Online ISSN 2433‐4200

Global Security Study Series No.６

Analysis and Verification of “Negative
List‒Positive List Theory”:
Based on a Survey of Domestic Law in the United
Kingdom, the United States, Germany, and France
Authored by Rintaro YAMANAKA

Center for Global Security,
National Defense Academy
Yokosuka, JapanGLOBAL SECURITY STUDY SERIES
Global Security Study Series is a collection of papers and research notes by single or multiple
authors derived through research on global security conducted at the National Defense
Academy, published in Japanese or English. The papers and research notes in this seriesconsist of analysis and writing from the individual viewpoints of the authors concerned, anddo not represent the opinions of the Japanese Government or the National Defense Academy.

© National Defense Academy, Japan Ministry of Defense
1-10-20 Hashirimizu, Yokosuka, 239-8686 JAPANGlobal Security Study Series No.6

Analysis and Verification of “Negative List‒
Positive List Theory”:
Based on a Survey of Domestic Law in the United
Kingdom, the United States, Germany, and France

Authored by Rintaro Yamanaka

December 2023

Center for Global Security, National Defense Academy
Yokosuka, Japani

Foreword
On the Publication of the Global Security Study Series
In April 2016, the Center for Global Security (GS) was launched at the National Defense
Academy. The objectives of GS include the multifaceted study of diverse security issues
involved in the safety and security of the state and its citizens along with the internationalsociety, as well as the widespread internal and external publication of the outcomes of thisresearch.
GS is characterized first by its cross-disciplinary and integrated approach to research,
blending humanities and STEM viewpoints. Making the most of the expert knowledge ofsome 300 National Defense Academy instructors, GS engages in cutting-edge
interdisciplinary research in areas including humanities and social sciences, science andengineering, and defense studies. Second, it actively conducts joint research backed up by
individual research results. By promoting collaboration and cooperation among researchersat the Academy and elsewhere, think-tanks, policymakers in government agencies, civilian
actors etc., GS is working toward the goal of becoming a true center of global security
research.
Today, GS handles a wide range of security research fields, including Asian security,
cybersecurity, space security, marine security, infectious disease control and security,
disaster mitigation and crisis management, gender and mental health, military
professionalism, security and military rules of engagement, dual-use technologies, and more.
GS handles the issues belonging to these research fields flexibly, on a general basis, as twoto three-year projects. As needed, international networks can be constructed for projectplanning, execution, presentation, and evaluation.
GS research outcomes are made widely available, usually online, on an irregular schedule in
the formats of the Study series, the Global Security Seminar series, and the Global Security
Reports. The GS Study series features original academic work and challenging exploratory
research in the form of papers and research notes. It is hoped that series publications willfurther expand the scope of GS research, while provoking active exchange among
researchers within and outside the Academy.
December 2017
Takeda Yasuhiro
Director of Center for Global Security
National Defense AcademyiiCopyright ©2017 by National Defense Academy of Japan.

Published by the Center for

Global Security, Institute for Advanced Studies, National Defense Academy, Yokosuka,
JAPAN.
iii

CONTENTS

FOREWORDii

INTRODUCTION

1CHAPTER 1

Analysis of the negative/positive theory

4

1

Schemata of the negative/positive theory

4

2

Dimensions and aspects of the negative/positive theory

7

CHAPTER 2

Domestic laws of the United Kingdom, the UnitedStates of America, Germany, and France

15

1

The United Kingdom

15

2

The United States of America

18

3Germany

23

4France27

Verification of the negative/positive theory

31

CHAPTER 3
1

Theoretical understandings that position military as
negative approach and police (and by extension the SelfDefense Forces) as positive approach

2

Theoreticalunderstandings

that

31
position

Anglo-

American-style military as negative approach andcontinental-style military as positive approach

32

In lieu of a conclusion
1

A summary of this verification of the negative/positive
theory2335Treating the negative/positive theory in terms of an“ideal type”

35

Developing and refining the negative/positive theory

39

iv

Introduction

1

Introduction
The so-called “negative list‒positive list theory” (below abbreviated to “negative/positive
theory”) has been employed to explain certain essential military characteristics, in particular
the characteristics of the Japanese Self-Defense Forces and legal systems of defense/militaryand security. The clearest explanation of this theory is a statement made in the Diet by former
Secretary of Defense and Minister of Defense Ishiba Shigeru, quoted below.
Organizations of force include the military and the police, both national organizations offorce. How do the two differ, then? … Let’s say the Self-Defense Forces Act states that you
can do this, you can do that, you may not do anything else. Laws on the military are supposed
to be written as negative lists1
Our Self-Defense Forces Act is written as a positive list, meaning that it lists various things
we are allowed to do. However, basically the legal framework for the military should be
written as a negative list, containing the things we are not allowed to do, and adding thatanything else is acceptable. I feel that there is also such a problem.2
According to this explanation, while Japan’s Self-Defense Forces Act lists “things which
may be done” or “can be done” and states that “anything else may not be done,” laws (orlegal frameworks) for the military ought in fact, list “things which may not be done” and addthat “anything else is acceptable.” In this case, the regulating format of the law (or legal
framework) which regulates the activities of the military/Self-Defense Forces is addressedas the main topic.
Negative/positive theory of this kind is believed to have begun with the arguments of
Shikama Rikio.3 Documents thereafter began to contain points dependent on this theory,4
1

151st National Diet House of Representatives Committee on Security, Minute No. 8 (June 14, 2001),
p. 8 (before Ishiba became Secretary of Defense).
2 156th National Diet House of Representatives Committee on Security, Minute No. 6 (May 16, 2003),
p. 5 (see also Ishiba Shigeru, National Defense, Shinchosha, 2005, p. 242) (both after Ishiba became
Secretary of Defense).
3 Komuro Naoki and Shikama Rikio, War and Peace Laws for the People, Sogo Horei, 1993, pp. 124ff.
(text by Shikama); Shikama Rikio, An Anatomy of the State Power, Sogo Horei, 1994, in particular pp.
312ff.; Shikama Rikio, “Essential Differences between the Military and the Police,” in Defense Studies
Vol. 21, April 1999, pp. 32ff.; Shikama Rikio “Is the SDF a Military?,” in Defense Vol. 18 No. 1,
October 1999, pp. 20ff.
4 While not listed in full here, see, for instance, Momochi Akira, Constitutional Common Sense and theCommon-Sense Constitution, Bungei Shunjusha, 2005, p. 128, and Okuhira Joji, “Forms of Legal
Regulation Regarding Military Action,” in NIDS Security Studies Vol. 10 No. 2, December 2007, pp. 67
ff.

Introduction

2and reference to this understanding was frequently made in the practice of law (albeit to an
unclear degree of acceptance); in particular, the awareness that the Japan Self-Defense
Forces Act has a peculiar format in accordance with the positive list method and principle isthought to have become a fairly widespread common understanding. Given that this may beconnected with practical arguments as well, it is thought that to enhance the rationality ofthe discussion, academic examination including methodological reflection is required alongwith analysis and verification from a specialist perspective in the fields of defense (military)
law and security law.
Incidentally, previous research on negative/positive theory includes that of Yamashita
Aihito.5 Yamashita calls the Self-Defense Forces–positive list schema “negative/positive
theory as the overall structural theory of the Self-Defense Forces Act” and questions its basic
theoretical underpinnings, recognizing the existence of the “positive list status under the lawsof the Japanese national defense legal system.”6 Yamashita asks, “Must the basis of theactivities and authority of the Self-Defense Forces be logically dependent on statute as act
of Diet?” and “Does the current Constitution consign jurisdiction of Self-Defense Force
activities exclusively to the Diet?”7 Yamashita also concludes with reference to the militarynegative list schema, by confirming through constitutional articles in the United States,
Sweden, and Spain that the regulated format of military activities in the former two countries
in particular is in accordance with the negative list method. 8 Yamashita’s paper is an
important step toward a deepening of the negative/positive theory, based on the following
points: 1) having recognized that the Japan Self-Defense Forces Act is a positive list, it
attempts to verify the understanding of the negative/positive theory that other countries’
militaries have negative lists, and 2) it clarifies that the legal foundation of thenegative/positive theory is in domestic Constitutions, particularly in connection with thelegal jurisdiction items regulated thereby. However, regarding 1), because the verification’s
purpose and character are along the lines of “an examination from the angle of how othercountries distribute this authority between administrations and parliaments, as preparatory
work to draw a final conclusion about the appropriate composition of defense legislation,”9
the basis of the verification is limited to an overview of part of the relevant constitutional
5

Yamashita Aihito, Public Legal Studies on National Security, Shinzansha, 2010, pp. 61ff.
Ibid., pp. 79ff. In this regard, from page 71, the negative/positive theory is said to include“negative/positive theory as a theory of action regulation,” discussing the problem of regulatory legal
principles for defense and police actions respectively as problems with the application of the
proportional principle. This issue is outside the scope of this paper.
7 Ibid., p. 85.
8 Ibid., pp. 104–111.
9 Ibid., p. 104.
6

Introduction

3

articles of the above three countries (effectively two, the US and Sweden). Regarding 2),
since the paper goes no further than an analytical presentation of the location of the points
in question, connecting them with existing academic discourse on public law, viewed withan interest in the verification of the negative/positive theory and the clarification of its
theoretical basis, it appears to be essentially the first step of research. Based on the state ofprevious research, the purpose of this paper is to further develop the attempt made mainly inpoint 1) above, enhancing verification from the perspective of comparative constitutionaland military law. This is expected to contribute to further developing awareness on the issues
raised in point 2) as well. “Verification” herein refers to the status quo in various countries—
here, positive law rather than social facts—and is not positioned in advance within themethodological background of verifying a hypothesis. This is because one of the problems
at hand is whether the negative/positive theory is possessed of the theoretical character of ahypothesis.
In acknowledgment of the fact that the negative/positive theory itself is ambiguous and has
multiple dimensions and aspects, this paper first specifies the targets of its verification
through analysis of the theory (Chapter 1), and then clarifies the status of domestic law—thebasis for verification of the theory—in the United Kingdom, the United States, Germany,and France (Chapter 2). Based thereon, the paper verifies the negative/positive theory andclarifies its validity and scope (Chapter 3). Finally, having summarized the results of thisverification, the paper presents viewpoints on the development and elaboration of thenegative/positive theory and indicates their implications (in lieu of a conclusion).

Chapter 1 — Analysis of the negative/positive theory

4

CHAPTER 1

Analysis of the Negative/Positive Theory(1) Schemata of the negative/positive theory
First, let us organize the various schemata involved in the negative/positive theory.
Particularly important are the following concepts: 1) “military–negative, police–positive”
and 2) “Anglo-American style military–negative, Continental military–positive.” In thispaper, the focus of analysis and verification is point 1), which should also lead to aclarification of point 2).
1) The concept of “military–negative, police (→ Self-Defense Forces)–positive”
Regarding the two “legally armed groups” in modern liberal democratic nations, thatis the military and the police, Shikama finds, by “extracting and comparing the ‘ideal
type’ of each from the concepts widely accepted by international society,” not only
differences in “functions” between the two, but also “essential differences” in“positioning within state authority,” “method of bestowing authority,” “units ofauthority,” “activity regions,” and “basic nature of duties.” 1 Of these, thenegative/positive theory clarifies the “essential differences” in “method of bestowing
authority.”
Regarding the military’s “ideal type,” “the authority of the military is regulated by thenegative list method. This method refers to a list of items which are prohibited orbanned. Thus, the attitude is one of essential freedom and unrestricted action on
principle, with restrictions presented as exceptions. In this case, the limited negative
items amounting to restrictions or prohibitions are mainly those regulated byinternational law: more specifically, by the law of war, a particular portion of theinternational law of war, which is the rules regulating restrictions on hostile acts andprotection of the victims of war. There may also be supplementary regulations withindomestic law.” Conversely, regarding the “ideal type” of the police, “the authority ofthe police is regulated by the positive list method, a list of items which may/ must be
performed. This indicates an attitude of essential restriction, particularly indemocratic nations.”2
Shikama explains the basis for this “essential difference” as follows. Military
defensive action is regulated by international law, which in turn is based on the
1 Shikama, An Anatomy of the State Power, pp. 115–120.
2 Shikama and Komuro, War and Peace Laws for the People, pp. 126–127.

Chapter 1 — Analysis of the negative/positive theory

5

principle of absolute sovereignty: therefore, regulations on the activity of the military,
the organ of a sovereign state, are essentially unrestricted, with only a few restrictions
applied due to the “law of war.” Thus, the military are regulated by the negative list
method, based on the idea that “anything not explicitly forbidden is permitted.”3 In
contrast, the activities of the police involve the use of the general exercise of sovereign
power against the people within a sovereign region, and because the arbitrary
restriction of the people’s freedom and rights by orders or force is not permissible ina liberal democratic nation, their authority must have an explicit legal basis. Therefore,
the “method of bestowing authority” on police action is the positive list method, basedon the concept of “principle-based restriction.”4
Based on the construction of the “ideal types” above and having noted that “whether
the Japanese Self-Defense Forces are a true military or not should become clear of
itself upon comparison with this ideal type,” Shikama argues that “here, the restriction
regulations of “Self-Defense Force” are an even stricter positive list than that of thepolice. That is, the attitude is of even more stringent principle-based restriction thanin the case of the police.”5 He concludes that the current legal status of Japan’s SelfDefense Forces is distinct from the “ideal type” of the military. Thus, based on theconcept of “military-negative, police-positive,” the contrasting “military–negative,
Self-Defense Forces–positive” schema appears.
Shikama then takes a critical approach to the existing “Self-Defense Forces-positive”
legal status, asking “Can the proper functions of a military be thus ensured?”6 With
this attitude toward the issues, his prescription is that the Self-Defense Forces become
a “proper military.”7Shikama argues that “if the Self-Defense Forces are, or are trying
to become, a true military, the legal system appropriate thereto must be established.”8
The relation with the “method of bestowing authority” would involve a majortransformation of the legal system, from positive to negative.
This paper will conduct an examination of the validity of Shikama’s negative/positive
theory based on its content. However, let us first confirm its theoretical characteristics,
which are (1) that it is presented in terms of “ideal types,” (2) that it presents these3 See Shikama, An Anatomy of the State Power, p. 313.
4 See ibid., p. 314.
5 Ibid., p. 315.
6 Ibid, p. 315.
7 Ibid., p. 325.
8 Shikama, “Essential Differences between the Military and the Police,” p. 41.

