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TitleHuman Rights Constitutionalism in Japan and Asia (Writings of)
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Table of Contents
                            Table of Contents
Preface
PART I: ASIA
1 Constitutionalism in Asia and the United States
2 Current Human Rights Issues in Asia
3 Constitutionalism and Rights in Japan and Korea
4 Comparative Perspectives on Human Rights in Korea
5 Human Rights Theory and “Freedom Culture”
PART II: JAPAN
6 Japan, 1969: “My Homeism” and Political Struggle
7 Social Patterns and Freedom of Expression
8 Human Rights Commissioners (Jinken Yogo Iin) and Lay Protection of Human Rights in Japan
9 Constitutional Revolution in Japanese Law, Society and Politics
10 Freedom of Expression: the Continuing Revolution
11 Japan’s Constitutional Law, 1945–1990
12 National Security and Freedom of Expression in Japan
13 Rejection of War: Japan’s Constitutional Discourse and Performance
PART III: THE FUTURE
14 Conclusion: Towards Human Rights Constitutionalism in Asia and the United States?
15 Afterword: Asian Constitutionalism in the Twenty-first Century
Appendix: Adventures with Asia: Studying Human Rights Constitutionalism Here and There
Bibliography
Index
                        
Document Text Contents
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Human Rights Constitutionalism in Japan and Asia

The Writings of Lawrence W. Beer

Lawrence Ward Beer was born in Portland, Oregon on May 11, 1932. In 1966 he received the Ph.D.
degree from the University of Washington, Seattle. In over fifty years of studying the constitutional
law and politics of Japan and other Asian countries, he has written and lectured extensively on
human rights law (e.g., Freedom of Expression in Japan, 1984). He taught at the University of
Colorado, Boulder, 1966–1982, and was F.M. Kirby Professor of Civil Rights, Lafayette College,
1982–1997.

Lawrence W. Beer has chaired the Committee on Asian Law of the Association for Asian Studies
and the World Association of Law Professors of the World Peace through Law Center. He received
the Distinguished Asianist Award of the Mid-Atlantic Association for Asian Studies in 2003.

In retirement, he lives with his wife Keiko in Boulder, Colorado, USA.


Less noticed in the West than wars, terrorism and economic trends has been the historic develop-
ment since World War II of constitutional government and law in Asia. Lawrence W. Beer has been a
close observer of Asian linkages among law, politics, culture, and national security issues for over
fifty years. His perspectives have been refined during long residence in Asia, especially Japan, by
substantial friendly interactions with Asian legal scholars, judges and attorneys involved in the
world of human rights constitutional law.

This volume, which will be widely welcomed by students and researchers, brings together a
selection of Lawrence W. Beer’s many works previously published in diverse venues, but no longer
easily accessible.

The collection opens with a review of constitutionalism in Asia and the United States and con-
cludes with a recent examination of Japan’s rejection of war: ‘Japan’s Constitutional Discourse and
Performance’. By way of Afterword, the author offers an in-depth review of ‘Globalization of
Human Rights in the 21st Century’.

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See Tsuji Kiyoaki, Nihon kanryōsei no kenkyü (Tokyo University Press, 1969), and his “Decision-
Making in the Japanese Government,” in Ward, Political Development, pp. 457–76; and Nakane,
Japanese Society, p. 65.

45 Nakane, Japanese Society, p. 147. Freedom to speak out in a group is affected by one’s status in the
group’s organization.

46 Ibid., p. 144.
47 Hayashi Chikio et al., Nipponjin no kokuminsei (Shiseidō, 1970, 1975, and 1980), concerning which

see Asahi Shinbun, July 18, 1979, and Japan Times, July 18 and 27, 1979, and January 20, 1980; Lewis
Austin, Saints and Samurai (New Haven: Yale University Press, 1975); Kamishima, Jōmin no seiji-
gaku; Bradley M. Richardson, The Political Culture of Japan (Berkeley: University of California Press,
1974); and William K. Cummings, Education and Equality in Japan (Princeton: Princeton University
Press, 1980). On the felt-need for, but resistance to a sense of community in the United States, see
Ralph Keyes, We, the Lonely People (New York: Harper & Row, 1973).

48 Hayashi, “Seiji ishiki no seitai.”
49 Koschmann, ed., Authority and the Individual, especially “Introduction”; Kamishima, Jōmin no seiji-

gaku. A Japanese film Nihon no ansatsu hiroku (1969) traced the modern Japanese history of political
assassinations, contending that all such killings have been the result of group conspiracy, rather than
the efforts of isolated individuals, in apparent contrast to the American style of assassination.
Similarly, the political suicide of novelist Mishima Yukio in 1970 was a carefully planned group
operation. Stuart D. B. Picken, Nihon no jisatsu, trans. Hori Taoko (Simul Press, 1979), provides a
welcome comparative perspective on the context and ordinary frequency of suicide in Japan; see
also, Japan Times, December 3, 1978.

