Abstract
Democracy and constitutionalism are usually regarded as indispensable elements of modern constitutions. Some constitutional scholars and political scientists, however, argue that constitutionalism and democracy are mutually incompatible, and that one or the other must be preferred. Particularly in Japan, both the constitutionalist and the most influential of the democratic positions presuppose that democracy is nothing but majority rule. Thus these scholars observe that in a parliamentary cabinet system a political opinion of the Prime Minister, who is the head both of the Cabinet and of the ruling (majority) party, clashes with jurists’ or lawyers’ ideas or interpretations regarding that country’s constitution, thus showing that constitutionalism and democracy are incompatible. On the other hand, the layperson unfamiliar with political sciences or constitutional studies takes for granted that democracy and constitutionalism are compatible with each other; but there are few powerful arguments why democracy and constitutionalism are compatible with each other. I shall attempt to rectify the omission in this paper. Above all, despite the persistent idea of democracy as majority rule, majority rule is not a characteristic of democracy, as Popper has argued. Popper’s theory of democracy, therefore, may provide a solution allowing for both democracy and constitutionalism as compatible elements of a constitution.
Its [The state’s] ultimate purpose is not to exercise dominion nor to restrain men by fear and deprive them of independence, but on the contrary to free every man from fear so that he may live in security as far as is possible, that is, so that he may best preserve his own natural right to exist and to act, without harm to himself and others. It is not, […], the purpose of the state to transform men from rational beings into beasts or puppets, but rather to enable them to develop their mental and physical faculties in safety […]. Thus the purpose of the state is, in reality, freedom.
(Spinoza, Theological-Political Treatise, Chapter 20, 567)
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Notes
- 1.
The second Abe Cabinet reinterpreted the current Constitution, and allowed the use of the right to collective self-defense for the first time and then approved security bills. Against the Abe Cabinet decision, almost all constitutional scholars have been opposed to the reinterpretation as unconstitutional and as against constitutionalism. Besides, the Cabinet Legislation Bureau in Japan has conflict of interests, playing the role of judicial review while being an office of the executive branch. These problems will lead to a reflection on the relationship between democracy and constitutionalism.
- 2.
The phrase, “constitutional democracy” is often used as the title of various books. See my references.
- 3.
Kis (2003) is exceptional, but regrettably he does not use Popper’s theory of democracy.
- 4.
In the current Japanese Constitution governors imply the members of government such as Ministers of State, members of the Diet, judges, and all other public officials, and the Emperor or the Regent as well (Article 99). They are public officials.
- 5.
Okoth-Ogendo (1993), 65–82 .
- 6.
Ibid., 78–79.
- 7.
Faundez (1993), 358 .
- 8.
Russell (1922), 63–64 . Italics are mine.
- 9.
In constitutionalism some limitations of the supreme power is vitally important. In the past the supreme power was a king (Tenno in prewar Japan). Now in Japan the Diet is the supreme organ of the state power. From a constitutionalist point of view, therefore, it is important to limit the Diet’s power by any means.
- 10.
Higuchi prefers constitutionalism to democracy. For him democracy is a vague and empty concept, because modern dictatorship has not denied democracy. Stalin purged people’s enemies in the name of people. Hitler seized power by democratic means of popular election. Higuchi (2000), 84–86.This is a bad argument. In order to overcome some equivocal ambiguities of the concept of democracy, all you have to do is to distinguish the views of democracy into democracy1, democracy2, and so on, and critically examine them. See Tachibana (2015), 40–47.
- 11.
Such poor understandings are shown from Prime Minister Abe’s following utterances: He said in his response at the Budget Committee of the lower house of the Diet, February 3, 2016, that constitutionalism is to limit king’s power and it is unnecessary in Japan which is a country of democracy; he said in his response to the same Committee, May 16, 2016, that the Prime Minister is the head of the legislative organ (actually the executive organ). His remark shows the problem of the parliamentary cabinet system and malfunctioning of the Diet.
- 12.
Higuchi (2000), 74–75 .
- 13.
The technical term, “Taishō demokurashī” is automatically translated into “Taishō democracy”, but this translation is misleading. See Tachibana (2015), 37–51.
- 14.
Higuchi (2000), 75–76 . In his earlier book, however, he develops an argument against the view of the Meiji Constitution with constitutionalism, by appealing to the significance of Article 16 of the Declaration, and concludes that the Meiji Constitution is “Scheinkonstitutionalismus”, a term which Higuchi does not use in his book of 2000, and makes the criticism that so-called “Rikken-shugi [constitutionalism]”, or “Rikken-seiji [constitutional government]” are not the same as the corresponding ideas after World War II. Higuchi (1989), 23–43. On this point there is a great disparity between his book of 1989 and that of 2000.
- 15.
OMP (1888), p. 157. Italics are mine.
- 16.
There is a metaphor that Tenno is the king of “shogi”. All shogi pieces excepting the king piece are just the means of the king’s survival in order to win the game. This metaphor is clearly against constitutionalism. Besides there is a penetrating remark that Ito and other political leaders really wanted to be professional shogi players who can freely move the emperor like the piece of king and other pieces as if they were puppets. They wanted to utilize the Tenno system as the tool of their political ambitions. Tanaka (2000), 55–58.
- 17.
Higuchi (2000), 84 .
- 18.
For Popper closely examines various cases of end and means from his moral point of view. Popper (1945), 161, 623–24.
- 19.
