What exactly is the Constitution?

January 2006

Editorial Supervisor
Noriho Urabe
Professor at Nagoya University
Japan Institution of Constitutional Law Visiting Chief Researcher

The contents is based on a lecture given by Professor Noriho Urabe at the Japan Institution of Constitutional Law workshop (held on the 23rd of September 2005)

[Kenta] Constitutional "reform" is becoming a topical issue, however today we'd like to ask Professor Urabe what the Constitution is in the first place.

The Presence of "Power" In Society

[Professor Urabe] In order to understand why our Constitution exists and what exactly it stands for, we must understand about the history behind its making. Various concepts and systems emerge with the flow of history, so firstly it becomes very important to grasp the context from which such ideas appeared , in other words the historical origin.
A constitution is said to be the "Fundamental law of a state", but what exactly is a "state"? The answer is not simple, but one of its most fundamental constituents is the possession of "power". Having "power" means being able to bring a person into submission or compliance.
Now why does "power" exist? It comes down to the fact that a human cannot live alone. We can only live within the connections we have with various people, meaning that a "society" is formed there. In order to manage that "society", it becomes necessary to create various rules and make its members obey them. In such a society, "power"= the influence over the members to make them comply. Various groups of individuals exist in varying levels such as states, corporations, schools, and clubs; but such principle can be seen at any level. In other words, "power" is inescapably formed if one is to live.

[Noriko] I see. Wherever there is a group of people, there are rules that the group tries to make its members comply with. For example, we manage clubs by deciding the rules and person to be in charge through discussion.

[Professor Urabe] Exactly. If anyone autocratically decides the rules and forces the members to keep the rules, I assume the members would object. It's the same with the "power" of the state; the Constitution was made through the history of such "objection".

Even a King Cannot Do Whatever He Wishes

[Professor Urabe] Historically speaking, states structurally differ from clubs because they usually have certain people or families as leaders from the very beginning, who exercised power over other members. States appeared in their typical form in Western Europe. Western European states that existed before the modern nation-state differed from the conventional images of the state. States usually consisted of one very powerful "family" controlling its own territory. For example, there was the Hapsburg "family". The Austrian Hapsburg "family" controlled a territory far larger than the current Austria for a very long time. At that period, such territories of the royalty or aristocracies existed as units all over Western Europe. In such territories, the royalty or the aristocracy existed above the people, and governed the people based on their own will.

[Kenta] When lords controlled the people, that's exactly why people had a difficult time?

[Professor Urabe] The royalty and the aristocracy did exploit the people, but at the same time they protected the livelihoods of the people. So if the lord was respected then all was fine, but if he was a tyrant then people suffered.
Anyway, in course of time the power of the "King" who governed the lords started becoming more and more powerful. When that happened, the royalties, aristocracies, and the lords increasingly believed that it was important to place certain restrictions on the King's power since they thought it problematic that a King could do as he liked. That is in fact what triggered the birth of the constitution.

[Noriko] What do you mean by certain restrictions on the King's power?

[Professor Urabe] A classic example would be the Magna Charta that was established in 1215. The Magna Charta basically was a document that the feudal lords confronted the King with, demanding that he abide by it. The Magna Charta emphasized that even the King could not do whatever he wanted. The feudal lords claimed that there were ancient laws that guaranteed their rights, and forced the King to confirm with the document.

Even State Power is restricted in order to Guarantee Individual Freedoms and Rights

[Kenta] So the Magna Charta wasn't made to protect the rights of the citizens?

[Professor Urabe]The King was confronted with the Magna Charta to protect the rights of the feudal lords. However, the idea that even superior powers must obey the law was claimed by the middle class once the collapse of absolute monarchism allowed them to become more powerful. This lead to the modern bourgeois revolution, which denied absolute monarchism and also clarified the notion that even the power of the state could be restricted by law in order to guarantee individual freedoms and rights. A very good example is the Glorious Revolution in England (1688) and the French Revolution (1789). This drive was one of the main factors that lead to the birth of the modern constitution.

[Noriko] In fact, the idea that powers must obey law was claimed by the middle class, not the feudal lords, and this gave birth to the modern constitution.

We Entrust the Exertion of Power But Do We Abide by This

[Professor Urabe] There's another historical aspect that contributed to the creation of the constitution. This applies to the United States of America. America was initially an English colony. Basically, people who tried to run away from the King's power made this country. America did not have a King to start with, so the English settlers were to make their own country with a clean slate. In that regard, they decided to entrust the exertion of power to certain people in order to govern their country. The constitution was a condition of their entrustment.

[Kenta] So they needed to make a new constitution in order to make a new country.

[Professor Urabe]In America, the constitution was made as a contract between the people and those who exert the power on behalf of them. To govern a country, it becomes necessary to entrust the authority to make and impose rules. The people said "We entrust the exertion of power but please follow these rules". So the constitution is basically a document that sets down the certain rules that the people wanted those entrusted with authority to follow. Hence, the constitution is a commandment directed at those with authority.
The constitution was formed through the cohesion of these two notions: the English tradition that even those in power must obey the law dating back to the medieval times and the American mentality that one must document conditions when entrusting someone with power. This is the history from which the constitution was born.

[Noriko] It is said that the constitution restricts power, but I understand now its history!

Members of the parliament and public servants has a duty to respect and protect the Constitution

[Professor Urabe] "Constitutionalism" is what we refer to when we are talking about restricting power with the constitution. This means that in order to turn the wheels of society power is inevitable, and since we can't have every member of society exert such power we must entrust it upon certain people. In doing that, it is the constitution that the people declare to those in power as a condition of their entrustment. I believe this is how it should be understood.

[Kenta] The Japanese Constitution declares that members of the parliament and public servants must obey the Constitution. So that's what it means!

[Professor Urabe] Exactly. That is precisely what Article 99 of the Japanese Constitution means when it says "The Emperor or the Regent as well as Ministers of State, members of the Diet, judges, and all other public officials have the obligation to respect and uphold this Constitution". The Japanese Constitution is literally what the citizens declared to those in power as a condition for their entrustment of power. So of course, those in power must obey such conditions. The constitution is made of such characteristics in the first place, so written or unwritten, it's obvious that those in power have the obligation to respect and uphold this constitution. Thus Article 99 only confirms this obvious principle.

[Noriko] I've never thought of it that way, but the Constitution basically represents the conditions that we demand the government and the members of the parliament to abide by.

[Professor Urabe] In the recent debates in reforming the Constitution, there's a strong tone of argument that tries to deny this understanding of the Constitution, especially with the Liberal Democratic Party as well as the Democratic Party. In other words, they are trying to remake the Constitution into something that those in power make and demand its citizens to follow, instead of a set of conditions the citizens demand those in power to abide by. They are in fact trying to turn around the nature of the Constitution. There's no point in calling this a "Constitution" anymore. This is one of the biggest problems with the current constitutional reform debates.

[Kenta] We really need to ask our members of the parliament to understand what the Constitution really stands for.

[Professor Urabe] Definitely. In order to do that, the citizens must study the Constitution well, and I would like to do my best as well.

[Noriko] Thanks for your important lecture.