Subcommittee on Guarantee of Fundamental Human Rights (Fourth Meeting)

Thursday, June 5, 2003

Meeting Agenda

Matters relating to the guarantee of fundamental human rights (fundamental human rights and the public welfare, from the viewpoint of rebuilding the relationships between the state, the community, the family, and the individual)

After a statement was heard from Prof. KOBAYASHI Masaya concerning the above matters, questions were put to him.

Informant:

  • KOBAYASHI Masaya, Associate Professor, Faculty of Law and Economics, Chiba University

Members who put questions to Prof. KOBAYASHI

Main points of Prof. KOBAYASHI's statement

1. Public philosophy

>> "Public philosophy" is (a) a branch of learning which seeks to realize a dimension that is in some sense public; (b) a philosophy which is understandable to and widely held by the general public, and whose influence is real.

>> "Rebuilding the relationships between the state, the community, the family, and the individual" is one of the main themes of public philosophy, and in presenting my views on this subject I will speak from the perspective of public philosophy. That is to say, in contrast to the dualistic approach of liberalism, which recognizes only a public and a private sphere, I believe that there is an important role to be played by groups that are intermediate between the individual and the state (such as the family, the community, NGOs, and NPOs) and by a public dimension that extends across national borders.

2. Communitarianism

>> In the liberal versus communitarian debate in the United States, John Rawls's proposal, in A Theory of Justice, of two principles of justice centered on "the right and rights" brought liberalism to its height. Rawls's theory was criticized from the standpoint of communitarianism by Michael Sandel. Challenging the concept of an "unencumbered self," Sandel argued that the self exists in a particular community and cultural tradition, within which identity and character take shape; he also contended that value judgments about what is "good" cannot be avoided in the public sphere.

>> Since the fall of communism and socialism, libertarianism (free-marketism) and an egotistical, rights-centered individualism have flourished, resulting in a widening gap between rich and poor, market failures, moral decline, and a weakening of human relationships, among other ill effects. In contrast, communitarianism stresses the need for ethics and communality, looking to the community as their source. This should be carefully distinguished, however, from social conservatives' call for a return to the traditional community structures of old.

>> As an alternative to the existing theories of social democracy and the welfare state, communitarianism came to have an influence on the Clinton and Blair administrations, among others.

>> Communitarians are opposed to liberalism as an extreme radicalization of liberal thought. While rooted in the liberal tradition, the communitarian approach tries to maintain an ideological balance by reviving communality and ethics.

3. Rights, duties, and the Constitution

>> While stressing the need for concepts of duty and obligation, communitarians oppose excessive legislation of duties. In this respect, communitarian thought is closer to Confucianism than to the Legalist school of Chinese philosophy.

>> In the debate between liberals and communitarians, both sides share the premise of a modern constitution whose cornerstone is limitation of state power based on natural rights, a concept which dates back to the liberal political principles of the eighteenth century. Thus, communitarians do not advocate revising the constitution to add provisions stipulating duties.

4. Fundamental human rights and "the public welfare" in the Constitution of Japan, as seen from a communitarian viewpoint

>> Communitarian public philosophy addresses both moral and political concerns, as it calls for clean politics founded on moral principles while emphasizing the importance of the family and the community. From this position it would be intellectually and theoretically possible to develop a constitutionalist theory offering an ideal constitutional code, but this would require an across-the-board reformist approach encompassing the entire structure of the constitution, which would be premature at this time.

>> It is common practice to interpret the Constitution of Japan in liberalist terms. However, the concept of "the public welfare" in the present Constitution, the related concepts set forth in the MacArthur draft, and the government's replies regarding "the public welfare" during deliberations in the Imperial Diet all show that the Constitution of Japan has communitarian elements.

>> Putting a moral and ethical interpretation on the references to "the public welfare" in Article 12, Article 13, and elsewhere, we can say that, from the viewpoint of communitarianism, the Constitution of Japan is actually superior to that of the United States.

