VOL.6 NO.9 (September, 1996) PP. 128-131
TO DREAM OF DREAMS: RELIGIOUS FREEDOM AND CONSTITUTIONAL POLITICS IN POSTWAR JAPAN by David M. O'Brien with Yasuo Ohkoshi. Honolulu: University of Hawaii Press, 1996. 271 + xvi pp. Reviewed by Masaki Abe, Faculty of Law, Osaka City University
Shinto stands in a queer position in Japan. On the one hand, it has its origin in ancestor worship and animism in ancient times and therefore most Japanese view its rituals not as religious rites but as mere customs. On the other hand, it has been closely connected with the emperor system and militarism. During the Meiji period, the Japanese imperial government systematized traditional Shinto teachings and rites as State Shinto and used it for legitimating the imperial regime and securing the people's loyalty to the emperor. The emperor was regarded as the living god who was a descendant of the great Sun Goddess Amaterasu and dying for the emperor was glorified as the greatest honor for the Japanese.
The imperial government indoctrinated the people in those dogmas, which then led to aggression on Asian countries under the pretext of expanding the holy rule by the emperor and caused a lot of unnecessary deaths among Japanese soldiers. After World War II, the newly enacted Japanese Constitution declared that the emperor was merely a symbol of the nation and the national integration and prescribed the separation of the state from religion. Shinto became just one of many religions.
Even after that, however, conservatives and ultranationalists have attempted to use the doctrines and rites of Shinto in order to enhance the status of the emperor and to expand armaments. Such political uses of Shinto, however, have been hardly recognized by ordinary citizens as violations of the disestablishment clause of the constitution because of the very fact that Shinto rites have been regarded as mere customs in their mind. Only a small number of pacifists, communists, and Christians have seen in the governmental performance or support of Shinto rites the danger of returning to the imperial militarism that prevailed before the defeat in World War II. These people have brought lawsuits claiming the strict separation of the state from Shinto and the full protection of minorities' religious freedom.
In TO DREAM OF DREAMS, American political scientist David M. O'Brien, with the collaboration of Japanese constitutional law scholar Yasuo Ohkoshi, inquires into cultural, political, and legal issues surrounding Shinto in postwar Japan. Using archival data and data obtained by in-depth interviews with citizens and their attorneys who asserted the separation of the state from religion and the freedom of religion in courts, he elaborates on the lawsuits and analyzes their complicated relationship with macro level social and political conditions. On the basis of these case studies, he also challenges the popular understanding that the Japanese are religiously tolerant, harmonious, and reluctant to litigate.
The first chapter is a brief introduction to the Minoo war memorial litigation in which plaintiffs claimed that Minoo City's expenditure for a war memorial was the violation of the disestablishment clause of the constitution, as well as contrary to Japanese law, politics, and religion in general. It is also in this chapter that the authors articulate their three basic theses. Those are (1) while it is often said that the Japanese don't have strong belief in any particular religion and hence tolerate various religions, the lack of religious belief often leads to intolerance of those who have strong belief in a particular religion and try to live according to its teachings; (2) although Japan is usually counted as a harmonious society, there are sharp disagreements on some issues; and (3) contrary to a common understanding, the Japanese are far from reluctant litigants.
Chapter 2 is devoted to the history of State Shinto after the Meiji Restoration. While the attitude of the Japanese imperial government toward Shinto had fluctuated with time, it finally systematized Shinto teachings and rites as State Shinto and indoctrinated the people in its dogmas to secure popular support to the reign of the emperor and to the military expansionism under it. After World War II, the Allied Forces labored to deter the reemergence of the imperial militarism by thoroughly separating the Japanese state from Shinto. As a result, the newly enacted Japanese Constitution declared the separation of the state from religion as well as religious freedom of the people. Those provisions of the Constitution, however, were not crystal-clear, and legal and political conflicts have constantly emerged in postwar Japan concerning how to interpret them.
In chapter 3, the author briefly describes the features of the contemporary Japanese legal system. Because the Japanese judiciary is bureaucratically organized, lower court judges hardly enjoy independence from hierarchical control by the Supreme Court and its General Secretariat. In addition, under the long-lasting one party dominance of the Liberal Democratic Party, Supreme Court Justices and the judicial elite in the General Secretariat have paid deference to governmental policies and maintained judicial self-restraint. In the same chapter, the author also presents the Tsu City Ground Purification Ceremony case in which the Supreme Court rendered its interpretation of the disestablishment clause of the Constitution for the first time. The Court held that the Shinto- style ground-purification ceremony sponsored by Tsu municipal government was not unconstitutional because such a ceremony had become more customary than religious and the city's sponsorship of the ceremony did not mean patronizing Shinto at the sacrifice of other religions.
In chapter 4, the author gives a full commentary on the Minoo war memorial litigation with the descriptions in the former two chapters for a background. The Minoo war memorial litigation consisted of three separate lawsuits: one concerning the expenditure of Minoo municipal government for the relocation of a memorial which glorified the loyal souls of the war dead; one about the attendance of city officials at a Shinto-style ceremony for mourning the war dead conducted in front of the memorial; and one disputing a city subsidy to a local association of war-bereaved families which had presided over the ceremony. In the former two cases, plaintiffs won in the Osaka District Court but lost in the Osaka High Court and the Supreme Court. In the last case, neither the district court nor the high court admitted the claim of plaintiffs. According to the majority opinions of the Supreme Court, the war memorial at issue is a non-religious monument for commemorating the war dead. The Court also held that city officials' attendance at a Shinto-style ceremony didn't violate the disestablishment clause of the Constitution because the purpose of the ceremony was not supporting or promoting a particular religion but rather was one of memorializing relatives and neighbors who had died in war.
