Published on October 13, 2019.
Continuing Shinoda Hideaki’s essay published in WiLL, this article discusses the special ideological tendencies of Japan’s constitutional-law circles, the personnel structure surrounding University of Tokyo Law Faculty–affiliated scholars, and the problems in mainstream interpretations of Article 9, paragraphs 1 and 2.
It criticizes the constitutional-law orthodoxy that links Article 9 to absolute pacifism and denial of the right of self-defense, arguing from the perspectives of the Kellogg-Briand Pact, the UN Charter, and international law.

October 13, 2019.
To begin with, the special ideological tendency of constitutional scholarship is widely known, so it is rather natural that those who aspire to become constitutional scholars are all people with the same ideological tendency.
The following is a continuation of the previous chapter.
Special constitutional scholars.
―Many graduates of the University of Tokyo Faculty of Law seem to be trapped in the narrow path of “Galápagos constitutional scholarship.”
Is this also a distinctive academic style?
Shinoda.
Because there is a strong ideological tendency, one can observe a tendency for special interpretations to be handed down on an ideological basis.
To begin with, the special ideological tendency of constitutional scholarship is widely known, so it is rather natural that those who aspire to become constitutional scholars are all people with the same ideological tendency.
Moreover, in the case of graduates of the University of Tokyo Faculty of Law in an old academic field such as constitutional law, it is a personnel custom for them to become associate professors at around the age of twenty-five at so-called “colonial universities,” meaning national and public universities where the University of Tokyo’s influence is strong.
In a sense, a special industry has been formed in which, even without writing a doctoral dissertation, one’s life can be made secure simply through the recommendation of one’s supervising professor.
One could say that personnel decisions, in some respects, determine the prevailing academic orthodoxy.
―There seem to be many idealistic constitutional scholars who say, “The Constitution must be this way.”
Shinoda.
There exists in Japanese constitutional scholarship a peculiar culture that beautifies interpreting the Constitution ideologically.
Those who love and seek that tendency are precisely the people who aspire to become constitutional scholars, and those who do not would never, by mistake, become constitutional scholars, you know.（笑）
Or, people who oppose that tendency are excluded from the mainstream through filters such as personnel customs, so it can be said that, throughout postwar history, this special tendency has been expanded and reproduced.
A sinful misinterpretation.
Regarding Article 9, paragraph 1, as well, it is a “copy and paste” of the 1928 Kellogg-Briand Pact and the 1945 United Nations Charter, and one cannot read from it any content that deviates from international law.
What is renounced is “war,” which is already illegal under international law, and to claim that the right of self-defense or collective security is renounced is a misinterpretation.
The prevailing theory in constitutional scholarship says that, because paragraph 2 provides for the non-maintenance of “war potential” and the denial of the “right of belligerency,” the correct interpretation is a “table-turning” interpretation that returns to paragraph 1 and revises its meaning in line with absolute pacifism.
However, “war potential” means “potential for war,” and in terms of both wording and context, it should be understood as a concept meaning the potential intended to carry out “war,” which was renounced in paragraph 1 and is illegal under international law.
It does not include the non-maintenance of means for the right of self-defense or collective security, which are principles for maintaining order under international law.
Also, the “right of belligerency” is a concept that does not exist in international law, and even if its existence is denied, nothing is lost.
The “right of belligerency” is a concept used in the Empire of Japan during the Pacific War, and what is being denied is the way of thinking in the wartime Empire of Japan.
It has no effect whatsoever on the rights of present-day Japan under international law.
In other words, Article 9 is a provision whose content is that Japan reflects on its history of trampling on international law and will observe international law from now on.
From the Preamble onward, the Constitution of Japan continues to explain this straightforwardly.
Yet the prevailing theory in constitutional scholarship insists that Article 9 should be interpreted as a basis for departing from international law and rejecting the norms of international law.
Is this not a sinful misinterpretation?