If you favorably interpret Higuchi’s constitutionalism, the limitation of power is simply a means to attain the aim of securing the guarantee of the rights, the latter not mentioned as a matter of course.
- 20.
In the current Constitution the rights are explicitly prescribed as fundamental (Article 11). The provision on fundamental rights is also stated as one of the Supreme Laws (Article 97). I do not insist that there is no room for what is included as the fundamental right, but it seems evident that freedom of thought, which naturally includes freedom of speech (freedom to criticize), is at the heart of democracy.
- 21.
Bobbio (1987), 156 . Incidentally, Dahl , a prominent theorist of democracy, admits that Popper is right and excuses himself that in his book, “Who Governs?” he considers not only ‘who’ but also ‘how’, in response to Bosetti’s sharp and frank question: according to Popper, Dahl’s question who governs is a wrong one and should be replaced by the good question of how to control the ruler, and whether Dahl is ready to correct his view of democracy. Dahl (2002), Japanese translation, 45–47.
- 22.
Cheibub et al. (2010), 68, note2.
- 23.
Przeworski (2003), 12–13, 16 .
- 24.
Mentioning Popper, Przeworski says: I came to this conception of democracy as a result of the 1973 coup against Allende in Chile. I realized how important democracy is and that any policy that may undermine democracy is irresponsible, because it may lead to mass murder. My minimalist view of democracy dates from that experience. […] That was a major transformation in my thinking. Przeworski (2007), 475. Bobbio says: I have never forgotten Karl Popper’s dictum according to which the essential distinction between a democratic state and a non-democratic one is that only in the former can citizens get rid of their government without bloodshed. Bobbio (1987), 41–42.
- 25.
Rijpkema (2012), 93–96 .
- 26.
Ibid., 93. Italics are mine.
- 27.
Ibid., 94–95.
- 28.
Popper (1945), 602–603. Italics are mine.
- 29.
Popper (2016).
- 30.
Popper (1945), 123. Italics are mine.
- 31.
“It” here designates that the majority of the people clamours for a tyrant.
- 32.
Popper (1945), 125. Italics are mine.
- 33.
This precise formulation of Popper’s theory of democracy is Magee’s . Magee (1994), 80.
- 34.
Murphy says: It is far easier for losers to accept the results of elections if they know that they will soon have other chances to gain governmental power and in the interim will retain their basic rights to life, liberty, and property. If democratic politics were played by the rules of the ancient Mayan version of basketball, which allowed the victors to eat the losers, each election would be followed by civil war. Murphy (2007), 11. Italics are mine. His remarks really resemble Popper’s view of democracy.
- 35.
Spinoza (1677), 718 .
- 36.
Ibid., 752. Italics are mine.
- 37.
In Spinoza’s theory of democracy you find there is a seminal idea of the democratic control of the ruler by the ruled.
- 38.
Though I use the term “popular election”, women and slaves had no right to vote or stand for election at that time. “Popular election” is so ambiguous that we commonly use “universal suffrage”. The transition from limited suffrage to universal suffrage is clearly the process of democratization after democracy in Popper’s sense. As Agassi points out, even the present world suffrage is not yet “universal” suffrage. Universal suffrage is the antonym of limited suffrage, but so-called universal suffrage has some age limit, and therefore, the suffrage cannot be regarded as “universal”. I think Agassi’s proposal for the abolition of age restriction is worth considering. Agassi (1977), 350.
- 39.
See text to note 32.
- 40.
In the current Constitution there is an article on the right to choose and to dismiss the public officials (Article 15). See also note 4.
- 41.
Popper (1945), 125. Italics are mine.
- 42.
Popper (2016). Italics are mine.
- 43.
Ibid.
- 44.
Though Popper concedes that compromise has a pejorative meaning, he values the usefulness of a compromise in democracy, by saying that there will be a possibility of reaching a reasonable compromise and therefore of achieving the improvement by democratic methods, and says that it is important for us to learn its proper use. Popper (1945), 159. Italics are mine.
- 45.
- 46.
- 47.
Hasebe (2011), 12–13. Italics are mine. Murphy succinctly summarises such a conflict or clash: In constitutionalism every exercise of governmental power should be subject to important substantive limitations and obligations; representative democracy would impose few substantive limitations on the people’s freely chosen representatives. Murphy (2007), 6–7 . Italics are mine. This is also not an incompatibility thesis because “few” does not mean “nothing” but “something”.
- 48.
Hasebe seems to regard that in democracy the representative government can be justified by popular sovereignty. But according to Popper’s theory of democracy this view is beside the point. Popular sovereignty may be seen as a regulative idea, whose standard no extant government yet satisfies. It is better to use the concept of popular sovereignty negatively to eliminate even the majority as not true sovereign. See Tachibana (2015), 46–47. I propose a way to integrate the theory of popular sovereignty with Popper’s theory of democracy.
- 49.
Concerning authoritative interpretation of constitution or constitutional amendment there are serious problems, but they are out of the extent of this paper.
- 50.
On the differences of democratization before and after democracy, see Tachibana (2015), 45.
- 51.
In the current Constitution popular review of the Supreme Court justices is prescribed (Article 79–2).
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Tachibana, K. (2017). How Can We Attain Both Democracy and Constitutionalism?. In: Bar-Am, N., Gattei, S. (eds) Encouraging Openness. Boston Studies in the Philosophy and History of Science, vol 325. Springer, Cham. https://doi.org/10.1007/978-3-319-57669-5_26
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