This paper explores the possibility of “political” constitutionalism as opposed to “legal” constitutionalism in Japan. The Japanese Constitution is a hybrid of British and American constitutionalism, the nature of which is political in the former and legal in the latter. Japanese scholars, however, have favored legal constitutionalism in favor of the American rights revolution. However, after Prime Minister Shinzo Abe took office in 2012, he repeatedly challenged the notion of legal constitutionalism. Shinzo Abe’s cabinet appeared to support political constitutionalism when it reinterpreted Article 9 to legitimize the long-prohibited right of collective self-defense. But what is political constitutionalism? How can informal constitutional change be legitimized? To answer this question, this paper focuses on the constitutional crisis in Australia in 1975, when Prime Minister Gough Whitlam was removed from office by the Governor-General even though he maintained the confidence of the parliamentary majority. It will show that the crisis can be appropriately defined as a clash between two types of constitutionalism: monism and dualism. The paper concludes that a strong conception of responsible government, backed by common law or its equivalent, is necessary to justify informal constitutional change through monism.

渡辺康行先生　退職記念

一橋大学大学院法学研究科

2023-07

日本語(jpn)

departmental bulletin paper（紀要論文）

VoR

10.15057/80114

1347-0388

AA1161370X

一橋法学

22

2

5

24

22巻2号(2023.7)

https://hdl.handle.net/10086/80114