2. CONSTITUTIONAL LAW

(1) The Tenno System

The Tenno is truly deprived of not only the absolutistic authority he had enjoyed under the Meiji Constitution, but also his entire legal power and political influence.

Still, the Tenno is situated in the Constitution. Moreover, the Tenno provisions occupy such an important part of the Constitution that they are covered in the first eight Articles. One of them guarantees the “dynastic” succession of his Throne “in accordance with the Imperial House Law²⁵ passed by the Diet” (Article 2). Another one guarantees the possibility of establishing a Regency when needed (Article 5). The Tenno is systematically instituted in the Constitution, the basis of the whole Japanese official law. His position and capacity are really provided legally to entail some kinds of rights and duties in a broad meaning of the Hohfeldian scheme, while some strict legalists insist upon no legal rights of Tenno being written into the Constitution. There is good reason why some people are convinced of the continuity of the Tenno system, which might mean the failure of democratization in Japan.

Accordingly, the Tenno system under the present Constitution might be dubious in its character, as Noda states that “the present regime is neither monarchic nor republican, but it can be interpreted either in a monarchic or republican sense...” (1976: 70).

(2) National Holidays

One law among those belonging to the Constitution, brief but most closely related to the daily life of the people, is the National Holidays Act promulgated and enforced in 1948. It provides twelve holidays.

Among the twelve, the only one that can be regarded as mostly received in nature, is Constitution Day, for it was instituted after World War II to commemorate the enforcement of the Constitution with the received postulate of democracy.

All the others are rooted in indigenous traditions in history and society. New Year's Day, Vernal Equinox Day, Autumnal Equinox Day, and Labour Thanksgiving Day originated from folk customs inseparably connected with purely indigenous, Confucian, Buddhist and/or Shintoist practices. Their justification having been recognized, they were instituted as National Holidays under the Meiji Constitution though with different names. In contrast, Coming of Age Day and Children's Day are new under the present Constitution, but initiation ceremonies and festivals for children had been established folk customs much like the above-mentioned four. The remaining three, National Foundation Day,²⁶ Tenno's Birthday and Culture Day, were legally initiated under the Meiji Constitution for their fundamental significance in celebrating the anniversary of the nation's foundation, Tenno's birthday and the commemoration posthumously of the achievements of the Meiji Tenno. They may have been promoted by received practices, but their matrices were derived from the indigenous national understanding of the nature of Tenno and the nation, with the exception of Culture Day, which was converted after the war from the birthday of the Meiji Tenno to a day of culture and peace as declared in the new Constitution.

The National Holidays are thus by and large an indigenous elaboration assimilating received factors of varying degrees.

(3) Gengo

Gengo, also called nengo in Japanese, is the name of an era under the reign of a Tenno. This practice was originally received from China. Taika was the first gengo officially adopted in 645 when the Throne was defended by a loyal prince and a noble. From that time on until the Meiji Restoration it was used as the only way of reckoning the year, officially or otherwise, and so took on an indigenous character. Under the Meiji Constitution, its use was officially instituted with the principle of “A Tenno, a Gengo” by a specific law, while two other systems also became prevalent: the indigenous way of Kigen, whose first year begins at the year of the accession of the first Tenno Jimmu and runs continuously through succeeding reigns,²⁷ was favoured more by the government; and the received way of the Christian year favoured to a lesser degree among the people. After the war, the Kigen system collapsed, for it was inseparable from absolutist ideology. Gengo also lost legal protection due to its connection with the Tenno system, though it is still used both officially and unofficially. The use of the Christian year has increased in popularity.

Faced with this fact, those who preferred the indigenous gengo to the received system, whether nationalistically or not, attempted to protect gengo by law. They were successful in instituting it officially into law in 1979. The specific law, however, provides nothing more than the principle of ^UA Tenno, a Gengo” without any official obligation to the government and the people to use the gengo system. Whether gengo will continue in its present usage along with the alternative choice of the Christian year, or become obligatory by law in the future, remains to be seen. Nevertheless, there is no doubt that this indigenous practice has recovered a position in the official law.²⁸

(4) Court ranks and honours

The old Twelve Grades of Officials instituted by Shotoku Taishi initiated the Japanese official system of status hierarchy.

Some years after recovering independence, a similar system of court ranks and honours revived, the highest of which was granted to the late Premier Shigeru Yoshida. Its constitutionality is advocated by the government against popular opinions otherwise.

(5) Some others

a. Paternal unilateralism of nationality

The Nationality Law, promulgated and enforced in 1899 and wholly revised in 1950, adopted a paternal unilateralism to give newborn children Japanese nationality, while it opened the way of nationalization for those of foreign nationality. But until recently the principle was never questioned because the indigenous way to recognize the social qualification of newborn children had been primarily that of paternal unilateralism, supported by the ie-seido under the Meiji Constitution. Although it is still legal, doubts as to its reasonableness have arisen. The reason is mainly the increasing number of children born to women of Japanese nationality married to foreigners whose children are denied Japanese citizenship due to this principle. The indigenous principle is destined, as I expect, to yield itself sooner or later to a received one of bilateralism by giving those children Japanese nationality.

b. Exclusion of foreign teachers from schools

No law has ever explicitly prohibited Japanese schools from hiring foreign teachers. Actually many foreigners have been hired by schools of various levels. But, as far as the national and public universities are concerned,²⁹ the foreign teachers have been part-timers except in rare cases of full-timers at minor universities.

c. Protection of minorities

Japan has been noted for national homogeneity, not only culturally but also racially, with the exception of a few minority groups.³⁰ The most noted is the Ainu whose homes are scattered in Hokkaido. They are known for traditional poems based on their own religious system. But their indigenous law has never been remarked upon nor surveyed by Japanese scholars, although its existence is evidenced by two facts. One is the brief description of B. Z. Seligman that “the patrilineages are territorial corporate groups, formerly owning defined areas where they held the sole rights of hunting, fishing and collecting^,, and related explanations (Munro, 1963: 157, cf. 141–158). The other, relevant to the discussion here, is the Hokkaido Native Tribe Protection Law, promulgated and enforced in 1899, to specifically validate the personal and collective ownership of their traditional lands. The effectiveness of the Law is dubious, for as a matter of fact the indigenous law of the Ainu seems to have been almost lost.

Another example is buraku or burakumin (hamlet people, or people of special hamlets), a matter of contemporary controversy. They are said to be the descendants of outcasts of the feudal ages.³¹ After the Meiji Restoration they were legally emancipated. But, as practices of social discrimination before the law have not disappeared, the Act of Special Undertaking for Dow a (de-discrimination) was promulgated and enforced in 1969 to promote national and local governments to undertake various measures effective in annihilating discrimination of burakumin. The law is to protect a constitutional principle by regulating an unconstitutional, unofficial law of discrimination.