00181248

open access

Version of Record

コッカ ト シュウキョウ ノ ブンリ ノ アラタナ イソウ エヒメ タマグシリョウ サイコウサイ ハンケツ ノ カイセキ

The Supreme Court of Japan and the Principle of Separation of State and Religion

Japanese (日本語)

国際協力論集

5(2)

77-100

神戸大学大学院国際協力研究科

1997-11

2007-04-19

In April 1997，The Supreme Court of Japan delivered a judgment on a very important case pertaining to the constitutional principle of separation of state and religion. The case occured in Ehime Prefecture and was concerning payments of public money to Shinto shrines on the occasion of their ceremonies. The Matsuyama district court ruled in 1989 that the case was in violation of the Constitution. The Takamatsu high court contrarily ruled it constitutional in 1992. And the Grand Bench of the Supreme Court proclaimed it unconstitutional in support of the district court's decision. The Supreme Court's conclusion of unconstitutionality of the case was in accord with common knowledge of jurisprudential circles. But this judgment's ratio decidendi did not correspond with the most important precedent in the Supreme Court. In this sense the Supreme Court's latest judgment is epoch-making. The Supreme Court' precedent in 1977 adopted the standpoint of very loosend separation of state and religion. This judgment took the teeth out of the constitutional articles which define the principle of separation. On the other hand，the new judgment of the Supreme Court adopts the standpoint of strict separation of state and religion. This means that the constitutional principle of separation has just revived in fifty years after enforcement of the Constitution. In the case，the judgment of violation of the Constitution is held by thirteen Justices (including a majority opinion，concurring opinions and separate opinions)，and only two Justices dissent. This treatise is intended to analyze a majority opinion，concurring opinions，separate opinions，and dissenting opinions in detail，and thereby make clear the meanings or phases of each opinion.

紀要論文