Article 9 of the Constitution of Japan and the Use of Procedural and Substantive Heuristics for Consensus

60 Pages Posted: 12 Mar 2009 Last revised: 11 Nov 2009

See all articles by Mark Chinen

Mark Chinen

Seattle University School of Law

Date Written: February 16, 2006

Abstract

Japan is considering changes to its constitution, including Article 9, which prohibits it from maintaining a military force. If amendments are made, it would mark the first time the Japanese constitution has been amended since its establishment in 1947. I examine the debates on Article 9 using scholarship on constitutions as providing heuristics for decision-making. Constitutions help overcome the problems of emotion and time-inconsistency. They also enable societies of different deliberative groups to avoid the pitfalls of deliberation by requiring groups to interact with one another and by providing opportunities for compromise through what Cass Sunstein refers to as incompletely theorized agreement. Drawing on work from J.M. Balkin, I argue such strategies and concepts share features common to all heuristic devices: they are cumulative, multi-functional, recursive, and lead to unintended results.

This theory jibes well with the process and substance of the Japanese debates. The debates on Article 9 are taking place within and among deliberative groups in Japan. The formal constitutional requirements for amendment combine with features in Japanese society to require the various groups to interact with one another. The cumulative, multi-functional, and recursive nature of heuristics emerge in the themes in the debate. These features make agreement hard because the deliberative groups are familiar with the arguments being made for and against amending Article 9. Yet, the same concepts could enable incompletely theorized agreement on key issues. Finally, the net effect of these tools is that possible solutions to the amendment debate will solve some issues now raised by Article 9, but will create others.

Keywords: Japanese law, comparative constitutional law

Suggested Citation

Chinen, Mark, Article 9 of the Constitution of Japan and the Use of Procedural and Substantive Heuristics for Consensus (February 16, 2006). Michigan Journal of International Law, Vol. 27, No. 1, 2006, Available at SSRN: https://ssrn.com/abstract=1357622 or http://dx.doi.org/10.2139/ssrn.1357622

Mark Chinen (Contact Author)

Seattle University School of Law ( email )

901 12th Avenue, Sullivan Hall
P.O. Box 222000
Seattle, WA n/a 98122-1090
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206-398-4040 (Phone)

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