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.
Copyright 1996