6Chapter 1 — Analysis of the negative/positive theory“ideal types” as showing the “essential difference” between the military and the police,and (3) that these “ideal types” are connected to normative and practical arguments
for the evaluation of Japan’s Self-Defense Forces. These characteristics require
attention when addressing Shikama’s negative/positive theory in particular; therelation of these “ideal types” with Max Weber’s concept of Idealtypus will be
discussed at the end of the paper. Regarding this point, let us note in advance thatnegative/positive theories other than Shikama’s are not necessarily possessed of thetheoretical characteristic of the “ideal type,” whether deliberately or otherwise.
2) The concept of “Anglo-American style military-negative, Continental militarypositive”
A concept of contrasting character from Shikama’s discussion above is that of“Anglo-American style military-negative, Continental military–positive.” Thediscussion of former Chair of the Joint Staff Council Kurisu Hiroomi does notnecessarily produce a precise comparison, but its basis in the perspective of thecontrast of the US and UK versus the European continent enables positioning as an
expression of this concept. Kurusu says “The view often taken in Japan is that
nothing can be done if not permitted by act of parliament; that is, that act ofparliament creates administrative authority. This is the former attitude of German
law, an ideology which has permeated Japanese law thoroughly due to the acceptanceof German law since the Meiji period. In contrast, the Anglo-American conception
is that the government independently holds administrative and executive power, thus
can handle matters at its own discretion except for those which are prohibited byparliament/congress as the representative of the people.”9 Although we must allow
for the general-readership context in which this explanation takes place, it is notwithout academic problems. Even so, when contrasted with Shikama’s phrasing of
the problem as the “essential differences” of the military compared to the police, this
explanation has its own theoretical significance in its creation of a path to awarenessof the diverse images of the military existing among different regions, cultures,
and/or legal systems. Therefore, it is treated here as a target for verification as adifferent schema of the negative/positive theory from Shikama’s.
However, Kurisu himself states that “in the postwar period, after total victory on thepart of the Allies, the world has almost entirely taken on Anglo-American styleideology. With no act of parliament to authorize it, administrative power can be
executed wherever no ban is in place. Even Germany clearly took up Anglo-

9 Kurisu Hiroomi, Create National Defense Forces for Japan, Shogakukan, 2000, p. 100.

Chapter 1 — Analysis of the negative/positive theory

7

American style practices after the war.”10 In that case, the “Anglo-American style
military-negative, Continental military-positive” comparison may have lost its
validity since the war. However, to draw a conclusion based on the issue of legal
regulations on military’s external action, it cannot be said that “the world has almost
entirely taken on Anglo-American style conception.” Even in postwar Germany, an
overview of the formational history of its defense and security legislation does notoffer much support for this view of the matter. Given that there is still significancein verifying whether the concept of “Anglo-American style military-negative,
Continental military-positive” aligns with actual military law in the postwar
European continent, this paper takes this point as a target for verification.

(2) Dimensions and aspects of the negative/positive theory
As noted above, the various patterns of the negative/positive theory must be consideredin its verification; in addition, the theory has various dimensions and aspects. This section
will indicate a path toward their elaboration and development through the perspectives ofanalysis and evaluation of the negative/positive theory.
1) Classification of duties and stages in the negative/positive theory
a. Classification of duties
First, we must clarify what scope of duties the negative/positive theory concerns.
When Shikama refers to the negative list as the “ideal type” of the “method of
bestowing authority” on the military, it is clear that he has in mind its relationshipwith the main military duty of military defense; in addition, he also uses thenegative list to explain relations with other external duties, in particularpeacekeeping in international society. Elsewhere, Shikama explains that when the
military is involved in the duty of maintaining domestic public order, as an issueof the exceptional “extended use” of the military for police functions, “in general,
the same stringent restrictions are placed on the format of those activities as forthe regular police, and the legal regulations for that purpose are explicitly
indicated.” 11 Based thereon, when discussing the negative/positive theory, we
may note that the distinction between external and internal military duties issignificant, and that it is related to external military duties.

10 Ibid., p. 101.
11 Shikama, An Anatomy of the State Power, p. 294.

Chapter 1 — Analysis of the negative/positive theory

8

Based on this distinction among military duties, the Japan Self-Defense Forces
Act is characterized by a general positive list in its relations to all duties of the
Self-Defense Forces—that is, defense and the maintenance of public order(Article 3-1), handling of situations that will have an important influence (item 21), and peacekeeping in international society (item 2-2). With regard to therelations herein, Shikama does not consider the positive-list approach taken by the
Self-Defense Forces Act to the SDF duty of maintaining public order domesticallyto be a deviation from the military “ideal type.” Rather, he states that “as SDF
public security operations (Self-Defense Forces Act Article 78) are functions
supplementing the regular police, naturally the legal regulations concerning thepolice apply. There is nothing unusual about this.”12 Other commentators on thenegative/positive theory also appear to hold the same opinion.
The above suggests that with regard to the negative/positive theory, it isappropriate to position the “military-negative, Self-Defense Forces–positive”
contrast in the context of external duties, and to consider it a target for the next
chapter’s verification. In contrast, the context of internal duties involves an
explanation of both the military and the Self-Defense Forces with the positive list
as a rule, within this theory. While verification of this point is not impossible, it is
not a target for the examination in the next chapter.
b. Classification of stages
Shikama’s negative/positive theory cites the “method of bestowing authority” as
one “essential difference” between the military and the police and contrasts thispoint with regard to the military and Self-Defense Forces as well. This argument
requires analysis of which stages of regulations are concerned with militaryactivities.
According to Article 5 of the Act for Establishment of the Ministry of Defense,“the duties of the Self-Defense Forces, the organization and composition of SelfDefense Forces troops and institutions, the command of the Self-Defense Forces,
and the actions and authority of the Self-Defense Forces shall be regulated by the
Self-Defense Forces Act (including orders based thereon).” According to thestructural composition of the Act, content related to SDF activities is organizedby the Act into three stages: “duty” (Section 1 Article 3), “action” (Section 6), and“authority” (Section 7). With regard to these regulations, (1) the Self-Defense
Forces may act only within the scope of “duty” listed in the Act; (2) when
conducting activities which fall into the category of “action” (in the broad
12 Ibid., p. 315.

Chapter 1 — Analysis of the negative/positive theory9

sense)—“deployment,” “dispatch,” and (in the narrow sense) “action”—the SelfDefense Forces may conduct only those “action” (in the broad sense) listed in theAct; (3) during activities, with regard to certain items13 such as the use of armed
force, the use of weapons, etc., the Self-Defense Forces and SDF personnel may
use only the “authority” listed in the Act. In this sense, we may consider the Act
to be a positive list in the three stages of “duty,” “action” (in the broad sense), and“authority” during SDF activities. With regard to points (2) and (3), on May 26,
2014, House of Councilors member Hamada Kazuyuki issued a “Question on
Negative and Positive Lists in Defense Legislation” asking for the view of thegovernment on “whether Japanese defense legislation should be considered apositive list method.” In response, the government stated, “While it is not entirely
clear what the defense legislation mentioned by the Honorable Member refers tospecifically, the Self-Defense Forces Act (No. 165, 1954) regulates Self-Defense
Forces actions and authorities individually, and is considered a so-called positive
list.”14
Based on the classification of the stages of “duty,” “action,” and “authority,”
because Shikama’s negative/positive theory focuses on the “method of bestowing
authority” of the military, it can be positioned, when realigned to the three stages
in the Self-Defense Forces Act above, as a view focusing primarily on the“authority” stage. This is also clear from Shikama’s discussion of thenegative/positive theory as an issue of the legal regulation of the “use of force”
and the “use of weapons.”15
In addition, the question arises of whether, regarding the negative/positive theory,the contrast of the military and the Self-Defense Forces applies to the regulations
for “methods of bestowing authority” at the stage corresponding to “action.” In
the past, Shikama raised the problem of “the bestowing of SDF authority ad hoc”
in Japanese safety and security legislation, citing the 1992 Act on Cooperation
with United Nations Peacekeeping Operations and the 1999 “guidelines-related

13 The demarcation of this scope is an issue for discussion, particularly regarding the parts whichcannot be explained by the principle of “Vorbehalt des Gesetzes” in the study of administrative law.
Naturally, for activities outside this scope, a legal basis of act of Diet is not required.
14 “Response to House of Councilors Member Hamada Kazuyuki’s Question on the ‘Positive List’ and‘Negative List’ in the Defense Legal System” (June 3, 2014; 186th session, Response No. 105/to
Hamada Kazuyuki, House of Councillors).
15 See Shikama, An Anatomy of the State Power, pp.315ff.

10

Chapter 1 — Analysis of the negative/positive theory

Acts.” 16 Since the first issue that arose when establishing these acts was theirstatus as the legal basis for the dispatch of the Self-Defense Forces, it was thought
to be in effect a positive list problem at the “action” stage of the Self-Defense
Forces Act. Later commentators on the negative/positive theory have taken the“action” stage as well as that of “authority” more clearly into consideration.17
Based on these points, in contrast with Japan’s Self-Defense Forces Act, which isa positive list at the “action” stage as well as the “authority” stage, it is thought tobe appropriate to take as one of the next chapter’s targets for verification thequestion of whether other countries’ laws on the military are negative lists at theequivalent stages.
2) Regulation methods and principles in the negative/positive theory
The negative/positive theory indicates that there are two methods by which laws
regulate the activities of “legally armed groups.” The first is the positive list
method (a list of things which “may be done”), considered the “method of
bestowing authority” on police and the SDF. The second is the negative list
method (a list of things which “must not be done”), the “method of bestowing
authority” on the military. Here “may be done” and “must not be done” refer tothe legal dimension. In some cases, opinions may differ on whether a given set of
regulations is closer in character to a negative or positive list, and the two may
overlap. In addition, within the negative/positive theory, the positive list method
is linked with the attitude that “only activities with a legal basis may be done”(below, the “positive principle”). In contrast, the negative list method is linked not
only with the attitude that “activities prohibited by law must not be done” but alsowith the attitude that “activities not prohibited by law may be done” (below, the“negative principle”). This attitude is expressed by Shikama, in his explanation of
the negative list, as “unrestricted in principle.” It also appears in Ishiba’s
interpretation that “anything else is acceptable” (see the quotation at the beginningof this paper).18

16 Shikama, “Is the SDF a Military?” pp. 20ff.
17 In Okuhira, op. cit., pp. 88ff., Japan’s law is confirmed to use the positive list method at the stagesof “action” and “authority.” In Yamashita, op. cit., pp. 79ff., the positive list method of Japanese law
is confirmed regarding the “activities (actions) and authority of the SDF.” The Response of June 3,
2014, noted in the text also indicates that “the actions and authorities of the SDF” use the positive list.
18 Another issue is the basis for the establishment of both the positive and negative principle, —in thiscase, their legal basis. A more detailed explanation, albeit limited to the locus of the problem, isprovided below. Regarding the negative principle in relation to the “method of bestowing authority”

Chapter 1 — Analysis of the negative/positive theory

11

Thus, within the negative/positive theory, the method of regulation is closely
linked with the principle of regulation. However, an analysis of their relationshipis required. First, regarding the positive principle and the positive list method, as
regulations using the positive list method are normally based on the positive
principle, it is understandable that the negative/positive theory has hardly paused
to consider the distinction between the two. To begin with, legislative techniques
based on the positive principle include (1) the regulation method of making a
restrictive list of authority based on the individual bestowal method, generally
considered the method of the positive list in the negative/positive theory.19 Thereis also (2) the regulation method of bestowing authority in general, based on thecomprehensive bestowal method20, with some actual legislative examples tending
toward that direction (the comprehensive bestowal regarding the “use of force” inArticle 88 of the Self-Defense Forces Act21). In that case, the connection between
for military external duties, the basis in domestic law is an issue as well as in international law, to beclarified through discussion of comparative constitutional law and comparative military law in thefollowing chapters. Contrasted with the negative principle considered to exist in relation with external
military duties, Japan has a peculiar legal status in which even the SDF’s external duties are based on
the positive principle. The problem of its basis in legal principles—as Yamashita puts it, the “need toreconsider the theoretical meaning of determining all SDF activities through Diet legislation, inparticular the Self-Defense Forces Act” (op. cit., p. 84)—is the fundamental problem specific toJapanese defense and security law. Yamashita interprets this, legitimately, as “a problem of thejurisdictional distribution of the administration and the parliament (Diet), that is, whether thejurisdiction configuring the norms determining SDF or military activities, authority, and so on belongs
to the administration or to the parliament (Diet)” (op. cit., p. 80). Other points also require study, forinstance the characterization in function theory of external military action, including military defense(for a discussion of the relation of this point with the negative/positive theory, see the above, pp. 85ff.),
the relation with the principle of rule of law (or das Rechtsstaatsprinzip), in particular “der Grundsatz
der Gesetzmäßigkeit,” and the position of the superior military authority within the separation of
powers. However, the elucidation of these fundamental problems exceeds the scope of this paper andrequires meticulous preparation. Thus, interpretative discussion will be left to further studies, while
here confirming only the locus of the issues and their relation to the content of this paper.
19 Okuhira, op. cit., expresses this on p. 92 as “the positive list method, which is the limited list method.”
20 Relatedly, Okuhira, op. cit., refers on p. 98 to the “perspective of the style in which regulations on

external action are written,” noting that “at the level of the legal system of domestic defense, the option
exists not to describe in detail the content of actions.”
21 With reference to the point that Article 88 of the Self-Defense Forces Act touches only on the

bestowal of authority regarding hostile acts, Shikama also emphasizes its limits (see Shikama and12Chapter 1 — Analysis of the negative/positive theory

the positive principle and the positive list method is not inevitable. Rather, theperspective of analysis of their mutual relationship takes on significance when thetwo have been theoretically distinguished.
Viewing the issue based on distinguishing the regulation principle and theregulation method, a problem regarding the negative principle and negative list
method becomes evident. The negative list regulation method is valid as long as
it is based on the principle that “activities prohibited by law must not be done,” soit should not necessarily entail the attitude that “activities not prohibited by law
may be done.” The problem is why this connection is believed to exist regardless.
This point will be specifically clarified in the next chapter through the approachof comparative constitutional law and comparative military law and is thus noted
to exist only.