>> Further, if we take "the public welfare" to apply to welfare not only within the state but also within various intermediate groups, it becomes possible to interpret the Constitution in a way that addresses issues like the revitalization of the community.

5. The implications of public philosophy for the constitutional debate

>> An examination of human rights in the Constitution of Japan from a communitarian viewpoint does not automatically lead to the conclusion that the Constitution should be revised. This is particularly so when we observe that communitarians in the United States do not advocate constitutional revision, and that the Constitution of Japan makes explicit provision for "the public welfare."

>> Nevertheless, it is both possible and meaningful to attempt a communitarian interpretation of the Constitution. Responsibilities, the public dimension, and other areas that have received too little attention in the prevailing liberalist interpretation can be derived directly from the text of the existing Constitution (a text which by now has almost become a dead letter). Moreover, one can read into the Constitution the pursuit of public happiness (which is a tenet of public philosophy), the nonabsolute nature of the state, and a global frame of reference, all of which will be needed in the new era.

>> If we are to rebuild the relationships between the state, the community, the family, and the individual, the important thing is not to revise the Constitution but to bring out its latent meanings to the fullest possible extent, make them concrete, and bring them to life.

Main questions and comments to Prof. KOBAYASHI

HANASHI Nobuyuki (Liberal Democratic Party)

>> Recently, the press has featured comments on urban problems by architectural critics and the Mayor of Osaka, among others, along with various evaluations of "town planning." Also, in December last year, the Tokyo District Court's ruling in the Kunitachi high-rise condominium case stated that "preserving scenic value is a duty inherent in the right of land ownership"-an approach similar to that of Germany. In my opinion, we should establish a "right to create beautiful cities" in the Japanese Constitution. What are your views in this regard?

>> As part of a vision for Japan in the 21st century, I propose making clear provision for "environmental rights" in the Constitution.


MIZUSHIMA Hiroko (Democratic Party of Japan and Club of Independents)

>> Am I correct in thinking that communitarianism is the pursuit of happiness in a broad sense, that is, making the society in which we live better than it is ?

>> Would you please explain the position of tradition in communitarianism? Also, rather than viewing it as something that oppresses the people who live in a society today, can we liken tradition to a set of rules created voluntarily by the people who have lived in that society over the ages?

>> How do you define "morality"? What is it on a practical level? Further, does obeying moral principles enable the majority of individuals to be happy, or is it accompanied by suffering for some people?

>> I am in favor of allowing married couples the option of using separate surnames, but opponents often argue that this would not be "moral." I believe that morality means living by the rules of the community, and I do not see this as relevant to what surname one uses. I would like to hear your views on this point.

>> I like the idea of an active, participatory kind of morality, in which people free themselves from old moral conventions and create a new moral code of their own. What are your views in this regard?

>> I see communitarianism as seeking an active public spirit rather than a concept of "publicness" imposed by the state. Could you explain how this should be understood when it is applied to education?

>> You commented that "Social conservatives try to legislate values, but these attempts are counterproductive or have distorted effects." Could you give a concrete example of these distorted effects?

>> Am I correct in understanding your position as follows: instead of turning values into law, it is important to try to raise moral standards by pursuing the possibilities in those areas where we can take immediate action, and that laws should be enacted on specific measures where necessary for that purpose?


OTA Akihiro (New Komeito)

>> I think that the main current of the debate over constitutional revision is the argument that we should reexamine the Western values underlying the Constitution of Japan. In thinking about rebuilding the relationships between the state, the community, the family, and the individual, I would suggest that various non-Western values, such as the Buddhist belief in transmigration of souls or the view of humanity presented in WATSUJI Tetsuro's Ethics as the Study of Humanity, which sees human beings as living in symbiosis with nature and in relation to other people, do not in themselves lend support to the case for revising the Constitution; rather, they can exist within its present framework.

