In this seminal work, the authors argue that external others and the pre-constitutional past are essential to the analysis of constitutional founding, and by extension, to an understanding of current constitutional debates, in both Japan and Korea. In doing so, the authors challenge what they call the two existing “syndromes” surrounding constitutional discussion, namely the “autonomy syndrome” and the “tabula rasa syndrome.”
The first of these, the “autonomy syndrome,” is the belief that any external influence on the drafting of a Constitution somehow makes its legitimacy questionable from the standpoint of national sovereignty. Such a notion assumes that “We the People,” or the sovereign people that founds a Constitution, exist prior to the founding and that they make determinations free from external influence.
However, the authors point out that Constitutions frequently are made in the shadows of an external constituency. In what the authors call a “mutually constitutive relationship between the constitution and the people,” the “People” whose name a Constitution is written under is defined at the same time as it is being written, in negotiations that frequently involve external actors, events, and influences. Expanding on this point, the authors provide a detailed case-study of the Japanese and Korean Constitutions, and explore how their basic orientation has been defined by each nation’s relationship to the US.
In the case of the Japanese Constitution, Article 9, which renounces war and the possession of forces, has been a symbol of its pacifist orientation in a repudiation of Japanese militarism up to World War II. Yet its precise contours have always been influenced, and remain so today, by US foreign policy in Asia. Within a decade after Article 9 was written, with the emergence of communist China and a divided Korea (Korean War), the US decided to change its policy regarding armed forces in Japan. Accordingly, Article 9 went through a reinterpretation, in which the government argued that “minimal forces necessary for self-defense” were not precluded. Under this convenient interpretation, the Japanese Self Defense Force has steadily expanded its forces and capability.
In the case of the Korean Constitution, the author points out a similar dynamic surrounding its Economic Chapter, which at first emphasized social justice and equity in designing the nation’s economic system. In essence, it called for a state-regulated economy, rather than promoting economic liberty and protecting vested interests. Yet this provision was also influenced by regional interests of the US, in that the idea of free enterprise, free trade, and free market would prevail in the region.
The second syndrome discussed is the “tabula rasa syndrome”—the belief that a Constitution must establish a clean break from the past. By nature, a Constitution is written to define the emergence of a new political regime. Yet, the authors argue, this does not mean that Constitutions have to erase all legacies of the pre-existing order. Constitutions frequently contain vestiges of the old order, and it is only in recognition of this legacy that present constitutional identity can be forged. A Constitution has to be understood on the basis of this “simultaneity of rupture and continuity” (p. 129).
In the case of the Japanese Constitution, the focal point of discussion is Article 1, which defines the status of the emperor. In drafting a new Constitution, the founders had to repudiate militarism and deny the emperor worship which served as its backdrop, while at the same time choosing to retain the emperor as a symbol of national unity. The retention of the emperor in this manner was considered beneficial for the purposes of implementing reforms under the occupation. Thus, Article 1 defined the emperor as a symbol of national unity while he was stripped of all political powers. Meanwhile, this constitutional change was enacted according to the provisions of the Meiji (Imperial) Constitution, announced and promulgated in the name of the emperor, following the formalities of imperial orders under that Constitution. A dramatic change in political order was thus made possible by the continued presence and authority of the emperor.
In the case of the Korean Constitution, Article 1, which declares the nation to be a democratic republic, and Article 101, which provides for the punishment of national traitors, both reflect the legacy of the past. Article 1 serves as a repudiation of both the Japanese colonial rule and the monarchical rule which preceded it. Instead, it refers to a popular uprising in 1919 (though one which was short-lived and immediately suppressed) as a foundation of the Republic. Article 101 refers to Korean nationals who willingly collaborated with Japanese colonial rule. Yet, in fact, the government under the new Constitution had to be filled with people who collaborated with Japanese colonial rule. Critical branches of the government could not function without them. Thus, a legislative committee that was set up to locate and punish “national traitors,” as soon as it took its job seriously, was met with controversies and soon disbanded.
Both of these cases show that a clean break from the past has been illusory—whether from the authority of the emperor in the case of Japan or from Japanese colonial rule in the case of Korea. Rather, coming to terms with history and pursuing a change in constitutional order while adapting the vestiges of the past to current purposes have been the norm.
In the final chapter, the authors also present a historical study of the Japanese household registry system (koseki) and the way in which it served to both integrate and differentiate people who came under its jurisdiction. The authors show how the registration system operated on colonial subjects of the Japanese Empire (Koreans and Taiwanese) as a means of integration and assimilation into the Japanese family state system, and how the system was later used to exclude these subjects from the “peoplehood of Japan” (p. 232) prior to the drafting of the postwar Japanese Constitution.
In sum, the authors call for a broader perspective on reading a country’s Constitution. A Constitution has to be read with an understanding of the past, of the legacies that the founders as well as subsequent generations had to cope with, and of how they have utilized and adapted them to their current purposes. It also has to be read in the context of international relations. A Constitution not only establishes a national order, but also speaks to international order. The position of Japan or Korea in relation to the US, and within East Asian regional politics, has been a critical factor behind the evolution of the defining articles in their Constitutions—Article 9, in the case of the Japanese Constitution, and the Economic Chapter in the case of the Korean Constitution.
People find themselves and define themselves in relation to others and their collective rendering of the past when they write a Constitution. Further, this is an ongoing process, in which people continue to “self-constitute” through ongoing conversations over their Constitutions (p. 285).
This work should be much appreciated for this broader perspective on the meaning of “We the People.” It is also a rare and valuable work, for the authors have built a bridge between two nations that are sometimes seen as in conflict with each other, especially with regard to their histories. By utilizing a wide range of primary and secondary sources written in Japanese and Korean, they find convergences in the constitutional history of the two nations. It is fitting that the convergence is found in their relationship to the US—a reconciliation of the two national histories is conducted in the language of the postwar occupation of both.