3) Classification and mutual relations of regulation formats in the negative/positive
theoryShikama’s negative/positive theory, regarding the positive principle and positive
list method as the “method of bestowing authority” on the police, discusses therelations with domestic law and particularly regulation by act of parliament; incontrast, as noted above, regarding the negative principle and negative list theory
as the “method of bestowing authority” on the military, Shikama discusses therelations “mainly” with the regulations of international law, stating that “theauthority of the military is regulated by the negative list method. In other words it
is essentially unrestricted, with some exceptional restrictions mainly underinternational law.”22 In any case, Shikama also adds, as stated above, that “there
may also be supplementary regulations within domestic law,” and according toIshiba, “Acts on the military are actually supposed to be written as negative
lists.”23 In addition, some subsequent writings on the negative/positive theory also
discuss it in terms of the relations of act of parliament as domestic law to thenegative principle and negative list method as the “method of bestowing authority”
Komuro, op. cit., pp. 139–140). This shows that the evaluation of whether the bestowal of authority
in a given article is comprehensive or restrictive may vary by commentator. In any case, this does notrender it impossible to make a theoretical division of bestowal formats into general/comprehensive
and individual/limited, nor is this a meaningless process.
22 Shikama, “Essential Differences between the Military and the Police,” p. 33.
23 As cited at the beginning of this paper, he also said that “basically the legal framework for the

military should be written as a negative list.”Chapter 1 — Analysis of the negative/positive theory

13

on the military.24 Bringing up the relations with domestic law in this context of
discussion is a legitimate approach. That is to say, the empowerment andrestriction of military activities are also issues pertaining to domestic law under
the Constitution, the normative framework for empowerment and restriction; afocus on the aspect of restriction brought to the fore in the negative principle andnegative list method, based on the relations with international and domestic law,
may involve (1) the confirmation or acceptance of the specific content of therestrictions of international law within domestic law; (2) in case of conflicts or
doubts on the interpretation of the content of restrictions regarding militaryactivities in international law, the clarification and specification of this content
through the establishment of domestic laws in each country based on theirinterpretations of international law; (3) the establishment of domestic laws inorder to add to the content of the restrictions of international law. Given thiscontext, the question of whether the “method of bestowing authority” on the
military is done through the negative principle and negative list method calls forverification in relation to domestic law as well as international law, andparticularly in relation to act of parliament from the viewpoint of comparison with
the Japan Self-Defense Forces Act. 25 However, Shikama’s negative/positive
theory in particular lacks sufficient verification with regard to the relations withdomestic law. Based thereupon, this paper will also examine the question ofwhether the negative principle and negative list method are used in foreign armed
forces from the perspective of domestic legal studies. It is hoped that theexamination of international law, which exceeds this author’s capacity, will betaken up from the perspective of a specialist in the field.
When focusing on domestic law in this way, and moving further to include
regulations beyond the scope of law—for instance, basic guidelines, policies,
strategies, plans and budgets concerning defense, security, and military operations,as well as military orders and instructions, etc.—it should become possible toanalyze and elaborate on the classification of regulation formats of “methods

24 Yamashita, op. cit., pp. 79ff. In this case, the expression “the ‘problem of the legal format’ in which

overall SDF activities and authorities are created through acts of parliament” is used to focus on the
problem of the legal format.
25 As well, a point requiring attention during examination including aspects of both international anddomestic law is that—strictly speaking—the primary target of the “bestowal of authority” is the state
as a legal subject in international law and the legislative and executive branches in domestic law, andthat the “bestowal of authority” on the military is derived therefrom.

Chapter 1 — Analysis of the negative/positive theory

14

bestowing authority” on the military, as well as their mutual relations, throughconnection with the negative/positive theory. Based on this perspective, it is also
possible to approach arguments equivalent to the negative/positive theory throughtheir relations with regulation formats at lower levels than act of parliament andConstitution, i.e., operations orders and troop operation regulations.26
That said, this paper’s topic will be limited, for the moment, to the verification ofrelation with act of parliament. That is because, if the basis of interest in thenegative/positive theory is the comparison of the establishment of the “method of
bestowing authority” on the Self-Defense Forces via the positive principle andpositive list method with that of foreign armed forces, when taking into accountdomestic law as well, in direct terms, the primary point of interest for verificationis thought to be the relations with the regulation format that is act of parliament.
In actuality, the negative/positive theories of Ishiba and Yamashita quoted at the
beginning of the paper also focus on act of parliament in their comparison of the“methods of bestowing authority” on the military and the Self-Defense Forces,
showing interest of this kind. When focusing on act of parliament in this way,
based on superior/inferior relationships with Constitution (in the formal sense),
the mutual relations therewith appear as a more fundamental problem, as will beclarified in the following chapters. Thus, the formally superior law that is
Constitution is also to be examined. To proceed to the examination of ordinancesand other regulation formats at levels below act of parliament and Constitution,
the first essential step is to examine act of parliament and Constitution, which
serve as the normative framework for the restriction and empowerment of theseregulations. Therefore, the paper begins by addressing this point.

26 Sakamoto Sukenobu, “Organizing the Legal Environment for Issuing Operations Orders in the‘Negative List Method’”, Defense Vol. 32 No. 1, October 2013, pp. 158ff., focuses on the problem of
the operations orders level.

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

15

CHAPTER 2

Domestic laws of the United Kingdom, the United States ofAmerica, Germany, and France
The subject of the negative/positive theory is legal regulations for military activities, inwhich case, based on the key points of the examinations in the previous Chapter, (1) interms of the framework of Japanese laws, each stage of “action” and “authority” can beseparated in the context of external “duty,” (2) problems of methods and principle of legal
regulations are included, and furthermore, (3) development is based on differentiation andmutual relationship of the form of internal laws. As such, in this Chapter, in terms of themethods and principles of the negative and positive regulations, we target regulations
equivalent to “action” and “authority” of external “duty,” in which case, we verified thenegative/positive theory based on differentiation and mutual relationship of the forms ofdomestic laws. At this time, we supplemented the result of the Global Security Report1
of our center, especially reviewing the legal systems of four western countries, to clarify
the facts—the state of the positive law—which is the foundation of the verification of thenegative/positive theory. Of course, there is no discussion that is identical to thenegative/positive theory in various countries, and laws of various countries are notnecessarily organized in a system of “duty,” “action,” and “authority” as in Japanese laws.
Yet, the present paper at times explains the legal systems of foreign countries based onsuch a framework because it is necessary to verity specific negative/positive theory; thus,
it is limited to that level. We are not stating that such explanation is provided in various
countries.

(1) The United Kingdom2
Because the United Kingdom (the U.K.) has no constitutional code, its situation is unique.
However, its 1689 Bill of Rights prohibits the maintenance of a standing army in the U.K.
without an agreement by the Parliament. Thus, in the U.K., a standing army cannot beestablished or maintained without an Act of congress enacted every five years. In that1

Yamanaka Rintaro (ed.), Domestic Laws and Regulations Governing Military Activities:

Comparative Studies of Seven Countries, Center for Global Security, 2018.
2

For the UK, we referred to pp. 36ff. of Yamanaka (ed.), Domestic Laws and Regulations Governing

Military Activities: Comparative Studies of Seven Countries (the part written by Yamazaki Motoyasu)
and added analysis and examination from the perspective of the negative/positive theory as needed
while supplementing a survey and description.

16

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

sense, ultimately, there is a positive principle in relation to act of parliament. Presently,
there is the Armed Forces Act,3 enacted in 2006 and most recently updated in 2016 as anact of parliament that stipulates the legal basis to maintain a standing army, which at thesame time establishes the regulations for the substance and procedures related to military
service. Indeed, it is unrealistic not to enact or update such laws, and its principle in asense is a mere formality. The formulation of the abovementioned Bill of Rights is“important not because there is now any possibility that Parliament withdraw authority
for the continued maintenance of an army, but because it asserts that the armed forces areconstitutionally subordinate to Parliament” according to textbooks on the British
constitution and administrative laws.4
Traditionally, under such circumstances, the royal prerogative has occupied an important
position in the U.K. According to the Review of the Executive Royal Prerogative Powers:
Final Report published by the Ministry of Justice in 2009, “The Royal prerogative iscentral to the existence and organization of the Armed Forces. The prerogative sits
alongside a range of primary and secondary legislation, however, which regulates suchmatters as service discipline and certain functions of the Secretary of State for Defence.
The prerogative is therefore one element of a sophisticated structure for the administrationof the Armed Forces.”5 As such, it is difficult to clearly specify the extent of the royalprerogative, which coexists with the authority of act of parliament, but in the maincontents of a precedent, “the War Prerogative” includes powers to “declare war,” “deploy
the armed forces,” “determine when to deploy the armed forces,” determine the objectivesof the deployment,” “determine the armament of the armed forces,” and “conduct theoperations of war.”6 The aforementioned final report states that under the classificationof “powers relating to armed forces, war and times of emergency,” its contents that areclosely related to the present study are “right to make war or peace or institute hostilities
falling short of war,” “deployment and use of armed forces overseas,” “control,

32016 c.21; 2006 c.52

4Anthony Bradley and Keith Ewing, Constitutional and Administrative Law, London: Pearson

Education, 13.ed., 2003, p.328.
5

Ministry of Justice, The Governance of Britain Review of the Executive Royal Prerogative Powers:

Final Report, p. 13.
6

Rosara Joseph, The War Prerogative: History, Reform and Constitutional Design, Oxford: Oxford

UP, 2013, p.116.

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

17

organization and disposition of armed forces,” and “the government and command of thearmed forces.”7
The royal prerogative is in fact exercised by the Prime Minister and the Minister ofDefense within a framework of a cabinet decision, granting duties to the armed forces,
determining a deployment of the armed forces,8 and permitting the use of force. In fact,
the “National Security Strategy and Strategic Defence and Security Review,” formulatedby the government in 2015, contained a description of the mission and role of the armed
forces within the entire National Security Strategy and Strategic Defence,9 identifying acertain degree of armed forces deployment. The government determines and orders armed
forces deployment within the framework of this kind of foundational strategy and thenpermits or regulates the use of force through an approval such as the rules of engagement.
Such a case requires decisions, orders, and approvals based on the royal prerogative;
however, a general or individual statutory provision on military activities from an Act ofParliament is not necessary. In recent years, the overseas deployment of armed forces
undertakes a practice of reporting to and asking for approval from Parliament. Suchprocedures might be regularized by an act of parliament or a resolution (House ofCommons Constitution Committee 12th Report [2013–2014]10). Parliament involvement
is worthy of attention moving forward, but this is more of a problem of political control
than of legally controlling military actions in a negative and positive form.
Meanwhile, Parliament has the authority to abolish, limit, or maintain the royalprerogative, which is consistent with the mindset of parliamentary sovereignty. 11 The
aforementioned final report argues that “Parliament can legislate to modify, abolish or
simply put on a statutory footing any particular prerogative power. Prerogative powers

7

Ministry of Justice, The Governance of Britain Review of the Executive Royal Prerogative Powers:

Final Report, p. 32. However, for the last one, the following is added: “government and command of
the armed forces belong to the Her Majesty.”
8

In this paper, when we use the word dispatch without quotation marks, we are referring to the generalmeaning of “sending with some mission.” “Dispatch” (haken) in Japanese law (“disaster relief
dispatch” and “overseas dispatch”) has a narrower meaning and a characteristic of a legal term; thus,
in this paper, we used quotation marks to refer to this sense.
9

See National Security Strategy and Strategic Defence and Security Review, 2015, pp.23ff.