>> In the current debate over revision of the Fundamental Law of Education, there has been much discussion of "love of country" and "love of one's native place (patrie)." In my opinion, these are two different things. What is your view on this point?

>> In twentieth-century theories of the state, the "nation" and the "state" were regarded as one, but I think that in the twenty-first century these two will become separate, with "nation" referring to an ethnic unit while "state" refers to a political unit. What is your view on this point?

>> I think it is a problem of present-day Japan that, in the conflict between the public and the private, the family and the individual, which should be contributing to the public good, have both degenerated into self-interest. What do you think is the cause of this?

>> Given the present breakdown of the family, I think there is a tendency to turn too readily to the cohesive force of the state in order to rebuild the family and the community. How can we create an alternative cohesive force?


TAKEYAMA Yuriko (Liberal Party)

>> We are living at a time of great historical, cultural, and ethical change with regard to the individual and the public sphere. In thinking about the individual and the public sphere, what axes of reference does public philosophy provide?

>> I think that, unlike pluralistic nations such as the United States, Japan has a common soil, namely, its history and culture. Do you agree?

>> In Japan today, it seems to me that "town planning" is pursued regardless of its impact on citizens, and that tradition and culture are often lost in the process. We seem to be putting the market economy before the public welfare. Could you suggest what can be done to change this situation?

>> In concrete terms, how does the European concept of the public welfare differ from that of Japan?


HARUNA Naoaki (Japanese Communist Party)

>> Constitutional scholars have long used a limited interpretation of "the public welfare" as an adjusting principle among human rights. There are two possible reasons for this: (a) under the Meiji Constitution, the state reserved the right to impose restrictions by law; (b) even in the postwar era, the state has violated human rights from time to time, and "the public welfare" has been interpreted to suit the state's convenience. A classic example of (b) is the attempt to restrict human rights in the emergency-response legislation, which can be seen as an abuse of the theory of the public welfare. I would like to hear your view of the present political situation which forms the background to this attempt. Further, what answers does the communitarian position offer in order to overcome this situation?

>> Some people advocate establishing constitutional protection for the family in order to solve social problems such as the breakdown of the home. Yet, in reality, these same people are not interested in legislation designed to implement policies to protect family life, for example, by eliminating long working hours. Moreover, in advocating protection for the family, they seem to want a return to the prewar ie (household) system. To me, communitarianism appears incompatible with this school of thought. What do you think of this view of the family, and what response does communitarianism provide to counter such a trend?

>> In the "No-War Declaration," a statement opposing the Iraq war of which you were co-author, you wrote, "We earnestly desire that the right to live in peace declared in the Preamble and the spirit of renunciation of war embodied in Article 9 should spread throughout the world as a global public philosophy of peace and form the cornerstone of a life-affirming, peaceful civilization for the 21st century." Would you please explain this part of the statement in detail?


KITAGAWA Renko (Social Democratic Party)

>> You stated that, in contrast to social conservatism, communitarianism adopts the perspective of "forming the public sphere from the bottom up, from the level of the people." From this perspective, how do you view the present situation in Japan?

>> You said that communitarians do not see a dichotomy between the individual and the state, but see a number of intermediate groups, such as the family, the community, NGOs, and NPOs, as being situated between the two. Do these intermediate groups function to protect the individual?

>> You said that communitarianism does not go as far as to call for the dissolution of the state, but do you foresee that the intermediate groups will ultimately come to occupy a position equal to that of the state? Further, if that were to happen, would it be possible for many nations to share the ideal constitution that is envisioned by communitarians?

>> Am I correct in understanding you to say that "morality" extends into the sphere of "law and the constitution" with no boundary between the two? Also, do you consider this view to be different from the generally accepted understanding of modern constitutions? Further, if one adopts this view, I think tradition, and in particular the cultural climate, become an issue. I would like to hear your views on this point.

