The Constitution of Japan was promulgated on November 3, 1946, and came into force on May 3, 1947. Based on three major principles, this Constitution broadly guarantees the rights and freedoms of the people. Here, we organize the structure of the Constitution and the classification of human rights.
Basic Knowledge
The three major principles of the Constitution of Japan are ①popular sovereignty (Preamble・Article 1), ②respect for fundamental human rights (Articles 11・97), and ③pacifism (Preamble・Article 9). Fundamental human rights are defined as “inviolable, eternal rights” (Article 11). Human rights can be classified as follows. Liberties are rights that require the state not to interfere in individuals’ lives, including freedom of the mind (freedom of thought and conscience, freedom of expression, etc.), physical freedom, and freedom of economic activity. Social rights are rights that seek active guarantees from the state, including the right to live (Article 25: “the right to maintain the minimum standards of wholesome and cultured living”), the right to receive an education, the right to work, and fundamental labor rights. Political rights are rights to participate in politics (the right to vote・the right to stand for election・the right to vote in a national referendum). Rights of claim (such as the right to a trial and the right to claim state compensation) are also guaranteed. Human rights are subject to restrictions based on the “public welfare” in order to coordinate them with the human rights of others.
Three major principles (popular sovereignty・respect for fundamental human rights・pacifism)
Liberties (rights that prevent the state from infringing on individual freedom. Freedom of the mind・physical freedom・economic freedom)
Social rights (rights that seek active guarantees from the state. The right to live・the right to receive an education, etc.)
Right to live (Constitution, Article 25. The right to lead a wholesome and cultured life at the minimum standard)
Pacifism (Article 9. Renunciation of war・non-maintenance of war potential・denial of the right of belligerency)
Public welfare (a principle for coordinating contradictions and conflicts among human rights)
In Depth (Background・Significance)
The Constitution of Japan was established in reflection on World War II, under the guidance of GHQ (General Headquarters of the Supreme Commander for the Allied Powers). In particular, the renunciation of war in Article 9 has attracted attention as an unusual provision even by international standards. Social rights were a forerunner of the “new human rights” whose guarantees expanded in the 20th century; the German Weimar Constitution of 1919 was the first to codify them. In recent years, “new human rights” not explicitly written in the Constitution, such as the right to privacy・the right to a healthy environment・the right to know, have also been recognized on the basis of the right to pursue happiness in Article 13. Constitutional amendment requires the strict procedure established by Article 96 (approval by two-thirds or more of all the members of each House ＋ a majority in a national referendum).
- Promulgation: November 3 (Culture Day)・enforcement: May 3 (Constitution Memorial Day)
- Liberties are distinguished as “freedom from the state,” while social rights are “freedom through the state”
- The Weimar Constitution (1919) pioneered the right to live under Article 25
- New human rights (the right to privacy・the right to a healthy environment・the right to know) are based on Articles 13・25
- Constitutional amendment: approval by two-thirds or more of all members of each House of the Diet → a majority in a national referendum
- Fundamental human rights are “eternal and inviolable,” but are subject to restrictions based on the public welfare
- Article 9: ①renunciation of war ②non-maintenance of war potential ③denial of the right of belligerency
Points of Caution (Easily Confused)
① Do not confuse the date of promulgation with the effective date: promulgation was November 3, 1946, and enforcement was May 3, 1947. ② The direction of liberties and social rights: liberties are negative rights in which “the state does not interfere,” while social rights are positive rights in which “the state actively guarantees” them. ③ Judicial enforceability of the right to live: Article 25 is an abstract rights provision, making it difficult to directly claim specific benefits in court (as confirmed in the Asahi Litigation and Horiki Litigation). ④ Political rights are granted only to Japanese nationals and, in principle, are not guaranteed to foreign nationals.
Practice
- List the three major principles of the Constitution of Japan and indicate the main articles in which each is established.
- Explain the difference between “liberties” and “social rights,” focusing on their relationship with the state.
- What kinds of rights are “new human rights”? Give two specific examples and state their constitutional basis.