10

House of Commons, Political and Constitutional Reform Committee, Parliament's role in conflictdecisions: away forward, Political and Constitutional Reform - Twelfth Report of Session 2013-2014,
2014, pp.13ff.
11

Hilaire Barnett, Constitutional and Administrative Law, London: Routledge, 13.Ed., 2020, p.115.

18

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

are abolished by clear words in statute or where the abolition is necessarily implied.” 12Thus, unless royal prerogatives are abolished or amended by an act of parliament, suchprerogatives can be exercised; this is therefore consistent with the negative principle inrelation to act of parliament.
Let us now introduce a perspective of differences in the stages of “duty,” “action,” and“authority” using the expressions of Japanese laws. No positive principle exists in relationto act of parliament at any stage in terms of the external duties of the armed forces. Instead,
there is, in fact, the negative principle, which holds true because an act of parliament canbe used to regulate a wide extent of royal prerogatives.

(2) The United States of America13
According to the Constitution of the United States of America (USA), the President is thesupreme commander of the army, navy, and state militias (United States Constitution,
Article 2, Section 2, Clause 1). This provision is the starting point of presidential authority
regarding military activities, and within the range of authority derived from it, thePresident grants duties to the armed forces, determines deployment, and permits the useof force. In addition, clauses of executive power (Article 2, Section 1, Clause 1) anddiplomatic authority (Article 2, Section 2, Clause 2) are incorporated with the clause on
the supreme commander, and specific duties may be based on protective authority.
As an important precedent for the clause on the supreme commander, a court opinion by
Justice Hugo Black on the Supreme Court ruling on what is referred to as the Steel Seizure
Case presumed that when judging whether the President has authority to seize a steel
plant, such order must be founded on an act of congress or the Constitution of the USA.14
In this case, the issue was the seizure of a domestic private company, and as issues of
emergency (during a war) had been intertwined, how it was handled requires attention;
however, it is also valid as a general theory for the present topic of “bestowing of authority”
in relation to an external duty for the armed forces. The concurring opinion of Justice
Robert Jackson on the Steel case was that this case would “be discussed in case books for

12

Ministry of Justice, The Governance of Britain Review of the Executive Royal Prerogative Powers:

Final Report, p. 8.
13

Yamanaka (ed.), Domestic Laws and Regulations Governing Military Activities: Comparative

Studies of Seven Countries, pp. 8ff. (part written by Tsuji Yuichiro).
14

Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579(1952), at 585.

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

19

posterity and will be referred to as a ‘precedence’ by the supreme court at criticaljunctures.”15
Justice Jackson also analyzed the situations in which the President exercises authority inthree categories. First, when the President takes an action based on constitutional
authority, but simultaneously, if an act of congress also authorizes the President, theauthority of the President becomes the most powerful as it is based on the Constitution
and the act of congress. This is the first of three categories, and according to its expression,“When the President acts pursuant to an express or implied authorization of Congress, his
authority is at its maximum, for it includes all that he possesses in his own right plus allthat Congress can delegate.”16
However, if an act of congress has no such explicit or implied authorization, the question
becomes more challenging and important in relation to the negative/positive theory.
Justice Jackson’s concurring opinion states, “When the President acts in absence of either
a congressional grant or denial of authority, he can only rely upon his own independent
powers” as the second category.17 At this time, even without an authorization by an actof congress, the President’s “own independent powers” might allow for an action basedon the authority derived from the clause on the supreme commander. This is suggestive,
as it includes an opportunity to deny the positive principle in relation to act of congress.
In fact, presidents after Harry S. Truman have deployed armed forces based on theirconstitutional authority derived from the clause on the supreme commander without an
authorization by an act of congress permitting the use of force. However, in the second
category, Justice Jackson’s concurring opinion continues, “there is a zone of twilight inwhich he [the President] and Congress may have concurrent authority, or in which its
distribution is uncertain.”18
Furthermore, the concurring opinion of Justice Jackson states that in the third category,“When the President takes measures incompatible with the expressed or implied will ofCongress, his power is at its lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of Congress over the matter.”19 If
15

Komamura Keigo, “A Critical, Constitutional, and Political ‘Zone of Twilight’ — Analysis of theConcurring Opinions of Justice Jackson in the Steel Seizure Case,” in Okudaira Yasuhiro/Higuchi
Yoichi (eds.), Constitutional Law of Crisis, Koubundo Publishers Inc., the 2013 collection, p. 147.
16 343 U.S. 579(1952), at.635.
17

343 U.S. 579(1952), at.637.

18

343 U.S. 579(1952), at.637.

19

343 U.S. 579(1952), at 637.

20

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

Congress uses a statute to explicitly and implicitly limit or prohibit the President fromexercising their authority, it would be equivalent to the third category, and such judgment
is consistent with the negative principle in relation to act of congress. Indeed, there remain
issues of the possibility, matters, and forms of limiting or prohibiting the use ofpresidential authority—in the context of this paper, the authority associated with theexternal deployment of armed forces and use of force—by act of congress and theconstitutional interpretation of matters along with the issue of whether prohibition stands
in the negative principle in relation to act of congress.20
With the reservation that this issue includes all abovementioned points, we can summarize
that in the USA, there is a negative principle in relation to act of congress in the context
of external duties for the armed forces; simply put, this principle stipulates that actions
not prohibited by act of congress are allowed. Such principle holds because wide-ranging
authority to order and direct military activities is granted to the President by theConstitution of the USA.
The USA doesn’t offer no opportunity for the positive principle in relation to act ofcongress in terms of the external duty of the armed forces. This is because following theenactment of the Constitution of the USA, and even today, the authoritative relation
between the President and Parliament remains complex because of the Congress’s
adoption of the War Powers Resolution in 1973 21 for the Vietnam War, limiting thePresident’s authority, which was passed again by overturning the President’s veto. With
the same resolution, the President’s authority as supreme commander to “introduce
United States Armed Forces into hostilities, or into situations where imminent
20

Specifically, the relation between the presidential authority based on the clause on the supremecommander, declaration of war, and parliamentary authority to enact the “Rules for the Government
and Regulation of the land and naval Forces” (Article 1, Section 8, Clause 14) becomes the point of
discussion.
21

Pub. L. 93-148(87 Stat. 555) See Matthew C. Weed, The War Powers Resolution: Concepts andPractice, Updated March 8, 2019(CRS Report for Congress, R42699) for the background, contents,
and challenges of enacting the War Powers Resolution and subsequent development. Also refer toMiyawaki Mineo, War Powers Resolution of the President of the United States, Educational
Publishing House, 1980; Miyawaki Mineo, Modern American Diplomacy and Civil-military
Relations: Theory and Practice of Presidential and Congressional War Powers, Ryutsu Keizai
University, 2004; Hamaya Hidehiro, Study of the War Powers Resolution of the United States: Its
Influence on the US-Japan Security System, Seibundo Publishing Co., Ltd., 1990; Tomii Yukio,
Overseas Deployment and Parliament: Comparative Constitutional Discussion for Japan, the USA,
and Canada, Seibundo Publishing Co., Ltd., 2013, pp. 342ff.

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

21

involvement in hostilities is clearly indicated by the circumstances” is restricted andlimited to the following cases: (1) when war is declared; (2) specific statutory
authorization is issued; or (3) a national emergency is created by an attack on the USA,
U.S. territories, possessions, or the U.S. armed forces (the same resolution, Article 2,
Clause c). Though opinions vary regarding whether the clause lists limited situations
where armed forces can be introduced: if we understand it as a limited enumeration, thePresident’s introduction of armed forces as supreme commander excluding a national
state of emergency requires a declaration of war or a special authorization by an act ofcongress. 22,23 An act of congress determining such authorization, for example, is the
Authorization for Use of Military Force against Iraq Resolution of 2002.24 According toClause a, Section 3, authorization is given as follows: “The President is authorized to use
the Armed Forces of the United States as he determines to be necessary and appropriate,”that is, (1) “in order to defend the national security of the United States against thecontinuing threat posed by Iraq” (clause 1) and (2) “in order to enforce all relevant United
Nations Security Council resolutions regarding Iraq” (clause 2).25
According to the War Powers Resolution, in relation to act of congress, instead of thenegative principle, the positive principle partially and selectively exists with a declarationof war, excluding a case of national emergency.26 However, in the existence and scope of
22

According to the interpretation criteria of the resolution, to derive authority from a ratified treaty, or

legal provisions including the Appropriation Act, such provisions (in the case of a treaty, provisionsof the statute to implement treaties) must be authorized, and doing so is prohibited unless it is anauthorization by an act of Congress as discussed in the resolution (Article 8, Clause (a)(1) and (2)).
23

According to Article 5 of the War Powers Resolution, if troops are deployed without authorization

by an act of Congress or a declaration of war despite it being a requirement, the troops must bewithdrawn within a certain period—within 60 days of a request or submission of a report. Exceptions
are possible only when Congress declares war, provides a special authorization for the use of themilitary, legally extends the duration, or Congress cannot physically meet because of an armed attack
against the United States. Other than the latter case, a declaration of war or an authorization by an actof Congress is still necessary.
24

Pub.L. 107-243(116 Stat.1498.)

25

The resolution has shown that this provision is equivalent to a special authorization by an act ofCongress planned by the War Powers Resolution (Clause c, Item 1).
26

The provision of the resolution is the “control of procedures; in other words, whether to commit the

US military” (Yamashita, op.cit., p. 108), but within the procedure for doing so, the resolution
demands a declaration of war (albeit selectively), and the basis for an act of Congress; thus, the relation
with the positive principle may be discussed.

22

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

such principle, we must note that a conflict between Congress and the President regarding
authority causes fluctuations. With such a conflict, according to the interpretation of theexecutive department since the 1990s—the Office of Legal Counsel (OLC) of the
Ministry of Justice—the meaning of “war” in the phrase “to declare war”—the authorityof which belongs to Congress in the Constitution of the USA (Article 1, Section 8, Clause11)—acknowledges the necessity of an authorization by an act of congress or adeclaration of war. Meanwhile, for limited military operations within foreign countries toprotect important national interests, that is, military operations that do not meet thedefinition of “war” in terms of the same article and clause in reference to the “anticipatednature, scope, and duration” of the planned operation—the so-called Military Operation
Other Than War (MOOTW)—the President can order the armed forces to engage inlimited operations according to diplomatic authority or based on the clause on the rightto execute or the clause on the supreme commander in Article 2 of the Constitution of the
USA without a declaration of war or an authorization by an act of congress. 27 Past
presidents have deployed armed forces on external duties based on clauses of theConstitution, such as the clause on the supreme commander, without a declaration of war
or an authorization by an act of congress not limited to situations covered by Article 2(c)of the War Powers Resolution. As such, from the viewpoint of constitutional
interpretation and practice with a limited view of congressional authority, it can besummarized that the scope of the positive principle is limited in terms of the War Powers
Resolution.
Under the above legal framework, the following military activities are currently stipulated.
The National Security Strategy of the United States of America, approved by the
President in 2017, and the National Defense Strategy of the United States of America,
approved in 2018 by the Secretary of Defense, place missions of the armed forces under
the national security and national defense basic strategy, specifying the goal and form ofarmed forces deployment.28 In addition, in terms of the use of force, the Standing Rules
of Engagement (SROE) are formulated as a direction of the Chairman of the Joint Chiefsof Staff through the approval of the Secretary of Defense,29 implementation guidance on
the use of force to execute missions or self-protection is determined, and steps are
established along with the basic policy for the action taken by the commander during

27

Authority to Use Military Force in Libya, 35 Op. O.L.C. at 10(2011); April 2018 Airstrikes Against

Syrian Chemical-Weapons Facilities, 42 Op.O.L.C. at 10(2018).
28

National Security Strategy of the United States of America, 2017, p.4; Summary of the National

Security Strategy of the United States of America, 2018, p.4.
29

CJCSI 3121.01B 13 June 2005, 6.

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

23

military operations.30 With this discipline as the basic format, the use of force is permitted
or restricted.
To conclude this section, let us venture to use the wordings in the Japanese law tosummarize the above examination of the USA, by introducing a viewpoint on differencesin the stages of “duty,” “action,” and “authority.” As has often been revealed, in the USA,in terms of the relation of the external “duty” of the armed forces with act of congress—
though we must consider the possibility of prohibition and restriction as discussed
above—basically, we can summarize that a negative principle exists. This principle—theprinciple of being able to take actions that are not specifically prohibited by act ofcongress—stands because of constitutional clauses such as the clause on the supremecommander. The President directly relies on such constitutional clauses and grants
individual or general military “duty” through basic policy, strategic documents,
regulations, orders, or guidance; determines the “action”; and approves the execution of“authority” when no basis exists in act of congress. However, in the stage equivalent to“action,” we can assume that a positive principle exists based on the War Powers
Resolution despite some fluctuations.