In chapter 5, the author turns his eyes to another case. In that case, the widow of a serviceman of the Self Defense Forces (SDF) who had died in an accident while on duty sued the Japanese government. She alleged that the SDF had cooperated with the SDF Friendship Association, an private association composed of SDF members and veterans, in enshrining all departed SDF servicemen including her dead husband in a Shinto shrine regardless of her objection as a Christian, and that this violated the constitutional principle of the separation of the state from religion and her religious freedom. She claimed monetary damages for pain and suffering caused by this allegedly unconstitutional activity of the SDF. The author also delineates, as political background for this case, the unsuccessful proposal by conservatives to the Diet of the Yasukuni Bill which aimed at enhancing governmental financial support to the Yasukuni Shrine. This Shrine had been constructed by the imperial government in the Meiji era as the highest shrine of State Shinto for enshrining the war dead; it privatized after World War II.
In the last chapter, the author analyzes the lower court and the Supreme Court rulings of the SDF Enshrinement case introduced in the former chapter. In this case, both the Yamaguchi District Court and the Hiroshima High Court admitted the plaintiff's claim, but the Supreme Court overturned the high court ruling because the cooperation of the SDF for the enshrinement had been indirect and, hence, violated neither the disestablishment clause nor the religious freedom clause of the Constitution. The majority of the Court stated as obiter dictum that the SDF should have been more sensitive to the sentiments of religious minorities and governed itself in accordance with such sensitivity. According to the author, the Court majority thereby implicitly warned that the SDF should not be actively involved in ceremonies for the funeral of the Emperor Showa and for the succession of his son which, were then expected in the near future. The author argues that such an implicit warning is the way the passive Japanese judiciary plays its role in politics.
The book closes with a brief description of the aftermath. Some ceremonies for the funeral of the Emperor Showa and for the succession of his son were held in Shinto-style, but others were secular in nature. All expenses were from the national budget, however. Several lawsuits were brought claiming the unconstitutionality of the expenditure, but none of them has yet been successful.
Overall, this book clearly describes postwar Japanese law and politics concerning the separation of the state from religion and religious freedom with great precision. It is admirable that an American scholar who has little command of the Japanese language made this achievement, although close collaboration of a Japanese scholar was available. There are some doubts, however, that his case studies fully support his basic theses.
First of all, the author's case studies are insufficient to falsify the popular understanding that the Japanese are reluctant to sue because the lawsuits which he picks are really exceptional ones. Although he indicates as supplemental quantitative evidence the fact that the docket of the Japanese Supreme Court is as large as that of the U.S. Supreme Court while the population of Japan is less than half of that of the United States (p.26, 66), this comparison is rather misleading. In the United States, because the types of cases over which the federal courts have jurisdiction are strictly limited by the U.S. Constitution, many lawsuits are finally processed by state courts without being appealed to the U.S. Supreme Court. In contrast, almost all types of cases can be appealed to the Supreme Court in Japan. Taking such a difference between the system of judicial federalism in the United States and the unitary judicial system in Japan into account, it seems natural that the docket of the Japanese Supreme Court is larger than that of the U.S. Supreme Court, even if the Japanese dislike litigation. If we instead compare the number of cases appealed to the Japanese Supreme Court with that of cases appealed to the U.S. Supreme Court plus those processed by state highest courts with finality, the former should be small enough to vindicate that the Japanese are actually reluctant litigants.
In addition, while the author asserts that "deep-seated differences and disagreements in Japan cut along generational, geographical, gender, and political lines" (p. viii, 31), it seems that legal and political conflicts over the separation of the state from religion and religious freedom do not fully support this assertion. My impression is that, just as those who have brought lawsuits claiming the total separation of the state from religion and the full protection of religious freedom are minorities, so those who have plotted to use Shinto to enhance the political status of the emperor and expand armaments are only a small number of conservatives and ultranationalists.
Most Japanese take neither side. They are just indifferent to religion and its connection with politics. I think that, even within the Japan Association of War Bereaved Families, which the author regards as one of the most powerful conservative interest groups in Japanese religious politics, most of the rank and file members only want the government to increase pensions for war-bereaved families and to pay due respect to the war dead. They do not consider possible political links between their demands on the one hand and the emperor system and armaments on the other.
Of course, it is undeniable that such religious and political indifference often results in a perception of those who strongly assert the separation of the state from religion and the protection of religious freedom as abnormal. The indifference also implies the danger of quiescently allowing the maneuvers of a small number of conservatives and ultranationalists in power to use Shinto for their political causes. But this danger emerges not from heated political conflicts dividing the country but from the popular attitude of consciously or unconsciously avoiding such conflicts, that is, indifference.
Those doubts little impair the value of this scholarly work, however. This book contains rich information and deliberate analyses which are invaluable for those in English-speaking countries who are interested in Japanese law, politics, and religion. As a Japanese who has often felt difficulty in explaining matters in Japan in English, I frankly welcome the publication of this book.