2. PUBLIC LIFE
Public life refers to the social sphere of the Japanese people as far as related to the constitutional, administrative and procedural regulations of the official law.
(1) The Tenno system
The official Tenno system as stated in the preceding chapter is deeply rooted in the indigenous practices which accompany more varieties of the unofficial function of Tenno than are provided officially in Article 7 of the Constitution.40 For instance, when Tenno, Kogo (Empress) and often other Imperial Family members go out on trips or attend meetings, the official functionaries in charge are privileged to enforce security measures that may result in multiplying the routine duties of public servants concerned and regulating the freedom of private persons.
This has been often criticized as “building a wall between Tenno and the people.” In commemoration of a Tenno's visit, some people are obliged to preserve rooms, buildings, and important furnishings that he used, and trees that he planted; to display or distribute Imperial gifts to their families or close friends; to have specified persons promoted in court ranks and honours; and so on. In reality, Tenno cannot function without exerting any political influence, however slight, when seen from a broader perspective. The most striking case of this was the decision of the present Tenno to surrender to the Allied Powers (cf. Lu, 1974, II: 175–176). The decision was made under the former Constitution of an absolutist character. But, in reality, Tenno had usually been so reluctant in making his own decision that no other case has been known where his decision was voluntarily expressed. His decision to surrender is understood to have been made not by the power granted to him in the Constitution, but by his authority derived from the indigenous Tenno system throughout history. It was because this authority was appreciated to be “accorded with the will of the majority of the Japanese people,... likely to spare further bloodshed,...” that the Tenno system was finally determined to be retained at the surrender with all opinions otherwise (Oppler, 1976: 51).(2) Jinja
Jinja, with the function of matsuri, was truly deprived of its official legal nature which had been protected in the Meiji legal system, resulting in abolition of the State Shinto. At the same time the rapid development of Japanese society toward modernization and urbanization caused a falling tide of the Jinja Shinto. But this did not necessarily result in the disappearance of the indigenous practices of jinja.
The Tenno is still recognized as a Shinto priest to perform Shinto rites for the Gods of his Imperial Family. The principal shrine, Ise-Jingu, is the highest-ranked shrine in Japan. It is supported mostly by the people. But Tenno, representing the Imperial Family, also supports it from the Family funds authorized by the Diet, including expenses for his matsuri at Ise-Jingu, interpreted as an event of his family, not the state. Tenno thus enjoy certain indigenous rights and duties of jinja and matsuri.
Because of its close connection with Tenno, who is respected by people with a special authority, Ise-Jingu forms a remarkable target of national worship. Not only many private persons feel it their duty to visit the shrine, but also Cabinet ministers are socially obliged to visit it. The Prime Minister and other Ministers also feel obliged to offer worship to that shrine and another shrine called Yasukuni-Jinja, which a Christian Premier, Masayoshi Ohira, visited as well. Such practices violate, as many scholars maintain, the constitutional prohibition that “the State and its organs shall refrain from religious education or any other religious activity” (Article 20). They hold, however, their own justification, as is clear in the following case.
There has been such a strong opinion to legalize the supporting of Yasukuni-Jinja at national expense that the conservative party in power counts it as one of their policies.
Their justification of its constitutionality lies in that the jinja is not a religious facility but a cultural one, based on folk beliefs unrelated to religion. This kind of justification was finally approved by the Supreme Court in 1977 in a noted case of the Tsu City jichin-sai (a ceremony to purify a building site). The issue was whether the jichin-sai held by Tsu City with its public fund was an unconstitutional religious event or simply a constitutional convention. The Supreme Court decision was to terminate the conflicting opinions in favour of the latter.41 The essence of this interpretation is that which was adopted by the Meiji regime to enable them to compel people to worship the jinja, whatever religion they might believe in. Assuredly found in this is that the Japanese conception of religion would be difficult to understand from the Western point of view and that a kind of unofficial law may be functioning to undermine a provision of the Constitution to separate State from religion.Jinja Shinto is furthermore alive with its own unofficial law at each shrine in a community. Truly, in a sense, the declining of the shrine and its matsuri may be mainly affected by the recent modernization of Japanese society, as well as the official rejection of their support. But they are still surviving, although restructured with a tendency that “diffuseness is born of the derealization of Shinto belief and practice” (Morioka, 1975: 70). A revival of the matsuri is further found among big shrines famous for their spectacular events. And there are many miyaza (guild of a shrine) and local organizations to support community shrines. These shrines survive by a strong mutual tie among the inhabitants privileged to the shrines in the indigenously formed rights and duties to support their jinja and matsuri.42
(3) Established administrative discretion
The administrative authorities are empowered to exercise discretion with regard to the matters within their jurisdiction.
The discretion is to be exercised in accordance with the explicit provisions or principles in the legal system. Among numerous cases, discretionary practices are sometimes conventionally established to supplement, compete with, modify or even undermine the law. Examples are found among those of the tax office with regard to the assessment of the income of people and corporations, and of tax upon them; those of local governments to entrust private chonai-kai (town-block associations) with some official business in order to make direct contact with their citizens;43 those of the prosecutor's office not to prosecute a person who committed a misdemeanour for the first time; and many others.Some people might object to regarding these practices as a kind of law on the grounds that they are an application of law. But in actuality, many persons, not only private but often public, regard them as the standards of judgement, and adopt them as if they were official standards. From a behavioural point of view, they are a law functioning together with, or alternatively with, the official law.
An important characteristic common to all of them is that they were not established traditionally but rather have been established since the reception of Western law. They are an indigenous outcome of the reception, or as Hooker has it, “indigenous adaptation” (1978: 4–5). In truth, the above-mentioned Tenno system is another indigenous adaptation. We find here that indigeneity should be viewed in the mode of reception as well as of the contents of the received law – in other words, through assimilation processes.