¹ See, for example, Satoshi Yokodaido, Constitutional Stability in Japan not due to Popular Approval, 20(2) German Law Journal 263 (2019); Satoshi Yokodaido and Toshihiro Yoshida, Constitutional Literacy: 15 Lessons Starting with a Question (Yuhikaku, 2022) (in Japanese).

² For the following part, see also Satoshi Yokodaido, A Consideration of Comparative Constitutional Law in Japan, in Global Constitutionalism and Constitutional Studies (Akiko Ejima, ed., Shinzan-sha, 2023) (forthcoming, in Japanese).

³ This calculation is, among other things, mainly based on the number of members of the biggest academic society named the ‘Japan Public Law Association’. It has over 1,200 members comprising constitutional scholars, administrative law scholars and practitioners; however, the majority of the members are constitutional academics. There are a few other academic societies related to the Constitution based on political preferences: the ‘Association for Studies of Constitutional Law’ and ‘Association for Studies of Constitutional Theory’ are left-wing, liberal academic societies. The ‘Constitutional Law Association’ is a right-wing, conservative academic society – hardly anyone simultaneously becomes a member of left- and right-wing academic associations. We also have the ‘Japanese Association of Comparative Constitutional Law’, which mainly focuses on other countries’ constitutions. Other academic societies also study other countries’ constitutions.

⁴ Yōichi Higuchi, Comparative Constitutional Law 3 (3rd ed., Sōbun-sha, 1992) (in Japanese) (emphasis added).

⁵ I disagree with this definition in that it only recognizes ‘science’; I sympathize with the statement by Vicki C. Jackson: ‘[G]ood work in comparative constitutional law does not necessarily require social science methods, but does require knowledge of law and legal institutions and capacities for insight and imagination’. Vicki C. Jackson, Comparative Constitutional Law, Legal Realism, and Empirical Legal Science, 96 B.U. L. Rev. 1359, 1360 (2016). See also Jaakko Husa, Comparison, in Research Methods in Constitutional Law: A Handbook 12–13, 25 (David S. Law and Malcolm Langford, eds., 2018).

⁶ Yōichi Higuchi, Modern Constitutionalism and Contemporary States, 4–5 (Keisō-Shobō, 1973) (in Japanese).

⁷ Id. at 115.

⁸ Although presently inconceivable, there was a time when the term social science was used almost synonymously with Marxism. Many constitutional law scholars who espoused Marxism deployed comparative constitutional studies based on historical materialism. For them, comparative constitutional law was to clarify the laws of universal history by verifying the relationship between the mode of production as a base and the legal order as parts of the superstructure in a few countries. However, hardly anyone in constitutional academics is explicitly devoted to Marxism now in Japan.

⁹ On the relationship between the study of history and social science, see Hiroyuki Hoshiro, The Method How to Create Theories from History: Integrating Social Science and Study of History (Keisō-shobō, 2015) (in Japanese).

¹⁰ A principal reason for this situation is historical in nature. When Japan attempted modernisation in the late-nineteenth century, these countries, except the USA, became models to emulate. Many basic laws – not only the constitution, but also the civil code, criminal code, commercial code, etc. – were replicated from these countries’ laws. Law education was conducted in German, French and English at universities. After World War II, the USA became a model to be compared, which explains its heavy influence on the enactment of the current Japanese Constitution and other laws.

¹¹ See Hajime Yamamoto, Constitutional Interpretation and Comparative Law, 66 Public Law Review 105, 106–107 (2004) (in Japanese). As I mentioned in supra note 5, as I disagree with the idea that comparative constitutional law must be a science, I think these types of studies also deserve to be treated as comparative constitutional law. The problem is not whether it falls under the definition of comparative constitutional law, but that only similar studies can be found.

¹² Rosalind Dixon and Tom Ginsburg, Introduction, in Comparative Constitutional Law 1 (Tom Ginsburg and Rosalind Dixon, eds., 2011).

¹³ Stephen Gardbaum, How Do and Should We Compare Constitutional Law? in Comparing Comparative Law 2 (Samantha Besson, Lukas Heckendorn and Samuel Jube, eds., 2016), UCLA School of Law, Public Law Research Paper No. 16-15, available at SSRN: https://ssrn.com/abstract=2758885.