>> As I see it, a constitution is a set of orders given by the citizens to those who hold the power to govern. In your view, can a constitution be seen not just from this one-way perspective, but simultaneously from the perspective of political participation by citizens in the power to govern?


YAMATANI Eriko (New Conservative Party)

>> I believe that Japan today needs to make "connection" its key word, but the Constitution speaks only of the connection between present and future, as in the phrase "for ourselves and our posterity" in the Preamble; it does not mention the connection between the present and the past. I see this as problematic, and I would like to hear your views on this idea.

>> Last year, two events aroused a strong sense of community among the Japanese people: the World Cup soccer tournament, and the return of the abductees from North Korea. In my view, these were not examples of nationalism as defined by social conservatives, but I would like to hear your view of these events.

>> You noted that in advocating morality over law communitarianism comes close to Confucianism, but can Confucianism properly be considered a moral code? Or does it have a basis of religious sentiment which makes it very nearly a religion? Also, President Bush's Inaugural Address [State of the Union speech] contained these words: "Americans are [...] strong and decent, [...] because we hold beliefs beyond ourselves." I think that these "beliefs beyond ourselves" are a kind of religious sentiment, which transcends or lies deeper than morality. Perhaps we may have to make use of this. What is your view in this regard?

>> You said that from the communitarian viewpoint the Constitution of Japan is an ideal constitution, the crowning achievement among the constitutions of the world, but in light of the present breakdown in this country of ethics, religious sentiment, and morality, which are the prerequisites of law, this comment seems to me merely hypothetical and not particularly useful. What is your response?


HIRABAYASHI Kozo (Liberal Democratic Party)

>> When we focus on communities in thinking about the public welfare, because communities can take many forms, don't we need a different approach from that of present-day politics in order to reconcile the interests of different communities and make them convergent?

>> In party politics, I think that parties serve to elicit the ideas of communities and reconcile them from the viewpoint of the public welfare. What would you say was the ideal form of party politics from a communitarian perspective?

>> I think that all political parties should proceed from a common basis when considering the public welfare, but in practice each party emphasizes different aspects. I would like to ask your opinion as to how these differences in emphasis regarding the public welfare are affected when a community-oriented approach is adopted? Also, how is the view of the future affected?


KONNO Azuma (Democratic Party of Japan and Club of Independents)

>> I understood from your explanation that communitarianism rejects both excessive individualism and excessive government control. Recently, some people have argued that the breakdown of classroom discipline and related problems in the schools are caused by excessive individualism, and that there is a need for education to foster attitudes such as patriotism. I believe that what is happening here is an exploratory attempt to find a balance between excessive individualism and government control. Do you agree?

>> How do you think communitarianism should be put into practice in educational policy?

>> To me, the words "community" and "the public sphere" have connotations of state control and intervention. I hope for the creation of an open society, and to that end I think it is important to develop a concept of the public sphere on a global scale. What are your views in this regard?


NODA Takeshi (Liberal Democratic Party)

>> I think that modern constitutions have their origin in the relationship between the state and the individual. In the present Constitution, the emphasis was placed on the individual as a result of critical reflection on Japan's course in the prewar period, but, in consequence, the concept of crisis management by the state is lacking. What are your views on this point?

>> As a communitarian approach to reconciling public and private interests, you advocate a solution based on "the public welfare," but what does this involve in terms of actual content? Also, is it possible to reconcile interests solely by fostering a communal consciousness? How would you adjust conflicts between citizens or between individuals, which are not conflicts between the public and the private spheres?

>> You said that, according to communitarian thinking, the state will become increasingly relative. However, in light of such issues as the Middle East question, the state cannot be expected to disappear from global society in the near future. In reexamining the Constitution, don't we need the perspective of how to reconcile the interests of the state with those of the community or the individual?

>> Some people believe that putting the public welfare first means that we should not regulate the mass media, but in my view we should not allow the mass media, which are in a position of power, to go so far as to violate the human rights of powerless individuals. What are your views on this question?