(3) Germany31
The German Constitution (in the formal sense)—the Basic Law for the Federal Republicof Germany first enacted in 1949 and amended several times since—has a clause thatstates that “in addition to defense (Verteidigung), armed force can be deployed (Einsatz)
only to the extent explicitly permitted in this Basic Law (Article 87a Clause 2).” It
contains the principle that stipulates that to “mobilize” armed forces—referring to the useof armed forces where high-authority activities are generally implemented as a means of
exercising executive power—an explicit constitutional basis is necessary (constitutional
reservation [Verfassungsvorbehalt]; hereafter the principle of constitutional reservation).
This principle narrowly limits the government’s discretion in terms of constitutional
demand for statutory provision (formal) regarding the “deployment” of armed forces. In
this manner, this principle is absent in the USA, the U.K., or France. Because of theexistence of such a unique principle, Germany applies a positive principle at the30

CJCSI 3121.01B 13 June 2005, Enclosure A, 1.a.

31

Regarding Germany, based on Yamanaka (ed.), Domestic Laws and Regulations Governing Military

Activities: Comparative Studies of Seven Countries, pp. 90ff. (part written by Yamanaka Rintaro),
survey and descriptions are supplemented as needed, and analysis and examination are added from theperspective of the negative list–positive list theory.

24

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

constitutional level in terms of the “deployment” of armed forces. Based on this principle,
situations where “deployment” is allowed are made into a positive list.32 While academic
conflict within the scope of the principle of constitutional reservation related to the“deployment” of armed forces—the meaning of “defense” and “deployment,” whether
the stipulations of the same clause are limited to domestic deployment—remains
extremely complex, the Federal Constitutional Court decision (second court) of July 12,
1994, did not clearly state the scope of the abovementioned constitutional reservation
principle; thus, the official interpretation remains unclear. That being said, the same court
refers to Article 24, Clause 2, of the Basic Law, which plans to join the “Systemgegenseitiger kollektiver Sicherheit” (“mutual collective security system”) to maintainpeace as “the constitutional basis to deploy armed forces within the system’s
framework.” 33 As such, because the scope of the constitutional reservation principle
remains unclear, determining the constitutional basis of “deployment” is significant insolving issues. Presently, in relation to the external deployment of armed forces,
deployment for the purpose of “defense” (Article 87a, Clause 2) and deployment within
the framework of the “mutual collective security system” are based on the Constitution;
thus, on this point, there is no issue with constitutional basis. However, other overseas
deployment leads to possibilities of constitutional conflict not only in academia but alsoin actual political operations in terms of constitutional basis.
A constitutionally explicit basis for the relation with the constitutional reservation
principle associated with the “deployment” of armed forces is necessary, but for the
executive department to decide and direct the “deployment” of armed forces, a basis ofact of parliament is not necessary in addition to the basis of the Constitution. Therefore,
in relation to act of parliament, no positive principle exists. Indeed, in the above-described
determination, the Federal Constitutional Court constitutionally requests the principle ofthe necessity of advanced agreement of Parliament for each “armed operation of armed
forces (Einsatz bewaffneter Streitkräfte)” (“the parliamentary reservation”[Parlamentsvorbehalt] related to the “armed operation of armed forces,” 34 hereafterreferred to as the parliamentary reservation principle). With that, a procedural law thatspecifies its contents was enacted (Act on parliamentary involvement in the decision for
32

However, the scope of the positive principle at the level of “action” in Japanese law includes“deployment” (shutsudō) and a narrower definition of “action” (kōdō) and “dispatch” (haken). This
makes the scope wider than Germany’s principle of constitutional reservation. In addition, caution
should be taken that “deployment” (shutsudō) in Japanese law and “deployment” (Einsatz) in German
law are likely different, including the differing significance of setting such a concept.
33 Vgl. BVerfGE 90, 286(345, 355)
34 Vgl. BVerfGE 90, 286(381ff.)

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

25

armed operation of armed forces overseas [Gesetz über die parlamentarische Beteiligung
bei der Entscheidung über den Einsatz bewaffneter Streitkräfte im Ausland]). 35
According to this Act, for each “armed operation of armed forces,” advanced agreement
by Parliament is required in principle; however, general or individual legal basis is notnecessary in this case. The German Constitution has “rule of essential matters(Wesentlichkeitstheorie)” formulated by the Federal Constitutional Court. For example,
as expressed by the Federal Constitutional Court decision of 1978, “separately from thecharacteristic of infringement, a legislator is obliged to make all essential decisions within
the important areas of norms, specifically, in the area of the use of basic rights, as far as
it fits the rules of the state.”36 According to books on European comparative military laws,
this principle is valid for armed forces as well.37 In relation to the external “deployment”
of armed forces, a theoretical possibility of basing the above-described parliamentary
reservation principle on the “rule of essential matters” has been academically discussed.38
In any case, there is no argument that basis of an act of parliament is generally orindividually necessary for the agreement.
Besides these constitutional constraints—the principle of constitutional reservation—
there is a constitutional constraint specifically on the parliamentary reservation principle
for the “armed operation of armed forces.” Under this, the federal government has theright to decide on the “deployment” of armed forces in principle, and to determine the“deployment” of armed forces, a cabinet decision is necessary (see §15, Clause 1).39 The
right to enact a basic policy is granted to the Chancellor (Basic Law Article 65, Sentence1), and the Minister of Defense can formulate defense policy for jurisdiction matterswithin the framework. With these abilities, military missions and deployment formats are
determined in a way that is not limited to individual cases. In fact, the “White paper on
Security Policy and the Future of Federal Forces (Weissbuch zur Sicherheitspolitik undzur Zukunft der Bundeswehr)” following a cabinet decision enacted in 2016 and the“Defense Policy (Verteidigungspolitische Richtlinien)” enacted by the Minister of
35

BGBl. I 2005 S. 775.

36

BVerfGE 49, 89(126f.)

37

Georg Nolte and Heike Krieger, “Comparison of European Military Law Systems,” in Georg

Nolte(ed.), European Military Law Systems, Berlin: De Gruyter Recht, 2003, p.69.
38

Vgl. z.B., Tobias M. Wagner, Parlamentsvorbehalt und Parlamentsbeteiligungsgesetz, Berlin:

Duncker & Humblot, 2010, S.31ff.
39

Christoph Papenberg, Das Französische und das Deutsche Wehrrecht, Baden-Baden: Nomos, 2007,

S.72. According to the Executive Provisions of the Federal Government §15, Clause 1, crossjurisdiction decisions require a cabinet decision.

26

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

Defense in 2011 place military missions under security and defense basic policies. Thus,
the goals and format of armed forces deployment are specified.40 The Minister of Defense(nonemergency) or the Chancellor (emergency) is constitutionally granted the highest
command of the armed forces— “supreme command (Befehls- und Kommandogewalt)”(Basic Law Article 65a); thus, the Minister of Defense or the Chancellor can order armed
forces deployment for each situation within the framework of the federal government’s
decision and the above-described Basic Law. In this case, any use of armed forces
equivalent to “deployment” has a condition that requires constitutional basis (theconstitutional reservation principle), but general or individual legal basis of act ofparliament is not necessary.
Use of force during deployment of the armed forces is outside the abovementioned
constitutional reservation principle. However, the (formal) Constitution grants the highest
command of the armed forces— “supreme command”—to the Minister of Defense(nonemergency) or the Chancellor (emergency) (Basic Law Article 65a). Thus, theMinister of Defense orders the armed forces to take actions within the framework ofdecisions by the Chancellor and the Cabinet. Alternatively, approval is given to the rulesof engagement (Einsatzregeln), which in turn permits or restricts the use of force. In thiscase, the use of force does not require general or individual basis in the Constitution andan act of parliament.
Meanwhile, acts of parliament may prohibit or limit the execution of constitutional
authority by the abovementioned executive branch. In such a case, the executive branch
can order and instruct the armed forces to perform anything that is not legally prohibitedwithin the extent of constitutional authority under the constitutional reservation principle.
The negative principle in relation to act of parliament remains in such a limited range.
Furthermore, it is said in Germany that there is an area of authority belonging to the
executive branch that cannot be infringed by Parliament41. In the context of the external
dutys of the armed forces, which is a point of interest in the present study, there is apossibility that matters and forms that cannot be banned by act of parliament could bequestioned.
Let us now use the wordings of Japanese law for the contents examined in this section
and introduce the perspective of the differences in the stages of “duty,” “action,” and“authority.” As Germany applies the constitutional reservation principle related to the“deployment” of armed forces, its scope has been subject to deliberation. However, in40

Weissbuch zur Sicherheitspolitik und zur Zukunft der Bundeswehr, 2016, S.90-93;

Verteidigungspolitische Richtlinien, 2011, S.19-21.
41

BVerfGE 67, 100(139); Nolte and Krieger, “Comparison of European Military Law Systems,” p.69.

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

27

relation to the external “duty” in addition to the internal “duty” of the armed forces, at thestage of “action,” while there may be a positive principle in relation to the Constitution,
there is no positive principle in relation to acts of parliament. Meanwhile, at the stage of“authority,” the executive branch might permit or limit the use of force by the armed
forces within the extent of authority granted by the Constitution. In such a case, a general
or individual statutory provision relating the use of force is not necessary in theConstitution and an act of parliament; thus, there is no positive principle in relation toConstitution and act of parliament. As such, whether Germany can be explained as acountry of positive principle depends on whether one focuses on Constitution or act ofparliament or focuses on the stage of “action” or “authority.” However, as the positive
principle is enhanced for the point that constitutional basis instead of basis of act ofparliament is necessary at the stage of “action,” there is room to think that the positive
principle exists in Germany at that stage.

(4) France42
Unlike the German Constitution, the Constitution of the Fifth Republic enacted in 1958
does not directly stipulate missions and roles of the armed forces. The preamble mentions
the 1789 Declaration of the Rights of Man and of the Citizen and the 1946 Constitutionof the Fourth Republic. In addition to various unwritten principles acknowledged by Actsof Parliament since 1905, their constitutional values are acknowledged. As such, theDeclaration of the Rights of Man and of the Citizen states, “[t]o secure the rights of people
and citizens, a public force (une force publique) is necessary; thus, this public force isestablished for the benefits of all and not for specific benefits for those entrusted with thatforce” (Article 12). It is also significant that the Constitution of the Fourth Republic statesthat “[t]he French Republic cannot start a war to conquer, nor can it use the public force
against the freedom of citizens” (Preamble, Section 15). This is because these twostatements are considered to have constitutional value under the current Constitution of
the Fifth Republic. These statements are exemplars of setting up the discipline of thenegative method for the constitution within the domestic law that sets out the role of theFrench armed forces and limits its use. Notably, however, what these statements prohibit
is somewhat abstract.

42

As for France, based on Yamanaka (ed.), Domestic Laws and Regulations Governing Military

Activities: Comparative Studies of Seven Countries, pp. 70ff. (part written by Okumura Kosuke),
survey and description are supplemented as needed, and analysis and examination are added from theperspective of the negative list–positive list theory.

28

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

Under such constitutional restrictions, the executive branch determines how to deploy thearmed forces and take a flexible strategic response against threats.43 This is because theexecutive branch is granted with a wide range of authority related to national security andmilitary matters, specifically the right to create regulations—the highest power to makepolicies, the right to deploy, and the supreme military command, by the Constitution of
the Fifth Republic.
First, let us investigate the right to formulate regulations. The Constitution of the Fifth
Republic lists matters of act of parliament (matters belonging to the area of act ofparliament [domaine de la loi]). In terms of the relation with national security and military
matters, judiciary matters are basic principles associated with “obligation (sujétions) on
citizens’ bodies and property to contribute to the national security,” “fundamental
guarantees granted to national military officers,” and “general organization of the national
security” (Article 34). Other matters can be determined as an order (without a legal
delegation) (Article 37). An actual example of the setting of regulations shows that
“defense,” which is under “the national security (sécurité nationale)”—a morecomprehensive concept—is defined by the act as “[t]he defense policy aims to secure theintegrity (integrité) of the territory and protect residents” (Defense Code L.1111-Article
1, Clause 3). The mission of the military is defined as follows: “The mission of themilitary is to prepare and guarantee to defend the highest benefits for the homeland(patrie) and the nation with the armed forces” (L.3211-Article 2). As such, the missionof the military is thus stipulated in very general terms by the act; however, the present
Law Part of Defense Code has no legal stipulation other than the provisions for nuclear
deterrence in “the implementation of military defense” (Part 1, Volume 4). This is thesame for external operations (opérations extérieures [OPEX]): interventions of French
military forces outside French territories (interventions des forces militaires francaises
en dehors du territoire national).
Let us now examine the relation with the highest power to make policies, the right todeploy, and the supreme military command. The Constitution of the Fifth Republic grants
the authority to the executive branch as follows: The President is “responsible for the
independence of the nation, integrity of the territories, and compliance with treaties (legarant de l’indépendance nationale, de l’intégrité du territoire et du respect des traités)”(Article 5, Sentence 2) and is “the head of the military (chef des armées)” (Article 15,
Sentence 1). Besides “cabinet meetings (Conseil des ministres)” (Article 9), especially in
relation to national security policies and military policies, the President presides over “thehigher national defense councils and committees (conseils et comités supérieurs de la43

Papenberg, Das Französische und das Deutsche Wehrrecht, S.63.

