O Japão entre mito e realidade: as implicações do Constitucionalismo de Meiji para o Constitucionalismo de Pós-Guerra e atual

Abstract

This article focuses on two terms appearing in the Imperial Rescript of 1876, namely, the “foundations of our nation” (or Kokutai) and the “laws of other nations” to be considered in establishing the Constitution of the Empire of Japan of 1889. My aim is to identify the mythological elements in modern Japanese constitutional history. Examining these concepts should allow us to rethink how the national tradition of Japan, defined by ancient myths, aimed at legitimating the Imperial institution throughout the archipelago, was elaborated in light of or against occidental legal thinking. Immediately after World War II, Japan embarked on the path of demystifying its society by having the Emperor issue a “Declaration of Humanity” and abolishing most legal instruments such as the Imperial Rescript on Education that had served to indoctrinate people in wartime. This process culminated in the promulgation of the pacifist Constitution of the post-war era. Nevertheless, the mythological elements remain latent. The standpoint I adopt in this article should be effective in detecting the mythological function still lingering in the reality produced by law in the areas of national security, energy policy, social and economic policy, as well as other aspects of daily life