Le tre costituzioni pacifiste

Il rifiuto della guerra nelle costituzioni di Giappone, Italia e Germania

Mario G. Losano

Global Perspectives on Legal History 14
Frankfurt am Main: Max Planck Institute for European Legal History 2020. VI, 399 p.
Online version: Open Access (PDF-Download, License: Creative Commons CC BY 4.0 International)
Print version: 26,38 € (Print on Demand at ePubli)

ISSN 2196-9752
ISBN 978-3-944773-26-1

eISBN 978-3-944773-27-8

Quotation link of the online version: http://dx.doi.org/10.12946/gplh14


The three defeated powers from the Second World War incorporated provisions prohibiting wars of aggression into their post-war constitutions, which are still in force. The first part of the book covers the difficult years for Japan, Italy and Germany between the end of the war and the start of peace (with the Nuremberg and Tokyo Trials, denazification, reparations and the renewal of the school system), analysing the birth of the three constitutions between 1947-49.

The consequences of defeat were different in each of the three countries, and hence each followed its own path in formulating the prohibition on war. However, the division of the world into two hostile blocs required the three countries to rearm, thus launching a process that resulted in the watering down of the original prohibition on war. In fact, the three countries’ involvement in international bodies requires each of them to participate in new wars, which are now branded as “peacekeeping” missions. There have thus been increasingly frequent calls to modify or even revoke these pacifist articles, above all in Japan (due to its geopolitical position).

The second part looks at three extensive annexes of documents that detail a specific aspect of each of the three states’ constitutional pathways. Japanese pacifism is examined with reference to the Allied documents that laid the groundwork for the post-war constitution. This leads to a consideration of current political debates concerning the amendment of the pacifist article, under pressure from Russian and Chinese interests coupled with the threat of North Korean aggression. With regard to Italy, its interest in Japan through the figure of the soldier-poet Gabriele D’Annunzio and his “samurai brother” is considered, alongside the now-forgotten “Partisans for Peace” movement, drawing on two unpublished documents. Germany, on the other hand, was divided into two countries after the World War II, with West Germany adopting a “Basic Law”, which has now been extended to the reunified Germany. The book considers excerpts from the reports of the constituent assembly concerning the adoption of the pacifist article. The equivalent East German legislation is documented in more summary terms, as that legal system is now little more than a historical footnote.

This threefold historical-constitutional inquiry provides an account of the birth and development of the pacifist article imposed by the victorious Allies, thus allowing for a better understanding of current debates concerning its impending modification.

Indice

1 Un memento preliminare: Dulce bellum inexpertis
7 Capitolo I
Tre costituzioni dalle dittature alle democrazie parlamentari
169 Capitolo II
Il rifiuto della guerra nella Costituzione giapponese del 1947
193 Capitolo III
Il rifiuto della guerra nella Costituzione italiana del 1948
219 Capitolo IV
Il rifiuto della guerra nella Legge Fondamentale tedesca del 1949
Appendici
235 I.
Giappone: Il disarmo totale in un’area dalle tensioni crescenti
269 II.
Italia: Tra guerra e pace: D’Annunzio, Shimoi Harukichi, Stalin e Bobbio
302 III.
Germania: Il ripudio della guerra e il riarmo nelle costituzioni dei due Stati tedeschi
335 Elenco degli scritti citati
371 Indice analitico
389 Indice dei nomi
399 About the Author
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