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

29

Défense nationale)” (Article 15, Sentence 2). In contrast, the Prime Minister countersigns
the above authority exercised by the President (Article 19) and commands the governmentthat “controls the armed forces (force armée)” (Article 20, Sentence 2) while also being“responsible for the national security” (Article 21, Sentences 1 and 2). As such, theauthority and relationship of the President and the Prime Minister regarding defense
matters are unclear within the provisions, and their actual power relations dynamicallychange based on the political situation, especially regarding whether it is cohabitation.
For implementations that began with Charles de Gaulle, the position of the President
substantially dominated diplomatic, and defense matters because of the influence of thefirst president and the introduction of a direct election system. This led to theestablishment of the President’s “reserved domain (domaine réservé)”—except for the
cohabitation period when the dominance of the President has weakened.44
As discussed, though the relation between the internal authorities of the executive branch
is dynamic, in any case, it is clear that the constitution grants the executive branch withthe right to create regulations, determine basic policies, deploy armed forces, and thesupreme military command. Based on such rights, the executive branch can decide, order,
and approve the deployment of armed forces and the use of force. In such a case, statutory
provisions on the deployment and use of force are not necessarily required for theconstitution or an act of parliament. The specifics of the exercise of these powers today
are as follows. We already discussed the setting of regulations, but for the basic policies,“the 2017 Review of Defense and National Security Strategies (Revue stratégique dedéfense et de sécurité nationale 2017)” defines that constantly evaluating security threats
and determining the appropriate response for each case are the highest responsibilities of
the President; thus, while indicating that the vital benefits of security have not been simply
defined, the protection of the land and residents is placed at the center of such benefits,
and the functions of the military are placed under such strategic benefits and further
specified.45 According to the framework of such basic policies, under Parliament’s rightof involvement (Constitution Article 35), the President decides the external deploymentof the French military based on their position as “bearing the responsibility for protecting
the independence of the nation, integrity of the territories, and compliance with treaties”(Article 5) and as “the head of the military” (Article 15, Sentence 1). As for the use of
44

Papenberg, Das Französische und das Deutsche Wehrrecht, S.38f., 55f.; Jean-Christophe Videlin,

Droit de la Défense Nationale, 2e ed., Bruxelles: Bruylant, 2013, pp.95ff.; Jörg Gerkrath, “Military
Law in France,” in Georg Nolte(ed.), European Military Law Systems, Berlin: De Gruyter Recht, 2003,
pp.293-294.
45

Revue Stratégique de Défense et de Sécurité Nationale 2017, pp.54-56, 71ff.

30

Chapter 2 — Domestic laws of the United Kingdom, the United States of America,
Germany, and France

force, under the common doctrine, rules of engagement (règles d’engagement) are issued
as “the order for the troops deployed in determined external operations from designatedmilitary institutions with the support at the political level,” which “permits, limits, or
prohibits the use of force in operations.” 46 When exercising the above powers, a
constitutional provision or a provision of act of parliament for these actions are notgenerally or individually required; thus, we can summarize that no positive principle
exists in relation to Constitution or act of parliament.47
Additionally, in France, the constitutional authority of the above-described executive
branch related to military actions is exercised within prohibitions and restrictions by actsof parliament. In that sense, a negative principle exists in relation to act of parliament;
however, one must note that it is assumed that matters of act of parliament are restricted
as described above. In fact, the legal portion of the Defense Code does not stipulate directprohibitions or restrictions to external military actions.
The above discussion shows that in France, if it is not prohibited or restricted by theConstitution and acts of parliament, the executive branch can order regulations without
legal delegation within the area of authority guaranteed by the Constitution, determine
the basic policy and strategy, determine the deployment of armed forces within theframework, and permit or restrict the use of force. In such a case, regulations associatedwith “action” and “authority” in Japanese law and general or individual statutory
provisions related to military actions are not necessary in terms of the Constitution or act
of parliament. In that sense, there exists no positive principle but rather a negative
principle. This is because in the Constitution, matter of act of parliament relating tonational security and military is limited, and the Constitution grants the executive branchwith the right to formulate basic policies, the right to deploy armed forces, and theexercise of supreme military command.

46

Doctrine interarmées (DIA)-5.2, L’ usage de la force en opération militaire se déroulant à l’extérieur

du territoire National, 2006, p.7.
47

The 2008 amendment to the constitution requires a report to and an approval by Parliament for each

deployment of armed forces (however, this is limited to the approval to extend deployment beyond
four months) (Article 35, Clause 3). This approval does not require an authorization by an act ofparliament; thus, no positive principle exists in the relation to act of parliament.

Chapter 3 — Verification of the negative/positive theory

31

CHAPTER 3

Verification of the negative/positive theory(1) Theoretical understandings that position military as negative approach andpolice (and by extension the Self-Defense Forces) as positive approach
Theoretical understandings that position the police and the Self-Defense Forces (SDF) as
positive approaches will not be specifically discussed here. Instead, this paper adopts theunderstanding that the “method of bestowing authority” to military is a negative list
method based on the negative principle; following the analysis of this paper, the issue tobe examined is whether “bestowing authority” to the military for overseas duties via anegative list method based on the negative principle is consistent with the current state of
positive law in various countries.
We have already established that Shikama’s negative/positive theory positions the“method of bestowing authority” to military as a negative principle and a negative list
method in relation to international law. In this regard, there may be aspects where
Shikama’s formulation is inappropriate, and we have no choice but to leave theexamination of these aspects to future specialist research from the perspective ofinternational law. Nevertheless, Shikama’s negative/positive theory states that “someregulation is possible as a supplement to this under domestic law.” Additionally, focusing
on the fact that subsequent negative/positive theory have also highlighted domestic law,
especially the relationship with the law, as noted above, this paper will instead concentrateon verifying whether the negative principle and negative list method as the “method of
bestowing authority” to the military exist in relation to domestic law. In this regard, theprevious chapter confirmed that the negative principle exists in relation to act ofparliament/congress in the United Kingdom, the United States, Germany, and France. In
this sense, negative/positive theories after Shikama have argued that the “method of
bestowing authority” to the military was based on the negative principle and negative list
method, even in relation to act of parliament, a position which is by no means
unreasonable. It is in fact meaningful as a schematic representation of the “method of
bestowing authority” to the military in relation to domestic law. However, as confirmedin the case of the United States and Germany, it is possible to question whether a32

Chapter 3 — Verification of the negative/positive theory

prohibition by act of parliament/congress (in the negative principle: “it is acceptable toengage in activities other than those prohibited by act of parliament/congress”) can holdtrue to begin with, depending on the details or form of the prohibition.
In addition, even though the “method of bestowing authority” to the military is based on
the negative principle in relation to act of parliament/congress, even within the scope ofthe four countries examined here, this argument applies well to the stage corresponding
to “authority” (kengen) in Japanese law, albeit with some examples of deviation from thisfor the stage corresponding to “action” (kōdō). One such example is the U.S. War Powers
Resolution, which requires a declaration of war (and, optionally, requires grounds in an
act of congress, the scope of which is disputed) for military involvement in hostilities,
except in the event of an armed attack. Another example is Germany’s principle ofconstitutional reservation regarding the “deployment” of the military. It can be seen as alegal phenomenon in which there are positive principles and positive list methods inrelation to the Constitution (in the formal sense) with regard to the parts that roughly
correspond to the “action” (kōdō) stage as it is expressed in Japanese law. In addition,these principles are strengthened in relation to Constitution to a greater extent than inrelation to act of parliament. (It should be noted, however, as confirmed above, that
opinions differ in Germany as to whether this principle of constitutional reservation
includes external activities of the military).
This phenomenon is observed in the context of external duties other than traditional
warfare and military defense and is also observed with regard to the parts roughly
corresponding to the “action” (kōdō) stage in Japanese law. Given this, if the range of thenegative/positive theory extends not only to the military’s “authority” but also to the stageof “action,” an appropriate generalization is that, in some countries, the positive principle
and positive list method may be partially observed at the stage corresponding to “action.”(2) Theoretical understandings that position Anglo-American-style military as
negative approach and continental-style military as positive approach
Incidentally, with regard to the theoretical understanding that Anglo-American-stylearmed forces follow the negative principle and the negative list method, while
continental-style military follow the positive principle and the positive list method, wemust ask whether such an understanding is consistent with these two legal systems as they

Chapter 3 — Verification of the negative/positive theory

33

currently exist in the different countries. The main purpose of this paper is not to verify
this understanding which positions Anglo-American as being the negative approach andcontinental as the positive approach. Furthermore, given that the survey results in theprevious chapter were limited to four countries, it is not possible to draw more thantentative conclusions; we can nonetheless verify at least the following points.
First, it is true that in the United Kingdom and the United States, negative principles canindeed be observed in relation to act of parliament/congress, which is consistent with theunderstanding that the militaries of these nations adopt a negative approach. Kurisu notesthat “the Anglo-American conception is that the government independently holds
administrative and executive power, thus can handle matters at its own discretion except
for those which are prohibited by parliament/congress as the representative of the people.”
The fact that “the government independently holds administrative and executive power”
is derived from the royal prerogative (U.K.) and presidential authority (USA) in the
Anglo-American constitutional order, as demonstrated by this paper. However, it should
be noted that in the United States, the restrictions placed on presidential authority by the
War Powers Resolution create the opportunity for applications of the positive principle
in relation to act of congress with regard to the stage corresponding to “action,” albeit if
only partially.
Second, with regard to the understanding that positions continental-style militaries as
adopting a positive approach, the existence of the constitutional reserve principle inGermany means that it is entirely possible to conclude that there are, in fact, European
countries with a basis in the positive principle and positive list method that have a stronger
foundation than that of act of parliament. Additionally, although not mentioned in thispaper, there are some cases that tend to be amenable to the understanding of continentalstyle militaries as adopting a positive approach, such as in Austria and Switzerland, whereacts of parliament are accorded a significant position and is somewhat like the SelfDefense Forces Act of Japan. 1 We should therefore hesitate in asserting that such anunderstanding is unjustified. However, there are also facts that are not consistent withconceptions that position continental-style militaries as adopting a positive approach.

1

See Yamanaka (ed.), Domestic Laws and Regulations Governing Military Activities: Comparative

Studies of Seven Countries, pp. 102ff. (sections written by Yamanaka Rintaro).

34

Chapter 3 — Verification of the negative/positive theory

Namely, in Germany the positive principle exists in relation to the Constitution (in theformal sense), rather than the negative principle in relation to act of parliament.
Furthermore, as already discussed, the French military is not based on the positive
principle in relation to act of parliament. These facts suggest that “the government
independently holds administrative and executive power” with respect to the external
actions of the military is not a phenomenon that is unique to the United Kingdom andUnited States.
As aforementioned, in the countries discussed in this paper, there are facts that bothsupport and contradict the understanding that positions continental-style militaries as
adopting a positive approach, and therefore the possibility remains that this understandingof continental-style militaries is not valid. The scope of comparative military law researchneeds to be further widened to verify this more accurately, which will simultaneously
make it possible to verify the validity and range of the more generalized understandingof militaries more accurately in general as adopting a negative approach. In this paper,
we compared the four countries for the time being, and we have no choice but to present
the provisional verification results at that stage and leave it to the results of further
progress in comparative military law research in the future. This paper concludes bycomparing these four countries, presenting only provisional verification results at thisstage and leaving further examination to the results of further future progress incomparative military law research.

In lieu of a conclusion

35

In lieu of a conclusion(1) A summary of this verification of the negative/positive theory
This paper attempted to verify the negative/positive theory, especially theoreticalunderstandings that contend that negative and positive approaches are adopted in relation
to the military and police, respectively, based on a survey of the domestic laws of four
countries, the United Kingdom, the United States, Germany, and France. Particularconsideration was given to the understanding of the military as negative, with an attempt
being made to draw conclusions on the limitations of this conception.
The conclusion was reached that, as in Japan, none of the four countries followed thepositive principle in all areas of “duties” (ninmu) and in the stages of “action” and“authority.” The negative/positive theory relate to the external duties of the military, andexamination of these duties reveals that these four countries conform to the negative
principle in the stages roughly corresponding to “action” and “authority” in Japanese law.
In this sense, with regard to the understanding that, in terms of the negative/positive
theory, while the “method of bestowing authority” to the Japanese SDF conforms to thepositive principle in relation to external duties, the “method of bestowing authority” tothe militaries of other countries conforms to the negative principle, within the scope of
this paper's examination, such an understanding is generally consistent with the law as it
currently exists, taking domestic law into account.
However, this conclusion comes with the following caveat. In relation to domestic law,even within the scope of the countries examined in this paper, with regard to the stage
referred to as “action” (kōdō) in Japanese law, the U.S. War Powers Resolution and theprinciple of constitutional reservation in Germany provide opportunities to introduce thepositive principle into the “method of bestowing authority” to the military. Insofar as thisis true, it is possible to conclude that the law as it currently exists may not conform to an“ideal type” in this regard.
(2) Treating the negative/positive theory in terms of an “ideal type”
How do we then position phenomena that deviate from the scheme of positioning thenegative principle and negative list method as the “method of bestowing authority” to themilitary? To make a judgment in this regard, we must consider the fact that Shikama

36

In lieu of a conclusion

presented this scheme as an “ideal type,” which is described as “an abstract ‘model’constructed by extracting from numerous examples.”1 It is both possible and necessary tomethodologically question the methods by which we might “construct by extracting fromnumerous examples.”According to Shikama, the “military” (guntai) is “a concept that is widely accepted in theinternational community.” Shikama further argues that since a “military force … is afunctional group whose main mission is to defend its own country from external enemies,
it is essentially assumed to be involved with foreign countries”. Therefore, “it cannot exist
as an organization that is completely isolated from the international community,” which
thus “must be subject to standardization by the standards or norms of the international
community.” Shikama further notes that “during the period when modern nation states
were being founded on a large scale in the international community, the natural tendency
was to see a standardizing effect from the systems of Western Europe.” 2 This
standardizing effect was to occur based on the minimum standards of international law
and inherited domestic legislation. In this case, “the object of observation at the time ofthis extraction of ideal types was the contemporary liberal democratic nation state.” 3
Through this lens, Shikama’s “ideal type” can be positioned as a model to empiricallyextract standardized and normative aspects through observing “numerous examples” in“modern liberal democracies.” While no mention is made of the concept of “ideal types”
in the negative/positive theory that emerged thereafter, an empirical model in this sense
is presented. Furthermore, it can be seen that the “method of bestowing authority” to themilitary as described in terms of the negative/positive theory is accepted as indicating the“norms” and “standards” of the military.
Nonetheless, as we have already confirmed, Shikama attempts to fully explain the legal
basis of the “ideal type” in relation to external duties of the military via the perspectiveof principled freedom of international law based on the principle of absolute sovereignty.
In this case, consideration is barely given to regulations in domestic law whenconstructing the “ideal type.” Within the context of such debate, while it is possible toconceive that a model constructed by taking the principle of absolute sovereignty to its
1

Shikama, “Essential Differences between the Military and the Police,” p. 33.