¹⁴ Ran Hirschl, Comparative Methodologies, in Comparative Constitutional Law 11, 11 (Roger Masterman and Robert Schütze, eds., 2019) (emphasis added). On the meaning of the renaissance in this context, see Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law, Chapter 1 (2015).

¹⁵ For example, they presented the data that among 33 countries that enacted new constitutions from 1945 to 1949, 26 countries experienced constitutional amendments and 18 entirely replaced their constitution.

¹⁶ Once, in a private conversation, I heard a famous professor criticize: ‘Such kind of research is only counting numbers’.

¹⁷ I sincerely disagree with this claim. See, for example, Yokodaido and Yoshida, supra note 1 at 68–70. Simply put, especially under the concise and simplified Constitution of Japan, this idea would effectively allow for de facto constitutional amendment by political actors, and this, in turn, would foster a public awareness that the text of the Constitution can be interpreted in a flexible manner, which would undermine the normative force of the Constitution itself. On this point, we should refer to other prominent research on the Japanese Constitution by a political scientist. See Shirō Sakaiya, Constitution and Public Opinion: How Japanese People Confront the Constitution after War (Chikuma-shobō, 2017) (in Japanese). For other reasons for my disagreement, see infra note 19.

¹⁸ Atsushi Sugita, Proper Conditions for Arguments about Constitutional Amendments, in Say No to Abe’s Style of Constitutional Reform! 207 (Yōichi Higuchi and Jirō Yamaguchi, eds., Iwanami-Shoten, 2015) (in Japanese).

¹⁹ Yasuo Hasebe, What is a Constitution? 18–19 (Iwanami-Shoten, 2006) (in Japanese). Based on that criterion, many significant implementations of constitutional amendments in other matured democracies are also evaluated as useless – a waste of time and money, and even anti-constitutionalism. For example, in Ireland, the twenty-first Amendment of the Constitution Act of 2001 inserted the new provision that ‘the Oireachtas [Congress] shall not enact any law providing for the imposition of the death penalty’ in Article 15.5.2 of the Irish Constitution. This and other related amendments to abolish the institution of the death penalty is ‘[t]o some extent, this was a largely symbolic gesture. The latest execution took place in 1954; the death penalty was abolished for all but a very limited class of crimes by the Criminal Justice Act 1964 and the death penalty was finally abolished even for these crimes by the Criminal Justice Act 1990, s 1’. Gerard Hogan, Gerry Whyte, David Kenny and Rachael Walsh, Kelly, The Irish Constitution 346 (5th ed., 2018). Therefore, the Irish achievement of prohibiting the death penalty by amending their Constitution would be criticized by the criterion used by Japanese constitutional scholars. However, I think, this is crucial for constitutions to have a symbolic meaning.

²⁰ The Japanese have witnessed such arguments during the COVID-19 pandemic; Japan did not introduce harsh measures, such as lockdowns, which were implemented in other countries to prevent the contagion. The Japanese government and the LDP explained that introducing lockdowns would be difficult because of constitutional hurdles, and thus, constitutional amendment would be required. Against this stance of the government and the LDP, not only the biggest opposition party but also many constitutional scholars, have asserted that a restriction as extensive and harsh as a lockdown is justifiable under ‘public welfare’ as the current Constitution's general provisions for basic rights restriction. Thus, for them, there is no need to change the Constitution at all. See Keigo Komamura, Satoshi Yokodaido, Mai Sugaya, Masayoshi Kokubo, Japan, in The 2021 International Review of Constitutional Reform 132 (Roberto Barroso and Richard Albert, eds., 2022). I have criticised these attitudes from the standpoint of human rights protection. See Satoshi Yokodaido, Human rights, Lockdown, and Emergency Situation, 2505 Hanrei-Jihō 119 (2022) (in Japanese).

²¹ I have written that putting the emergency provisions in a constitution is meaningful for protecting human rights. See Yokodaido and Yoshida, supra note 1, Chapter 10, and Yokodaido, supra note 18.

²² European Commission for Democracy Through Law (Venice Commission) Report: Respect for Democracy, Human Rights and the Rule of Law During States of Emergency: Reflections, taken note of by the Venice Commission on 19 June 2020 by a written procedure replacing the 123rd plenary session, 6–7 (CDL-AD(2020)014-e) (internal citation is omitted and adding emphasis).