Special Workshop Abstract

Kenji Urata

I view this workshop as a means of beginning a much-needed dialogue between the European scholars and non-European scholars, who might be interested in and /or studying our topics. Dr. Policastro’s introductory remarks are mainly concerned with the European regional matters and that it is rather difficult to understand what this means for non-European researchers. Several reasons could be given, including that the readers on this topic need to fulfil a necessary condition to obtain elementary information and knowledge of both the domestic law of the nation states in Europe, and the changing, developing and emerging EU law itself.

Before talking about the domestic laws and the EU law, I wonder what the phrase, "Law and Politics - In Search of Balance" means for us. Is it an ordinary "peace-time" or a sort of "war-time," not only for the U.S., but for the world as a whole? Also is it an exceptional short period of “war” during a long peace- time in the world? When the force speaks, the laws are silent, and the more brutal the force, the more complete the silence of law?

The attack of September 11 was a criminal act, a  “crime against humanity,” carried out by one of the outlaws. I cannot, however, affirm the waging of "war" without a formal declaration of war by Congress. ”Preventive use of force” and “regime change” by waging war is illegal both in domestic law and in international law.  President George Bush is setting the world on a course towards nuclear disaster, the 1995 Nobel peace laureate, Professor Sir Joseph Rotblat, has pointed out. Our methodology of legal thinking should fit into merging all aspects of   “dimensions and paradigms of material control of legal rules," in which not only legal guarantees but also non-legal guarantees, including civil disobedience or the right to resistance, could evolve.

The workshop appears to cover rather abstract notions. I would suggest, however, one example of a less theoretical orientation. I know that some Italian scholars and others in the UK and Germany are very much concerned about the process and materials of making the New European Constitution Treaty, and they are interested in the transformation and translation of fundamental values, conceptions, norms and institutions regarding democracy and constitutionalism.

It is said that a concept of global constitutionalism is related to an effort to systematize and codify a variety of political and legal efforts, which aims to put on a firmer footing the movement for universal human rights, and to develop the idea of global democracy, based on law.  And it is, more generally, concerned with the effort to articulate a set of principles of global governance rooted in the experience of the constitutionalist tradition, broadly understood, balancing a desire for peace and a desire for deep legitimacy. However, we will not really know how unrealistic or how attractive the concept is, and how difficult the needed intellectual claims are to sustain,   until the reflection on this concept as a whole is worked out in some detail. Hence, this paper is trying to re-examine a work which deepens and broadens constitutionalism and revives the modern natural law tradition.

As to contemporary constitutionalism, on the other hand, we should take account of the economic, political and cultural transformations as well as of the fundamental values characterizing the different cultural manifestations that are involved in the process of a globalizing world. Different legal cultures ought to jointly contribute and make use of traditional concepts and methods, in order to construct a multi-cultural approach to constitutionalism.

When I am writing an article on global constitutionalism, I have been following worldwide real-politik, especially relating to facts and opinions appearing in Japan, in Europe and in the U.S. The new realities, I would say, the new struggles of “global imperialism” against a public opinion of world community might give me good sources to consider for my paper. And the framework: Key-concepts and Methodologies in Transformation and Interpretation of Constitution, could be considered to be related.