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Essay and Opinion

Analyzing Today's Society from a Legal Viewpoint

May 24 , 2004

Prof. Asaho Mizusima (Waseda University)

I wonder what everyone imagines when they hear of "taking steps" and "following procedures". Today we can see tendencies of top-down decision-making and of undervaluing procedures throughout society. Even in today's society where massive amounts of information circulate at high speeds, decisions are made behind closed-doors. If you do not feel somewhat uncomfortable with such speedy top-down methods of decision-making, you probably lack legal intuition.
So, what exactly is the significance of "taking steps" and "following procedures"? These are both pearls of wisdom created so that those in power determine policies through democratic processes. In addition, the human rights articles of our constitution ordain an inalienable domain of which no power can violate even through proper "steps" and "procedures". In the legal world, such is the terminus ad quem of history. However, those presumptions crucial as premises for debate are being discarded.

Because it is a time of weakening civic virtues

The right to vote is essential in the democratic process. In principle, voting must be popular, direct, confidential, equal, and free. In a confidential vote, no one else finds out whom you voted for, and being able to vote anonymously holds a significant meaning. However, today we see how people abuse anonymity in a different domain ? cyberspace. Through taking on an anonymous identity, there have been increasing numbers of people who one-sidedly say whatever they feel like. The emergence of this problem should not necessary lead to regulation of speech, but it is a good example which depicts how civil virtues have degenerated.
The degeneration of civil morale can be seen throughout society. For example, when we learn about the principle of good faith we have to start from why such an idea exists in the first place. This may sound slightly exaggerated, but I have even seen a specialist not knowing what to say when questioned, "Why shouldn't we kill other people?" This is the deplorable reality ? we encounter situations where we actually have to explain those previously unspoken assumptions. "We must not violate human respect or dignity". Behind these words are the cruelties and atrocities committed during the Second World War. However, people have faltered in seeking the real meaning behind these words in the sense that they have not been tracing the history behind. We are paying for our lack of attention now through degenerating morals. Before we study our Constitution or our laws, we must commence the exhausting process of reconsidering history.

Directing our attention to the discrepancies between the Constitution and the real world

We often hear slogans calling for the integration of our constitution into everyday life. Although that sounds soothing to the ear, in reality things aren't as easy as they seem. The Constitution is an important device that makes the lives of living people trouble-free. However, thinking that the Constitution is "something that all of us must obey" is a big mistake ? it is meant to be "something that certain people in power must adhere to". The underlying mentality of suspicion is that we should constantly check those in power since they do not always act under good faith. Thus the Constitution is really a set of rules that restricts the powers of the state, and it is disturbing and worrying that many recent debates have forgotten this point of origin.
For example, the finalized Yomiuri Paper's proposal of Constitutional Amendment is based on an inversed premise of "making everyone adhere to the Constitution". Japan's most circulated Yomiuri paper is praising its own Constitutional Amendment proposal ? this is not even amusing.
When we talk of Constitutional Amendment, we tend to get into two-forked arguments for and against amendment, but what is more important is to consider how we want the Constitution as the cornerstone of society before we start such debates. What is the Constitution in the first place? As such premises for debate is being undermined, we must first preserve and maintain the forum for the Constitution, or else we are most likely to be left with a Constitution which no one adheres to.