Freedom in the Public Sphere and Democracy – What Ties Them Together ?

Abstract

This article examines the role of the concept "public sphere" in the theoretical framework of constitutional jurisprudence. Through this concept, the modern individualistic constitutional jurisprudence which considers the state and individuals as confrontational entities may be criticized as failing to take into consideration the structure of the state constructed by its citizens. This article will examine such argument by looking at, first, one of the leading Japanese liberalists, Yoichi Higuchi, and then Carl Schmitt, who has theoretical influence on Higuchi. Next, theories of John Rawls and Yasuo Hasebe will be examined. Rawls attempts to restrict, by "public reason, " activities of citizens who participate in political decision-making in order to maintain reasonable pluralism. Hasebe, on the other hand, though he shares some views with Rawls, suggests that speech in the public space itself should be restricted by reason. The author then presents the view that their theories fail to represent the political meaning of citizens' freedom correctly. Furthermore, the author presents that a free and democratic government can be justified by adopting Kant's concept of the "public use of reason" and by referring to the theory of Jürgen Habermas who finds the legitimacy of forming a public opinion in the intersubjective reason that functions in the free discussion in the public sphere. Finally, the author argues that this insight supports the view that democratic governance requires time, and justifies the theory of the chilling effect advocated in the discussion of freedom of expression.