50 Koschmann, ed., Authority and the Individual, p. 14.
51 Nakane, Japanese Society, p. 150.
52 See, for example, Chapter 9, concerning rights of the person.
53 For example, a Takushoku University student was killed by fellow karate club members in June,

1970. On these and other cases, see Asahi Shinbun, March 25 and 26, June 15 to October 15, 1970.
Concerning a child gang beating of a young paralytic, see “Koe” section, Asahi Shinbun, October 31,
1978. On convictions for the United Red Army killings, see Asahi Shinbun, March 30, 1979; Japan
Times, March 30, 1979; and Japan Times Weekly, November 15, 1980. On mura hachibu, see Chapter
9 see also Chapter 5, notes 94 and 121.

54 The medical profession illustrates the intensity and style of competition one sometimes finds. For a
hospital administrator, a central problem is the harmonization or pacification of factions of medical
personnel which identify with different medical schools, such as those of Tokyo University and Keiō
University. On conflict between schools of traditional dancing, see Japan Times Weekly, March 8 and
April 28, 1980. On other East Asian systems and conflict, see Alan Liu, Political Culture and Group
Conflict in Communist China (Santa Barbara: Clio Books, 1976); Martin K. Whyte, Small Groups and
Political Rituals in China (Berkeley: University of California Press, 1974); Brandt, “Sociocultural
Aspects”; Woo and Wade, “A Study”; and Paul Crane, Korean Patterns (Seattle: University of
Washington Press, 1967).

55 Kamishima, Jōmin no seijigaku; and Koschmann, ed., Authority and the Individual.
56 H. Fukui, Party in Power: The Japanese Liberal Democrats (Berkeley: University of California Press,

1970); R. Scalapino and J. Masumi, Parties and Politics in Contemporary Japan (Berkeley: University
of California Press, 1962); Nakane, Japanese Society, passim; and Ike, A Theory, pp. 50–63.

57 Koschmann, ed., Authority and the Individual, p. 15.
58 K. Ishikawa, “The Regulation of the Employee–Employer Relationship,” in Law in Japan,

ed. Von Mehren, pp. 439–79; Tadashi Hanami, Labor Relations in Japan Today (Tokyo: Kodansha
International, 1979), pp. 171–74; for other examples, see Chapter 6.

59 As translated by David C. S. Sissons in “Human Rights under the Japanese Constitution,” Papers on
Modern Japan (Canberra: Australian National University, 1965), pp. 68–69.

60 See, for example, Asahi Shinbun, March 5 (evening ed.) and April 12, 1979.
61 See Masao Miyoshi, Accomplices of Silence (Berkeley: University of California Press, 1977); and

Nobuko Mizutani, “Communicating in Japanese: Rules for Expressing Oneself,” Center News
(Tokyo: Japan Foundation), Vol. 4, No. 2, June, 1979, pp. 2–4. Yukio Matsuyama put it with humor:

While I lived in New York and Washington, I got the impression that Japan could be compared
to a hare. A hare has long ears, symbolizing his avid curiosity to catch information quickly,
while he cannot express himself with his very small mouth. His behavior is far from being

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SOCIAL PATTERNS AND FREEDOM OF EXPRESSION

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majestic. He moves and jumps so unsystematically that no one can tell where he heads for. And
mild and gentle as he may look, he is often disliked by others because of sneaking into another’s
field to eat carrots.

In an address, “An Advice to Americans,” U.S.–Japan Business Forum, San Francisco, October 6,
1980, p. 5.

62 Chalmers Johnson, “Omote (Explicit) and Ura (Implicit): Translating Japanese Political Terms,”
Journal of Japanese Studies, Vol. 6, No. 1, Winter, 1980, pp. 110–11; see also Baerwald, Japan’s
Parliament.

63 Thomas Blakemore in Nippon Times, July 23, 1946.
64 Concerning demonstrations, see Chapter 5.
65 Robert L. Seymour, “Japan’s Environment: The Legal Response to Pollution,” Selected Papers in

Asian Studies, Vol. 1 (Western Conference of the Association for Asian Studies, 1976), p. 207;
J. Gresser et al., Environmental Law in Japan (Cambridge, Mass.: MIT Press, 1980); Lawrence W.
Beer and C. G. Weeramantry, “Human Rights in Japan: Some Protections and Problems,” Universal
Human Rights, No. 3, July–September, 1979, pp. 30–31; Asahi Shinbun, July 28, 1979; the journal
Kōgai Kenkyū; and Margaret McKean, Environmental Protest and Citizen Politics in Japan (Berkeley:
University of California Press, 1981).

