Utsunomiya Kyowa University, Japan
The 2014 9th East Asian Conference on
Philosophy of Law
at Hankuk University of Foreign Studies
purpose of this presentation
• to articulate the conditions of constitutional
legitimacy, in particular,
1) on its intergenerationl (not only synchronic
but diachronic) aspects
2) in reference of ontological time theories
How can we make legitimate decisions
under (scientific) uncertainty?
• faced with the spread of disbelief to experts
– because of, for example, Fukushima Daiichi
nuclear disaster, radioactive contamination, and
STAP cell scandal, and so on
• cf. 2009 L'Aquila earthquake and
the following “science court”
• Scientific uncertainty will be increased
more and more in a long time span
• How can we know the preferences of
distant future generations?
• “legitimacy” means not only the
procedural values free from justness
• but substantive reason that is a basis
for the general acceptance.
constitutional legitimacy (1)
• “constitutional change by reinterpretation”
• The Abe cabinet has changed the article 9 of
the Constitution of Japan and approved of the
limited right of collective self-defense.
• This decision has been criticized by many
people as “illegitimate”, but why?
constitutional legitimacy (2)
• substantive reasons:
tyranny of the majority; fear of state militarism
• procedural reason:
not by formal amendment but by de facto
• Does the uncertainty of meanings weaken the
constitutional legitimacy, or rather strengthen ?
• This problem depends on the following “time
presentism and eternalism
• Two major time theory of analytical metaphysics
– eternalism: all things are equally real in four-dimensional
– presentism: only present things are real, the world newly
emerges at every moment!
• These approaches are not compatible in a strict
ontological sense, but I’d like to regard them as world
views (not necessarily incompatible), and articulate
the implications of these views to the constitutional
eternalistic legitimacy -- atemporality
• J. Rubenfeld (2001) : prospective view
– Constitional legitimacy is based on the reality (at least,
communal belief) of the intergenerational community
that continues to the future.
• R. Dworkin (1986): retrospective (integral) view
– Holistic justification of the total legal practice of the
community so far is an essential element of
→ integrity, continuity, persistence, prospectiveness, etc.
presentistic legitimacy -- temporality
• Th. Jefferson (1789) :
each generation’s own constitution
• Peg Birmingham (2006):
“right to have rights” for “action” (H. Arendt)
• Drucilla Cornell (2007):
freedom as an endless re-imagination of the self
and the world
→ freedom, self-decision, open future, contingency, etc.
• On the basis of these two views of the world
inspired by metaphysics of time, we can properly
articulate the various ways of constitutional
legitimacy that we usually unconsciously mix.
• For intergenerational constitutional legitimacy, it
seems that we must have prospective
• However, because our liberal democracy can be
characterized as presentistic, there is much
generational accounting (1)
• GA is a tool of visualizing the intergenerational
imbalance that represent each generation’s
benefit and expense in relation to their
• Japanese intergenerational imbalance is so
acute, and other industrialized countries often
show a similar tendency.
• Does this imbalance undermine our imagination
or motivation for intergenerational corporation?
• Possibilities of generational accounting:
intensifying the confrontation between generations
promoting a sense of intergenerational responsibility
• Intergenerational constitutional legitimacy is multi-layered,
and we can properly articulate it with a help
of time perspectives inspired by analytical
metaphysics (this is not exclusive way).
• Probably, we need prospective intergenerational
imagination, but because our (liberal) democracy is
often characterized as contemporariness, it is
difficult for us to care our future, still less, faced with
the intergenerational imbalance visualized by the
• In Japan, however, because of the 2011 Tōhoku
earthquake and tsunami disaster, it seems that
Japanese national community sense has been
expanded to the distant future.
• It is symbolized by a word “Kizuna” (bond) that
includes future generation loosely.
• Radical uncertainty may, paradoxically, associate our
presentistic democracy with the intergenerational
responsibility and legitimacy.