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May 17, 2009

憲法9条と「新しい戦争」➀

 「新しい戦争」と憲法9条をテーマに本を執筆しようと思う。動機は、憲法論争の前提となっている「戦争」が改憲派、護憲派も含め、なによりも憲法9条そのものもが、「旧い戦争」を前提にしていることに強い違和感を常に覚えてきたことにある。国家間の「旧い戦争」を前提にして、いくら憲法論議をしても、眼前の「新しい戦争」に対処はできない。もう時代おくれの議論は止めにして、「新しい戦争」にあった憲法論議をすべき時がきている。
 というわけで、憲法9条を中心に改憲派、護憲派の議論を折に触れて紹介していきたい。まずは、憲法9条がなぜややこしい問題になっているかを少し述べておきたい。憲法9条の改憲、護憲問題は単に憲法解釈問題というわけではない。次のような問題が絡まって、いわゆる憲法に関する問題群を生み出している。
 第1に歴史問題。過去の侵略戦争や植民地支配あるいはいわゆる従軍慰安婦等の日本の負の歴史に対する反省や「良心の疚しさ」の象徴としての憲法9条という視点を提起するのが、この歴史問題である。
 第2に政治問題。憲法9条こそが中国、韓国そしてアジア諸国さらには国際社会に対し日本が平和主義に基づく友好協力関係を維持していく上で何よりも強力な政策であるとの視点である。
 第3に宗教・倫理問題。憲法9条はキリスト教の「汝、殺すなかれ」、仏教の「非殺生」の教えを体現しており、もっとも倫理的に優れた憲法であるとの視点である。
 第4に安全保障問題。厳密には国家の自衛権も、また集団的自衛権を認めない憲法9条では日本の自衛どころか日米間の同盟関係や国連の集団安全保障体制にも原理的には参加できず、国家安全保障に大きな支障をきたしているという問題である。
 1から3はおもに護憲派の主張であり、だから憲法を守るべきだということになる。4は改憲派の主張である。こうした問題意識が憲法解釈の背景にあるために、憲法9条問題が単に憲法解釈問題にとどまらず、政治、宗教、安全保障などさまざまな分野の問題に波及していくのである。もっとも一般に憲法そのものがもともと政治、宗教、安全保障と密接に関わっているが故に、憲法問題を議論しようとすれば、こうした問題群に触れざるを得ない。
 とはいえこうした諸問題を抱える憲法問題を純粋に憲法(解釈ではない)という視点から捉え直し、現状のままで何も問題ないというのが、長谷部恭男『憲法と平和を問い直す』(ちくま新書465、2004年)の議論である。
 長谷部は、そもそも憲法は原理であって準則ではない、という(長谷部、171頁)。準則と原理の違いを、長谷部はこう説明する。「一般に法規範といわれるもののなかには、ある問題に対する答えを一義的に定める準則と、答えをある特定の方向へと導く力として働くにとどまる原理とがある」(171頁)。準則の例として、「駐車禁止であるか否かを定める法は準則」。一方原理の例として、「表現の自由などの憲法上の権利の保障を定める規定」を挙げ、これらの規定は「原理を定めているにとどまる」。というのも、「表現の自由が保障されるからといって、人の名誉やプライバシーを侵害する表現活動にいたるまで、文字どおり『いっさいの』表現の自由が保障されるわけではない」からである。
 長谷部はこう述べた上で、憲法9条は準則ではなく原理であるという立場をとる。一切の武力行使を禁止し、また一切の戦力も持たないという駐車禁止規定のような準則として憲法9条を解釈するのではなく、表現の自由のような原理として、できるかぎり武力を行使しない戦力を持たないという「自己拘束的」な規定としてとらえるべきだ、というのが長谷部の主張である。長谷部は、この方策を「穏和な平和主義」と呼び、第9条を準則として見る護憲、改憲に反対している。
 長谷部によれば、憲法9条を準則としてみれば、とりうる日本の安全保障政策は次のような政策しかないという。つまり自衛隊を廃棄し国家による自衛も否定すれば、日本が侵略された場合には、第1に群民法規やパルチザン戦による侵略群への武装抵抗、第2に非暴力不服従、第3に一切の抵抗をせず侵略・支配を受け入れる「善き生き方」としての絶対平和主義、第4に「世界統一国家による『全世界を覆う警察サービス』を実現する。このいずれもがわれわれが望むような平和をもたらさずかえってパルチザンなどのゲリラ戦ではかえって戦争を激化させ、また不服従であれ、侵略容認であれ、世界警察であれ圧政に苦しむ恐れがあるが故に、現状のままの「穏和な平和主義」でいいのではないかというのが長谷部の主張である。
 憲法9条を準則か原理かという問題に置き換えて議論するのは、言い換えれば、生活の知恵である。私たちは日常生活の中で、準則か原理かなどと小難しいことをいわないまでも、こうした事例をよくみかける。たとえば総論賛成、各論反対というものいいである。たしかに総論としては正しいが、各論については例外も認めるということである。そうでなければ政治はもちろん日常生活もおくれない。
 実際、非暴力主義の原点である「汝、殺すなかれ」というキリスト教の教え自体が「準則」ではなく「原理」だからこそキリスト教徒は今日まで迫害や戦争から生き延びてきたのである。また仏教の「非殺生」も原理だからこそ、仏教徒も生きることができるのである。非殺生が準則なら、仏教徒は一切の生類を口にできない。
 長谷部の主張はこれまでの日本政府の現状追認、妥協による憲法9条政策を正当化する議論である。だからといって改憲せずにこのまま「新しい戦争」の時代の原理としても有効ということにはならない。憲法9条はあくまでも国家間の「旧い戦争」の時代の国家の原理を定めたものである。長谷部もまた「旧い戦争」を前提に議論を進めており、そこに彼の主張の限界がある。 

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