The Sunakawa Settlement 1947-2014?
Adam Eldridge (PhD Student, Asia Institute, The University of Melbourne)
This paper introduces my PhD project and outlines some of my early stage research. I sketch out the concept of a ‘Sunakawa Settlement’: an interrelated set of arrangements between Japanese government institutions and civil society that managed the competition over the meaning of Article 9 in post-WWII Japan and, put forward my hypothesis that the 2014 Abe Cabinet Declaration and the 2017 Referendum Announcement mark the beginning of a new paradigm.
In terms of approach, this project proceeds from the premise that Article 9 lies at the intersection of research into Japanese law, the state and civil society and therefore, lends itself to an interdisciplinary endeavour that organises the perspectives of comparative constitutional law, political science and civil society. In this context, the paper summarises the Sunakawa Settlement, particularly the role of the Japanese Supreme Court which has been my research focus to date. It then turns to reflects upon some of the comparative constitutional law research that has been reviewed to date. Specifically, the subset of English-language literature produced by US-trained legal scholars that critiques the “political question” doctrine of the Japanese Supreme Court, on the basis of its differences with the United States Supreme Court’s jurisprudence.
This paper suggests that this literature is only of limited value for my project. Specifically, it notes that there appears to be a question for much of this literature: is it attempting to compare the incomparable? Article 9 goes to questions of war and peace and, fundamental questions about the identity of post-WWII Japan. Article 9 is unique to the Japanese Constitution and experience and, there is no substantively similar US constitutional provision, so why would and should, these doctrines be at all similar? As an alternative, this paper proposes that a more fruitful research avenue for my project is to take Japanese law on its own terms and, examine the manner in which the Japanese Courts have treated trespass and civil disobedience cases in and out of the Article 9 context.