[Introduction to the Constitution #6] Are human rights unlimited? What is the 'public welfare' in textbooks? (General Theory of Human Rights / Public Welfare)

What is public welfare?

Public welfare is a general provision stating that there are limits to human rights. While it applies to all human rights, freedom of economic activity is generally more susceptible to significant restrictions.

Legal meaning and academic theories

Here, we will explain the nature of public welfare based on major academic theories and their legal meanings.

1. Theory of Unitary External Restriction

This is a principle that restricts fundamental human rights from the outside. I imagine many people might think '???' just hearing this, so I will explain it in a bit more detail. This theory posits that 'public welfare' exists 'outside' the concept of human rights. To explain what kind of thinking this is specifically, it is often said to be an idea close to the 'reservation of law' under the Meiji Constitution. Compared to other theories, it makes it easier for the state to arbitrarily restrict human rights, and it is not widely advocated today.

2. Theory of Unitary Internal Restriction

Perhaps it is easier to imagine this as the opposite of the Theory of Unitary External Restriction. It considers public welfare to be a 'principle of substantive fairness for adjusting the contradictions and conflicts between human rights.' It is a principle that restricts fundamental human rights from within, positing that public welfare exists inside (within) the concept of human rights. In other words, it determines that external restrictions are not permitted. This principle is understood to be logically and inevitably inherent in all human rights, regardless of the explicit provisions of the Constitution.

Note that this Theory of Unitary Internal Restriction is divided into 'liberal-state public welfare' and 'social-state public welfare', but since this is quite specialized content, I will omit the explanation here. I hope to explain it again if the opportunity arises.

3. Theory of Dual Internal/External Restriction

This theory divides the nature of the grounds (public welfare) for restricting fundamental human rights under the Constitution of Japan into two types, depending on the type of human right.

1. Internal restriction
This restricts human rights themselves from within and is limited only by social rules. The human rights subject to this are 'freedom of spirit' and the 'right to pursue happiness.' It is interpreted that these human rights cannot be arbitrarily restricted from the outside.

2. External restriction
The human rights subject to this are 'freedom of economic activity' and 'social rights.' These human rights are relatively actively restricted by external factors such as the interests of society as a whole or economic policies. The 'public welfare' explicitly stated in Articles 22 and 29 of the Constitution is understood to mean this external restriction.

What is comparative balancing?

Now, when we say 'let's apply public welfare!', one of the human rights will end up being restricted. Therefore, a debate always arises as to which human right should be asked to bear the greater inconvenience.

To speak on a slightly larger scale here, it becomes a question of 'which priority is more important?' This is what I crudely explained as 'comparative balancing.'

Restrictions are permitted only when the 'interests protected by restricting human rights' are clearly greater than the 'interests of human rights lost by being restricted.' This way of thinking has been supported by many judicial precedents to date, so when looking at precedents related to public welfare, please try reading them with this perspective of comparative balancing.

What is the double standard?

When I first explained the overview of 'public welfare,' I stated that 'while it applies to all human rights, freedom of economic activity is more susceptible to restriction.' This is the double standard. More accurately, it means 'restrictions on freedom of spirit are examined more strictly than freedom of economic activity.' Why is that?

This is because spiritual freedom rights have a significant aspect as human rights that protect other human rights.

For example, let's assume that in modern society, the government proposes a policy that unfairly intervenes in the business world. If people are dissatisfied with this, they can simply choose not to vote for that party in the next election, or they have the option to express their opinions through demonstrations.

However, if the freedom of thought and conscience and the freedom of expression required for that are restricted, the hurdle for expressing such intentions increases. This is what I meant earlier by 'human rights that protect other human rights'.

In addition to this, there is also the reason that regarding economic policy, it is more democratic for legislators elected by election to debate in the legislature rather than the judiciary. This is called 'judicial restraint'.

Important Precedents Regarding Public Welfare

There are multiple Supreme Court precedents where public welfare and other human rights have conflicted. In this article, we will introduce two precedents where 'freedom of economic activity,' which is said to be relatively easy to restrict, and 'freedom of expression,' which is said to be difficult to restrict, each conflicted with public welfare.

The first is the 'Pharmacy Distance Restriction Case.' This is a Supreme Court precedent that disputed whether the old Pharmaceutical Affairs Act, which required maintaining a certain distance from other pharmacies when opening a pharmacy, violated the 'freedom of choice of occupation.' For details, please see the article below if you are interested.

The second is the 'Lady Chatterley Case.' This is a case where a book translated into Japanese and published was charged with 'obscenity distribution under Article 175 of the Penal Code.' The defendant argued for the 'freedom of expression' guaranteed by the Constitution. For details, please see the article below if you are interested.

Summary of this session

• Public welfare is 'a general provision that human rights also have limitations.'

• There are various theories regarding public welfare, but generally, the difference between restricting human rights from within or from without is significant.

• Regarding public welfare, there are concepts such as 'comparative weighing' and 'double standard.'

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Related Articles

A list of other articles in the Introduction to the Constitution series can be found here.