power in the Courts (Article 76).
• Rule of Law (法治国家 - hōchi kokka / 法の支配 - hō no shihai): Government must act in accordance with the law, and individuals are protected from arbitrary power.
• Judicial Review: The Supreme Court has the power to determine the constitutionality of any law, order, regulation, or official act (Article 81).

These principles collectively ensure that the state operates within a defined legal framework, accountable to the people and protective of their inherent freedoms. The relationship between the state and society is thus one where the state is empowered to act for the common good but is simultaneously restrained from encroaching upon the autonomous sphere of society and the fundamental rights of individuals.

It is important to note that while these are the formal delineations, the actual interplay between state and society is dynamic and constantly negotiated through political processes, judicial interpretation, and societal engagement. For instance, issues like the balance between national security and individual privacy, or the extent of state intervention in the economy, continuously test and redefine the boundaries set by the Constitution.

Conclusion: A Framework for Limited Government and Societal Autonomy

In essence, the Japanese Constitution defines the relationship between the state and society by establishing a system of limited government. It recognizes an autonomous sphere for society where individuals can freely exercise their rights and pursue their endeavors. The state is granted authority to govern, but this authority is derived from the people, is subject to constitutional limitations, and must be exercised in a manner that respects fundamental human rights and the rule of law. While debates on the precise balance and interpretation continue, the core constitutional commitment to a society where individual dignity is paramount and state power is constrained remains the guiding principle. This framework is not static; it evolves as Japan navigates new social, economic, and global challenges, making its ongoing interpretation and application a subject of vital importance.