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Farewell to Pacifism the Changing Facet of Japan's Constitutional Identity

Part Name
Articles
Title
Farewell to Pacifism the Changing Facet of Japan's Constitutional Identity
Author(s)
Duc Tien Nguyen
Publication Year
30-Nov-2020
Citation
Vol. 10 Issue. 2 Page. 343-388, 2020
Publisher
한국법제연구원
Keyword
Constitutional theory; Constitutional law; Constitutional identity; Constitutional dialogue; Constitutional change; Comparative law; Pacifism; Japan’s Constitution.
URI
http://www.klri.re.kr:9090/handle/2017.oak/9798
Abstract
The term ‘constitutional identity’ has gained increasing popularity
in constitutional jurisprudence. However, it remains a contested concept
that accommodates diverse approaches to both national and transnational constitutional
issues. Drawing on Gary Jacobsohn’s work, the article will outline a
theoretical framework to locate the identity of a constitution through a comparative
law lens. To put it in perspective, the article argues that pacifism – lying at
the heart of Japan’s postwar Constitution– may be considered a constitutional
identity of Japan. On top of it, this identity is gradually changing. The article
attempts to capture its dynamic by probing recent constitutional discourses on
Japan’s self-defense stance.
Table Of Contents
I. Introduction
II. Towards a Theory of Constitutional Identity
A. Constitutional Text as a Starting Point
B. “Bounded Fluidity” – a Contextual Reading
C. Constitutional Disharmony and Dialogical Articulation
III. Critical Reflection on Constitutional Identity Theory
A. National Identity and Constitutional Identity
B. Beyond the Juri-centric Mindset
IV. Pacifism as Japan’s Constitutional Identity
A. Article 9 and Its Original Intent
B. Article 9 in Context and Its Dynamics
V. Concluding Remarks
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