2

Shikama, An Anatomy of the State Power, pp. 123-124.

3

Ibid., p. 120.

In lieu of a conclusion

37

farthest point legally and rationally may be positioned and presented as an “ideal type,”such positioning would be more compatible with the concept of the “ideal type”
advocated by Max Weber. This is because Weber’s “ideal type” is formulated as follows:“These ideal types are attained by combining a multitude of individual and scatteredphenomena into a single and united image—by raising one, two, or three points of viewto the level of a single aspect—and saying ‘here there are many that fit with thisperspective, here there are few, and in some places there are none at all’ and so on. Thisideological image, in its conceptually pure form, can never be empirically foundanywhere in reality. It is a utopia.” (Emphasis present in original translation).4 In suchcases, as Weber warns, we must be careful not to mistake the “ideal type” for reality—
which, in relation to this paper, is the positive law as it currently exists.
In addition, the previous chapter confirmed that the U.S. War Powers Resolution and theprinciple of constitutional reservation in Germany leave scope for the application of thepositive principle with regard to external duties of the military other than military defensein domestic law. While it is not necessarily clear whether Shikama’s argument regarding“ideal type” includes the “action” (kōdō) stage of Japanese law, given that the subsequent
negative/positive theory focused on the “action” stage, we must also take the relationshipbetween the aforementioned phenomenon and the “ideal type” as an issue for theoreticalinvestigation. Specifically, the major issue is whether this phenomenon is positioned as adeviation from the “ideal type” or seen as an opportunity to pursue a restructuring of the“ideal type” itself. Further verification is needed with an expanded scope of countries forobservation. However, in any case, the verification presented in this paper clearly
indicates that (1) if the “ideal type” takes into account the “action” stage, as noted above,
phenomena that do not conform to the “ideal type” will be observed, and (2) that suchphenomena originate in the rules and logic of domestic law, something which Shikama
also hardly considers.
The above is related to the fact that Shikama’s scheme has the theoretical characteristicof an “ideal type.” Shikama’s approach in presenting that “ideal type” as the “essential
difference” between the police and the military must be also considered. While it is true

4

Max Weber (author), Tominaga Yuji, Tatsuno Yasuo (translation), Orihara Hiroshi (supplementarytranslation), Objectivity in Social Science and Social Policy, Iwanami Shoten, 1998, p.113.

38

In lieu of a conclusion

that, given that Shikama’s “ideal type” was intended to clarify such “essential differences,”the existence of some phenomena as detailed above that are inconsistent with that “idealtype” and is not necessarily reflected in the “ideal type” of the “method of bestowing
authority” to the military, this is not of any decisive significance in relation to the issue
at hand. However, based solely on examination of the four countries herein, it is clear that
there is diversity in the “methods of bestowing authority” to the military under tiered legal
structures, with constitutional regulations occupying the highest position in domestic law.
As such, it is not impossible to gain a relativized understanding of perspectives on the“method of bestowing authority” to the military in modern liberal democracies, based on
consideration of such domestic legal structures. In that sense, we may rather say that theperspective in which Anglo-American and continental militaries are associated with anegative and positive approach, respectively—a perspective that focuses on the
differences between the militaries of different regions, cultural spheres, or legal
systems—expands the horizon of perceptions that focus on diversity in the image of themilitary. Alternatively, a distinction may be made from a different perspective from thatof “continental vs. Anglo-American” that is also consistent with the law as it currently
exists. (Although this is merely a hypothesis, there are possibilities for such alternative
distinctions, such as whether the military has previously been liquidated, whether or nota country underwent postwar disarmament, or a distinction focused on the degree of
directness of democratic systems).
In addition, the “ideal type” relating to the “method of bestowing authority” to the military
has been linked to practical arguments for critically overcoming issues relating to the“method of bestowing authority” to the Japanese SDF. This linking phenomenon has
already been confirmed as a theoretical feature of the negative/positive theory. However,
the treatment of this feature is also problematic. A similar problem arises when the“method of bestowing authority” to the military in the negative/positive theory is lent an
air of practicality by being accepted as “common sense” or “standard.” Shikama cautions
that the “ideal type” relating to the “method of bestowing authority” to the SDF has nopractical significance. It is “not an ‘idealistic’ model based on some sense of values, andtherefore, caution is advised.”5 This is in line with what Weber highlights in relation tomethodology. Nonetheless, Shikama’s argument also has the aspect of formulating its

5

Shikama, An Anatomy of the State Power, p. 119.

In lieu of a conclusion

39

practical claims by means of “ideal types,” and the evaluation of these claims is a separate
issue from the methodological positioning. In this regard, since the “ideal type” itself does
not have the normative character of an “idealistic type,” it cannot serve as a basis for thepractical claims of the theorist, necessitating a separate normative basis. Thus, further
examination is required, including evaluation of Shikama’s argument that Japan’s
positive principle and positive list method is inappropriate in relation to the feasibility of
executing military duties (as discussed later in (3)3.).
(3) Developing and refining the negative/positive theory
Chapter 1 attempted to analyze the negative/positive theory to clarify some perspectives
for analyzing the debate on this topic. Building on the results of this analysis, Chapter 2sought to analytically verify the negative/positive theory. And the results of this analysis
developmentally provide perspectives for refining and developing these theories, while
also yielding suggestions as to how to break down and relativize the practical claims thatthese theories advocate. Building up a multifaceted analysis by introducing these multiple
viewpoints brings about a complication of the negative/positive theory; however, thiscomplication is not synonymous with confusing the debate based on a division of
viewpoints. In lieu of a conclusion at the end of this paper, we will discuss the following
points based on the results of the verification detailed above, in the hope of facilitating
the development of further research in the future, namely by discussing how amultifaceted perspective can provide suggestions for refining and developing thenegative/positive theory, alongside suggestions for breaking down into component
elements and relativizing the practical claims advocated by these theories.
1. Viewpoint 1: Differentiation of different duties and stages
The negative/positive theory do not differentiate (or at least do not sufficiently
differentiate) between various duties and stages; yet making such a differentiation isuseful to develop and refine these theories. As it is clear from summarizing thisverification of the negative/positive theory, there are differences in military duties,
especially external duties. Moreover, the “method of bestowing authority” to the militaryalso contains stages corresponding to “action” (kōdō) and “authority” (kengen) inJapanese law, suggesting that it may be necessary to break down the negative/positive
theory into smaller component elements. From this perspective, while it may be that the40

In lieu of a conclusion“method of bestowing authority” to the military for external duties is based on thenegative principle and negative list method, it should be recognized that there aredifferences in the form and legal basis of regulation, both between military defense andexternal duties that differ therefrom, and between the “action” and “authority” stage.
a. Differentiation of different duties
The negative/positive theory was first posited in relation to military defense duties of thearmed forces. The scheme whereby the “method of bestowing authority” to the militaryis based on the negative principle and negative list method is consistent with positive law
as it currently exists in the countries that this paper examines, and this is the case both inrelation to “action” and “authority.” However, in relation to external duties other thanmilitary defense duties, it is not self-evident to the same extent that the “method of
bestowing authority” to the military is based on the negative principle and negative list
method. This is because many such external duties have been newly assigned to themilitary in the contemporary era. It is also because of the diversity of such duties, whichbecomes clear if we recall their wide range of purposes and forms, including military
sanctions, peacekeeping operations, and extraterritorial law enforcement. Alongside this,
there is the possibility of “methods of bestowing authority” both in international law anddomestic law that differ from that of military defense. Within the scope of this paper, thepositive principle was found partially in the U.S. War Powers Resolution and Germany’s
principle of constitutional reservation (albeit with some debate about the scope of thelatter) regarding regulation on “action” in external duties other than military defense, allof which is necessary to note with regard to the topic of duties.
b. Differentiation of different stages
When viewed in terms of the argument regarding the stage corresponding to “authority”(kengen) in Japanese law, the scheme laid out in the negative/positive theory—whereinthe “method of bestowing authority” to the military is based on the negative principle andnegative list method—is consistent within the scope of the facts examined in this paper(i.e., the law as it currently exists). However, while examples corresponding to theabovementioned scheme are generally observed in relation to the law, there are few
examples of legislation that has established negative list regulations in act ofparliament/congress itself. The more widespread practice is for prohibitions or

In lieu of a conclusion

41

restrictions to be placed on the exercise of military authority through directives enacted
by executive branches, and especially through rules of engagement enacted by militaryagencies, with the approval of the executive in some cases.
In contrast, when viewed in terms of the argument regarding the stage corresponding to“action” (kōdō) in Japanese law, we must express some reservations regarding the viewexpressed in the negative/positive theory (i.e., that the “method of granting authority” tothe military is based on the negative principle and negative list method). This is because
Germany’s principle of constitutional reservation and the reservation of act of congressin the U.S. War Powers Resolution—both through declarations of war and selective
legislation—create opportunities for the positive principle’ application regarding thestage corresponding to “action” in Japanese law. The conclusions based on verifying thenegative/positive theory will differ depending on whether the scope of the theory subject
to such verification extends to the “action” as well as the “authority” stage in Japaneselaw. We have already confirmed that it is unclear whether Shikama includes the stage
corresponding to “action” and “authority” within the scope of the theory of negative andpositive approaches. However, if we include regulation at the “action” stage within our
examination, phenomena that deviate to a certain extent can be observed from theconception that the “method of bestowing authority” to the military is based on thenegative principle. Further clarifying the form and nature of the legal significance of suchdeviations will contribute to the development and refinement of the negative/positive
theory.
2. Viewpoint 2: Differentiation of regulatory principles and regulatory methods
Although the negative/positive theory have not necessarily drawn a sufficient distinction
between the issues of regulatory methods and principles, adopting a viewpoint thatconsiders the interdependent relationship between both issues and having differentiatedthem (as shown in (2) 2. of Chapter 1) is useful for the development and refinement of
this theory.
The practical claim that Shikama links with the “ideal type” of the “method of bestowing
authority” to the military states that if we are to remove the obstacles caused by an
inseparably linked positive principle and positive list method (positive principle +positive list method), the result would be a fundamental shift to an inseparably linked

42

In lieu of a conclusion

negative principle and negative list method (negative principle + negative list method).
However, from the perspective of differentiating between the issue of regulatory
principles and methods, the linkage between positive principle and positive List method
is not inevitable, and even under positive principle, a more general method of
authorization is possible (positive principle + general authorization method). The
legislative techniques for achieving this include a range of methods; naturally the degrees
of generality and comprehensive inclusion of this authorization widely vary. In any case,in comparison with the approach to regulation whereby an individual and specificauthorizations are enumerated (an approach which may constitute the typical image of
positive list method regulation), the extent of restraint by law would be less strict, creating
more room for policy judgments. It would be correspondingly necessary to shift
institutional structures away from civilian control in the form of restraints enforced bylimited authorization in act of parliament/congress, toward civilian control in the form ofpolitical control (which in this case would include control via the rules of engagement)
while still based on general powers granted by act of parliament/congress. Examples ofregulation oriented toward this kind of general authorization method can be cited such asin relation to the “duty” of defense, the comprehensive provisions of Article 88, Paragraph
1 of the Self-Defense Forces Act, which have traditionally been the basis for granting“authority” for the exercise of military force during a defense operation. Furthermore, in
relation to the “duty” of international peacekeeping, recent peace and security legislation
are seeking to move away from enacting individual special measures acts by instead
enacting “a general act” such as the International Peace Support Act, thereby making theregulation of “action” more general.
The practical claims advocated by the negative/positive theory are also somewhat
relativized from this viewpoint. Having argued that the “method of bestowing authority”
to the Japanese SDF is based on the positive principle and the positive list method,
Shikama acknowledges the following problem based thereon: “This means that, every
time Japan has been faced by an ‘event’ or ‘circumstance’ that was not envisaged by thecurrent law even when action is necessary from the standpoint of national defense orinternational cooperation, it has addressed this with new legislative measures. This is thevery definition of ‘too little, too late.’” Shikama then states: “The reason why I describe
it as ‘too little, too late’ is that international relations are inherently irrational andimpossible to define without ambiguity. Indeed, the final measures of resolving

In lieu of a conclusion

43international disputes, such as ‘wars’ that require the exercise of military force, is not
something that can be envisaged in a one-sided manner, or rather in a manner that isconvenient for one’s own country. One does not know what is going to happen and should
be prepared for anything to happen.”6 Elsewhere, Shikama states that “since a military is
responsible for defending its nation against foreign nations, it can only be of use as anarmed group that is prepared for unforeseen emergencies. It must take to heart the pointthat in terms of international relations, there is no way of knowing what will happen.
Therefore, in the case of the military, its authority must naturally be defined by means ofthe ‘negative list method.’ In other words, it must be unlimited in principle.”7 Shikama
concludes that “to escape from this ‘too little, too late’ labyrinth of national defense into
which Japan has unwittingly stumbled, there is no satisfactory alternative but to convert
the SDF into what is referred to as a ‘military force’ in the international community, bothin name and reality. Doing so would automatically grant unlimited authority in principle,
removing the need in the future to take endless new legislative measures that are ‘too little,
too late.’”8 Shikama adds a further radical conclusion: “I believe that in the end, the only
rational solution will be to transform the SDF into a ‘military force.’ Yet while we may
call this a transformation, it cannot be achieved by making a series of minor adjustments
to the current system.” 9 The practical claims of Shikama’s argument do indeed draw
attention to fundamental issues, calling for a reconsideration of this problem. With regard
to forcing a binary choice between a positive (positive principle + positive list method)or negative approach (negative principle + negative list method), or in other words, police
versus military approach to bestowing authority, the clarity of this practical claim makes
it readily acceptable. Furthermore, it aligns with the problems and concerns in practicaldefense, which has been subject to ongoing difficulties associated with operating undervery strict positive list method regulation based on the positive principle. However, thisvery assertion poses the risk of blinding us to a much broader third solution (positive

6

Shikama, “Is the SDF a military?” p. 20.

