Reinterpreting The Reinterpretation: Collective Self-Defense As Constitutional Fidelity14 May 2021
As currently interpreted, Article 9 of the Japanese Constitution requires Japan’s Self-Defense Forces (JSDF) to operate in a purely defensive capacity. Recently, however, the United States has increasingly asked Japan to participate in joint military operations, in which Japanese forces would defend not only themselves, but also their American allies. This raises an important legal question: does Article 9 permit the JSDF engage in this kind of collective self-defense? Former Prime Minister Abe Shinzo believed so. After a government panel of legal experts found that collective self-defense was consistent with Article 9, the Abe administration adopted the panel’s conclusion. However, this “Reinterpretation” of Article 9 has been highly controversial. Japanese scholars of constitutional law are deeply divided on the meaning of Article 9 and the legality of the Reinterpretation. While some maintain that Article 9 prohibits collective self-defense, others have argued that Article 9 either permits it, or is superseded by Japan’s treaty obligations to the United States. However, until now, these arguments have not been reflected in the non-Japanese literature. Accordingly, English-language scholarship has often assumed with little discussion that the Reinterpretation is inconsistent with Article 9, before proceeding to analyze the Reinterpretation as a failed attempt to informally amend the Article 9 without the requisite democratic support. This essay re-frames the debate. The Reinterpretation is not an attempt to amend Article 9, but an attempt to understand it. Accordingly, its legitimacy is not derived from the magnitude of its popular support, but the strength of its legal justifications.