著者

古賀 敬太

出版者

大阪国際大学・大阪国際大学短期大学部

雑誌

国際研究論叢 : 大阪国際大学紀要 = OIU Journal of International Studies (ISSN:09153586)

巻号頁・発行日

vol.33, no.3, pp.139-157, 2020-03-31

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This article intends to analyze how Yoshio Onishi (1909-1975), interpreted Carl Schmitt's constitutional theory (Verfassungslehre) and adapted it to the analysis of both the Meiji Constitution and the postwar constitution. Especially we pay attention to Onishi's theory of constituent power and constitutional emergency power. He regarded constituent power as not unlimited, but limited by concrete order, especially it's idea and practical norm. And Onishi attempted to limit the enormous and unlimited legal power of Emperor by consulting Schmitt's views on constitutional emergency power in the Weimar Republic. 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 departed from his former position. After the world war Ⅱ, he returned to his original position and appealed to the importance of constitutional emergency power, which is not stipulated in the postwar Japanese Constitution. He also tried to legitimatize the radical transformation from imperial sovereignty to the sovereignty of people by appealing to the theory of Schmitt's constituent power. Especially he emphasized the legitimacy of constituent power and insisted that constituent power of people itself is not actual will, but is constrained by the legitimacy of the concrete order.