著者

古賀 敬太

出版者

大阪国際大学

雑誌

国際研究論叢 = OIU journal of international studies : 大阪国際大学・大阪国際大学短期大学部紀要 (ISSN:09153586)

巻号頁・発行日

vol.33, no.2, pp.85-100, 2020-01

---

This article intends to analyze how Satoru Kuroda, a distinguished constitutional scholar, interpreted Carl Schmitt's constitutional theory (Verfassungslehre) and adopted it to the diagnosis of the Meiji Constitution and Japanese Constitution. Especially in Carl Schmitt's constitutional theory, we pay attention to Carl Schmit's superlegal constituent power and constitutional emergency power. From the late 1930's, he began to lecture constitutional theory at Kyoto Imperial University. He at first attempted to limit the enormous and unlimited legal power of Emperor. But in the process of wartime system and total mobilization, which was seen in the National Mobilization Act(1938)and the movement of Great Politics Party(1940), he regarded Japan's critical condition as the normalization of exception and legitimatized the interference in the liberty and rights of subjects. Moreover he criticized the liberal and constitutional thought as old-fashioned ideology and attempted to absorb the rights of subjects into the integration of state. But after the world warⅡ, he accepted and legitimatized the radical transformation from imperial sovereignty to the sovereignty of people by appealing to the theory of Schmitts constituent power. He emphasized the legitimacy of constituent power and insisted that constituent power itself is not factual will, but is restrained by the legitimacy or the concrete order.