The Constitution Has a Lot to Teach Us About Human Rights and Personal Freedom

When it comes to the issue of gender equality, the idea that it's nonsensical for women to not have the right to vote began spreading around the world in the first half of the 20th century.

It was around the same time that Japan lost the Second World War, and one of the conditions of surrender that the Allied forces had was for Japan to properly effect human rights norms.

Yes. It would have been difficult to meet the demands of the Allied forces had the Constitution not been changed.

At first, Japan's most respectable constitutional scholars were brought together to produce a draft. However, when the Supreme Commander for the Allied Powers (SCAP) reviewed the proposal being drafted by the Japanese governmental committee, they decided it didn't meet their standards.

It's important to note that the SCAP was a bit different in nature from the occupation forces. It is believed that they put some genuine thought into what would be necessary in order to implement fundamental human rights in Japan.

The Japanese government then went along and committed to dedicating effort into implementing the ideal of human rights. That's why a document written over 70 years ago contains such progressive ideas regarding human rights.

I think that's part of it. The thinking at the time was that countries that didn't value human rights would naturally be inclined to commit horrific acts in times of war.

But in addition, it seems there was also a different chain of events that led to the provisions on gender equality.

At the time, there was a translator in her early 20s working for the SCAP named Beate Sirota Gordon. Although she was mainly in charge of translation, it is widely believed that she had tremendous influence over the drafting of the Japanese Constitution.

Beate had first-hand experience living in Japan and was well aware that Japanese women were not being given even the bare minimum respect they deserved—whether at home or throughout society at large. Her first-hand experience of that situation is what lead to the fairly strong gender equality provisions that are in the Constitution today.

Yes. Also, it was a period of history when everyone was burning with idealism, which I think fueled the desire to draft a progressive Constitution.

It seems like several fundamental principles of the Constitution—namely that individuals have rights and that the private sphere of individuals shall not be violated by others—have not yet taken root in our society.

I actually came across something strange the other day regarding these cases of improper school regulations. I saw an argument that school regulations should be decided by the students themselves rather than their teachers.

However, just because the rules were decided by a student committee doesn't make them more legitimate.

For example, one of the weird rules in some schools is that all underwear has to be white. Even if such a rule had been enacted by a student committee rather than the school administration, it wouldn't be grounds for restricting the rights of those who disagree with the rule.

We tend to believe that because the students decided to enact the rule, it must be legitimate. However, I think there is also some understanding of the fact that even though a decision is made democratically, it can still be a violation of the personal freedoms of individuals.

Yes that's correct.

However, setting aside majority rule, the idea behind the Constitution is that some decisions should be made by individuals on their own, whereas others should be taken by everyone.

When it comes to matters of personal freedom, such as your choice of clothes, there needs to be more education around that fact that regardless of whether the decision is made by the school administration or by a student committee, your decisions should generally not be restricted based on unreasonable grounds.

It's important we learn about the law from a young age. I want people to get used to saying "this is wrong" when they are forced to do something they think is inappropriate.

Just as in the previous example of school regulations, it's important to be aware of what decisions should be made my majority rule, and what decisions shouldn't.

One way is trying on purpose to come up with situations where it would be absurd to apply majority rule. For example, try saying, "Let's all vote on what person X should watch on TV tonight!"

Japanese courts are allowed to write whatever justification they please for their judgments, so there are bound to be cases in which those justifications can seem a bit peculiar.

When a judge intends to deliver a verdict that they reached as the result of a logical process, the ensuing justification will be built upon a strong theorical base. However, in cases where the judge decides that the conclusion isn't to be reached through logic—when they just don't really want to engage in the case—the ensuing justification can become a mess.

That's how, based on the soundness of the logic provided in the justification, you can deduce just how much the court hated that particular case. And of course, decisions that were not reached through a logical process deserve their fair share of criticism.

My theory is that courts are constantly worried that the rule of law is on the verge of collapsing, and therefore they need to dedicate their best effort to protecting the rule of law.

Protecting the rule of law basically just means doing things by the book. The idea is to have general rules prepared in advance, and then to simply apply those rules to reach individual decisions.

The rule of law works as long as nobody feels like there are any discrepancies in the interpretation of the law, and therefore there is no need for a trial.

However, when confronted with an issue like the constitutionality of denying married couples the right to have separate family names, that's no longer possible.

Yes, and as a matter of fact, such situations show that this project—establishing rule of law by handling cases in accordance with a clear set of pre-determined rules—is falling apart.

No matter how clear a legal text may seem, there will always come a point where we will see differences in interpretation.

The question then becomes one of what to do in those situations. In cases where it's unclear what the law says, if there isn't an effort to uphold the rule of law, there is a risk of decisions being made without basis in law or legal theory.

In order to prevent that from happening, the judiciary is tasked with arguing that if a certain judgment is reached, it would threaten to breach the last line of defense of the rule of law—and therefore the judiciary curtails that judgment.

The rule of law is showing signs of failure. However, the judiciary still has to do its best to make decisions in line with the principles of the rule of law, so that everyone can accept those decisions as having been made in accordance with the law.

That's why the reasoning underlying the final judgment has to be persuasive; because judges need to be able to deliver their decisions with assertion.

The costs would be enormous.

Fair enough. People can just buy their own sandwich.

Absolutely, effecting the law requires a solid understanding of its purpose.

That's way it's standard in law school to explain to those learning about law that "this provision exists to serve this purpose."