66 For a full discussion of the Hakata Station Film case, see Chapter 8, below.
67 Hoffmann alludes to the flexibility in what I have called “inclusionary groupism” in his reference to

“permeable group boundaries” and other aspects of factional structure, while comparing Japan and
India:

Japanese factional structure is characterized by: (1) a less clear distinction between inner and
outer circles, made so by promotion of individuals within a faction through seniority,
competence, or other considerations and by maintenance of an unbroken descending chain of
relations primarily between individuals rather than between subgroups; (2) more permeable
group boundaries, in that identification can be shifted from an inner or outer circle to the whole
faction, and even beyond the faction, according to situational considerations; (3) a more stable
hierarchical ordering and often a higher degree of bureaucratization than in India; (4) roles and
relationships patterned on several indigenous cultural models, namely, the ie (traditional
extended family, a household), the village, the gekokujō (“control of the superior by the
inferior”) decisional method, and Japanese values concerning personal obligations and ties.

Hoffmann, Faction Behavior, p. 233.
68 Nakane, Japanese Society, p. 149.
69 Tokyo Weekender, August 10, 1979.
70 Lawrence W. Beer, “Japan Turning the Corner,” Asian Survey, January, 1971; and Seymour, “Legal

Response.”
71 Beer and Weeramantry, “Human Rights,” pp. 31–33; Reischauer, The Japanese, pp. 369–426; and

Takao Suzuki, Japanese and the Japanese, trans. A. Miura (Tokyo: Kodansha International, 1978),
pp. 140–47.

72 See note 24, supra, and accompanying text.
73. These agencies are described in Chapter 4.

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HUMAN RIGHTS CONSTITUTIONALISM IN JAPAN AND ASIA

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Shimizu Hideo, 177
Shimizu Police Law case, 237
Shinto shrines funding, 237
shyness with outsiders, 133
silence valued, 140
Sirota, Beate, 59
‘Six Codes’, 232
social loyalty, 131–2
social patterns

Japan, 125–52
subgroup linkages, 131–2
vertical social structure diagram, 131

social sciences
American assumptions, 9
products of Western civilization, 9

Soeharto, President, 271
Soka Gakkai, 204
Sonobe Itsuo, 236
son-preference, 46
South Korea

American influence, 70–2
American occupation, 34–5, 68–70
Christian churches, 68, 72
constitutions 1948–87 review, 72–4
human rights, 70–2, 90–3
leadership, 271
no constitution has outlasted its ruler,

82
rights violations by government, 92
security dependence on USA, 74–5
USA influence on constitutionalism, 32

Spain, 221
Spinrad, William, 181
Sri Lanka, 33–4
state secrecy rights, 205–206
Steiner, Kurt, 64
student violence, 115–16
Subversive Activities Control Law, 1952,

200
succession problems, 90–1
Sun Yat-sen, 34
Sunagawa decision, 170
Supreme Court precedent reversals, 189n58
Suzuki case, 237
Suzuki Yoshio, 64–5
Suzuki Zenkō, 136
Syngman Rhee, 67, 68, 73

Taiwan, 27, 34, 91, 270
Takahashi Hisako, 236
Takayanagi Kenzō, 65–6, 170, 229
Takichi Nishiyama, 281

Tanaka Jiro, 236
Tanaka Kakuei, 237, 281
Tanaka Kotaro, 64, 236
Teramae Manabu, 199–200
Terao Shōji, 200
textbooks controversy, 181–2
Thailand, 26, 27, 87–8, 270
Tokushima Ordinance case, 200
Tokyo Central Post Office decision,

201–202
Tokyo Newspaper Sellers Commission,

181
Tokyo Ordinance case, 198–9, 200
Tokyo University case, 118
tolerance, duty of, 145–6
torture, 47
Tun Mohamed Suffian, 28

UNESCO, USA absence, 274
United Nations

Charter article, 55, 10
Security Council membership, 121
USA disdainful attitude, 294

United States of America
disdainful attitude towards United Nations,

294
human rights perceived as deeply

committed, 33
image abroad uninformed, 273
influence on Japanese constitution, 32
influence on Philippines constitutionalism,

32, 33
influence on South Korean

constitutionalism, 32
self-congratulation overdone, 4
voting rates very low, 20

Universal Declaration of Human Rights,
1948, 10, 83, 221, 276, 293–4

university disruption, 1968–69, 114–15
University Law, 1969, 114, 115, 117
Unno Shinkichi, 64
USAMGIK (U. S. Military Government in

Korea), 34–5, 69–70, 73
Utage no Ato, 178, 204-205

value relativism, 21–3
Vogel, E F, 150n33
voting rights, 30

war reparations payments, 230
war responsibility, lack of

infuriates other countries, 256

310

INDEX

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Weeramantry, C. G., 100
Western individualism, 212
whistleblowing, 207
Whitney, Courtney, 57–9, 227
Wildes, Harry Emerson, 59
women’s rights

India, 46
Japan, 61
Korea, 70

workers rights, Asia, 45
‘wrappings culture’, 141
Wright, Evan, 286

Yamin, Mohamed, 33
yangban, 52
Yasuhiro Okudaira, 224
Yasukuni Shrine, 226
Yomiuri Constitution Study Council,

231
Yoshida Shigeru, 117
Yu Chin-O, 72–3

Zennōrin case, 202
Zhao Ziyang, 271
Zhou Enlai, 91

311

INDEX

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