What exactly is the Constitution?
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)
"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
[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?
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
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