立憲的平和主義の再考

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I insist that Professor Hasebe's thesis harbors within itself a valid understanding that the Constitution cannot endorse any absolutist and controversial moral position which can be neither supported nor shared by the great majority of the people. Thus, he argues for the incompatibility between costitutionalism and the "absolute-pacifist" reading of Article 9. But this line of argument at the same time begs questions regarding how one would appropriately define both constitutionalism and pacifism that are presupposed in the Japanese Constitution. I basically approach this problem of definition with the premise that constitutionalism first and foremost signifies "constitutio libertatis" (constitution of liberty), as a medieval lawyer Henry de Bracton, for instance, understood it. While appreciating deeply the significant contribution of Professor Hasebe's theory of constitutionalism, this article has questioned whether or not his "overlapping consensus" model of constitutionalism is too truncated and one-sided. Furthermore, I have tried to understand the postwar Japanese constitutional pacifism in the historical perspective of a theory of constitutional development. Thus, the postwar Japanese constitutional pacifism makes sense and becomes understandable in light of the historical development of the twentieth-century constitutionalism. For it clearly has incorporated such constitutional moments as anti-fascism, anti-militarism, outlawry of war, and "permanent" - if not "absolute" - pacifism.

立憲的平和主義の再考

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