7

Shikama Rikio, “(Lecture) What are the Self-Defense Forces? —the Essential Difference between the‘Military’ and the Police,” Defense Studies, No.34, March 2006, p.113.
8

Shikama, “Is the SDF a military?” p. 23.

9Shikama “(Lecture) What are the Self-Defense Forces?” p. 112.

44

In lieu of a conclusion

principle + general authorization method) and hindering rational legislative policy
discussions.
3. Viewpoint 3: Differences and interrelations between forms of regulation
Shikama’s negative/positive theory focuses on the regulations of international law, andtherefore it takes a secondary interest in the regulations of domestic law. However,developing the debate by incorporating domestic legal regulations into thenegative/positive theory, and in so doing, considering differences in the forms of theseregulations and their mutual relationships, is beneficial in developing and refining thistheory.
The analysis of the legal systems of countries other than Japan in Chapter 2 revealed that
it is domestic constitutions (in the substantive sense) that serve as the legal basis for thedomestic law aspect of the negative principle (i.e., the principle that “it is acceptable toengage in activities other than those prohibited by law”) in relation to act ofparliament/congress. 10 I will reiterate the main points here as follows. The United
Kingdom has the royal prerogative, which is traditionally recognized as a prerequisite forthe establishment of the negative principle in relation to act of parliament/congress.
Meanwhile, in France, since only some aspects related to national defense are legal
matters in the Constitution of the Fifth Republic, other matters can be determined bydecree without the mandate of law. Furthermore, the powers of the President and prime
minister to make defense policy decisions and exercise supreme military command are
guaranteed as authority under the Constitution. In contrast, in the case of U.S. andGermany, there is potential for application of the positive principle in relation to
constitution (in the formal sense) or act of parliament/congress. However, within thoselimitations, the negative principle is established in relation to act of parliament/congress.
This principle has a legal basis in the context of the U.S. in constitutional provisions suchas the commander-in-chief clause of the U.S. Constitution. In Germany, meanwhile, thenegative principle has a constitutional basis in the authority of the federal government todecide on the dispatch of troops, and the authority of the Chancellor to enact basic policies

10

In this sense, Yamashita’s discussion regarding the negative/positive theory in relation to the domestic

constitution provides valid insight regarding the development of the theory. See Yamashita, op.cit.,
especially pp. 85ff. and pp.104ff.

In lieu of a conclusion

45(Article 65 of the Basic Law), in addition to the authority to issue military orders andcommands, which lies with the federal Minister of Defense (in peacetime) and theChancellor (in times of emergency) (Article 65a). These examples demonstrate that it is
the granting authority (at organizational law level) of domestic constitutions (in thesubstantive sense) that forms the legal conditions for the establishment of the negative
doctrine in relation to act of parliament/congress. Of course, saying that “it is acceptableto engage in activities other than those prohibited by act of parliament/congress,” does
not mean that actions based on arbitrary decisions of armed forces, units, and military
personnel are permitted; rather, it is political supremacy and the chain of militarycommand that form the premise based on organizational law, as is clear from theexamples of the four countries discussed herein.
However, it is noteworthy that even if the negative principle is valid in relation to the law
in this way, its scope is not unlimited, but rather operates within the scope of domestic
authorities or restrictions of constitution (in the substantive sense). It may be difficult tosee such limits in the U.K., where royal prerogatives have traditionally been extensive,
yet even in the U.S., in cases where there is no explicit or implied basis for statutory
legislation, the limits of authority derived from constitutional provisions such as thecommander-in-chief clause are questioned in terms of constitutional interpretation.11 In
this sense, among the countries examined in this paper, though not as extreme as in Japan,
legal regulation of the external actions of the armed forces is not confined to international
law.12
The above analysis demonstrates that the negative principle has its basis in domestic
constitutions (in the substantive sense), with the case of the U.K. being peculiar in thisregard as it lacks a written constitution, meaning that there are cases in which thetraditionally existing royal prerogative serves as the legal basis for the negative principle.
However, in countries with a written constitution, it is clear that the authority of the
11

Regarding the U.S., while there is a notable tendency for presidential powers to expand, the President’s

deployment of the military has been explained as within the grounds and limitations of the U.S. Constitution,even when it cannot be explained thereby whether it is within the authorization of the statutory legislationreferred to in the War Powers Resolution.
12

There is also regulation via rules of engagement that are not laws in themselves. Further discussion ofthis issue is relegated to another occasion.

46

In lieu of a conclusion

constitution (in the formal sense) as the supreme law to grant organizational legal
authority to the executive branch has a special significance for the existence of thenegative principle. It is this state of affairs that guarantees the “ideal type” of the “methodof bestowing authority” to the military in terms of domestic law. Thus, the domestic law
aspect reinforces Shikama’s negative/positive theory, which tended to focus mainly oninternational legal aspects, and highlights the significance of subsequent negative/positive
theories focusing on domestic law.
In this way, the viewpoint that the negative principle in relation to act of parliament/
congress in the context of the military of countries other than Japan is based on domestic
constitutions (in the substantive sense) will likely pave the way for recognition of thelegal basis of the positive principle in Japan. Although Shikama gives little notice to thefact that the negative principles concerning the “method of granting authority” to themilitaries of other countries are based on domestic (in the substantive sense) constitutions,
he does duly take notice of the fact that Japan’s positive principle has its basis in thedomestic constitution (in the substantive sense), pointing out that the “absurdity” of“bestowing authority to the SDF in a ‘too little, too late’ manner” is that “it does not
originate from the legislative policy of the moment. The problem goes deeper than that.
It is a problem of the legal structure originating in the fundamental nature of Japan, thatis, the current constitution… We must recognize that this originates in the structuraldefects within Japan’s current ‘constitutional order.’” 13 I reserve judgment here onwhether or not to evaluate this as a “defect” in Shikama’s words, but suffice it to say that
Shikama was justified in drawing attention to the domestic “constitutional order” as amore fundamental problem than legislative technique.
If we are to position the positive principle in Japan as belonging to the constitutional orderin this manner, then it becomes highly significant, both theoretically and in terms of legal
practice, to consider whether this has a basis in the Constitution of Japan, whether it arises
as a constitutional custom, or whether it is neither of these and is merely a legal
requirement. The significance of this issue is that, if the positive principle has a basis in
the Constitution of Japan, then constitutional revision would be required for Japan toconvert to the negative principle. However, it remains open to debate in constitutional
interpretation as to whether the positive principle does indeed have a basis of the13

Shikama, “Is the SDF a Military?” p. 21.

In lieu of a conclusion

47

Constitution. Shikama argues that, for Japan to switch from the positive to negative
principle, “the current ‘constitutional order’ needs to be changed. In some cases, thewritten law of the Constitution of Japan may also need to be amended.”14 He argues forthe necessity of changing the current constitutional order, but justifiably stops short ofconcluding that constitutional amendment is necessary for that purpose.
Certainly, we have already mentioned the viewpoint that relativizes the view represented
by Shikama (i.e., that it is essential to shift from the positive principle to the negative
principle). Even within the framework of the positive principle, there is a considerable
breadth of specific possible ways to formulate acts of Diet. It is also possible to relativize
the differences between the positive and negative principles if we include considerationof lower-level laws and regulations, action orders, and criteria for unit action. For
example, even if there is no change in the premise that the basis at the level of act of Diet
is in the positive principle, as with the current Self-Defense Forces Act, it is another pointof divergence as to whether, within the scope of authorization based on this premise, thelower-level laws and regulations, action orders, and criteria for unit action (the latter being
equivalent to rules of engagement) are established based on negative or positive principles.
Approaches to regulation on this level will also have a significant impact on flexibility at
the unit level.15
While these issues remain open to debate, even if we adopt the practical claim that afundamental shift from positive to negative principles in relation to act of Diet isessential—which is, needless to say, a highly contentious issue in itself—the wording of
the Constitution of Japan refers to the establishment of a “military” (guntai) (or “SelfDefense Forces” (jieigun) or “National Defense Forces” (kokubōgun)), that would not
immediately establish the basis for a shift by means of the Constitution. 16 Rather,

14

Ibid, p. 23.

15

On this issue, see Sakamoto, “Organizing the Legal Environment for Issuing Operations Orders in the‘Negative List Method’,” pp.158ff. It is of theoretical importance that Sakamoto argues for the necessity ofcarefully considering the regulation of action orders according to the different kinds of duties, and notesthat the shift to a negative approach must be paired with the strengthening of democratic legitimacy.
16

Ishiba’s negative/positive theory, mentioned at the beginning of this paper, continues from a preamble

stating, “The point is not that all we have to do to make the Self-Defense Forces into an army is to change

48

In lieu of a conclusion

fundamentally, as the examination of other countries in this article has made clear, the“method of bestowing authority” to the military is not only a matter of international law,
but also of the specific nature of the constitution (in the substantive sense) of each country.
Therefore, with regard to the “method of bestowing authority” to the Japanese SDF or“military,” as an issue relating to the Japanese constitution (in the substantive sense), it isnecessary to specifically question the interpretation of the Constitution of Japan and theconstitutional customs or important rules of law that exist under the supreme legal
authority of the Constitution. This questioning must be in line with each point of debate,
including, for example, the distribution of supreme policy-making authority and supremecommand regarding defense and military affairs, the positioning of various military
functions in terms of the debate over state functions, and the allocation of jurisdiction for
the establishment of norms on defense and military matters. This is a fundamentallydifferent approach from conceptions that lead to Gordian knot-esque solutions to theseissues by imposing a normative and practical significance (significance as an “idealistic
type,” so to speak) onto the “ideal type” of the “method of granting authority” to themilitary.

the Constitution alone.” (Proceedings of the 151st House of Representatives Security Committee Meeting,No. 8 (June 14, 2001), p. 8).

Summary

Analysis and Verification of "Negative List-Positive List
Theory"Rintaro Yamanaka
Professor
Department of Public Policy
National Defense Academy, Japan
Negative List-Positive List theory is the concept that explains an essential characteristicof the militaries of liberal-democratic countries and the defense legislations of Japan.
According to this theory, the military can legally do anything that is not prohibited by law
while Japanese Self Defense Force can only do what is permitted by law.
First, this article makes the target of verification clearer by analyzing the theory(Chapter 1). And next, it clarifies the present situation of four countries (UK, US,
Germany and France) positive-laws (Chapter 2). Then it implements verification of thetheory (Chapter 3). It also shows implication based on the verification.
The target of verification is legal regulations of "action" and "authority" for foreign
military duties. The schema of the theory is fundamentally accurate except for legal of"action", in US and Germany. Also, when a step-by-step relation between constitution
and act of parliament / congress is taken into account, the possibility that we can develop
the ideal type more will become clear. On the other hand, quoting this schema as thepractical guideline for Japanese legislation isn't methodologically appropriate, because theideal type itself doesn't have practical meaning.

AuthorRintaro YAMANAKA
Professor , Department of Public Policy , National Defense Academy , JapanGLOBAL SECURITY Study Series NO. 3

Analysis and Verification of "Negative List-Positive List Theory"
December 2023

AuthorRintaro YAMANAKA

Copyright ©National Defense Academy, Japan Ministry of Defense
Center for Global Security, National Defense Academy, Japan Ministry of Defense
1‑10‑20, Hashirimizu, Yokosuka, 239‑8686, JAPAN
Phone: +81‑46‑841‑3810 ext. 2414
ISSN

2433-4200（Online）

Online ISSN 2433­4200

GLOBAL SECURITY Study Series NO. 3

Analysis and Verification of "Negative
List­Positive List Theory"

Authored by Rintaro Yamanaka

December 2023

Center for Global Security
National Defense Academy, Japan Ministry of Defense