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June 12, 2015

集団的自衛権異聞

 集団的自衛権問題が喧しい。とりわけ自民党推薦の長谷部恭男早稲田大学教授までもが違憲と断じたために、政府は一気にコーナーまで追い込まれてしまった。ところで長谷部教授は『憲法と平和を問い直す』(筑摩新書、2004年)で、憲法を原理、原則、理想の表明という立場から護憲論を展開している。その意味ではいわゆる原理主義的護憲派とは一線を画している。今から6年前に、そのことについてブログに書いたことがある。何かの参考になればと思い、再掲する。

 憲法を原理、原則、理想の表明という立場からの護憲論がある。たとえば長谷部恭男『憲法と平和を問い直す』(筑摩新書、2004年)や内田樹『9条どうでしょう』(毎日新聞、2006年)などである。これまでの憲法論議は改憲派、護憲派のいずれであれ、憲法9条を道路交通法のような「準則」と考え、現実と憲法との乖離を問題にしてきた。改憲派は現実にあわせて憲法改正を主張し、護憲派は憲法を厳守して現実を変えよと叫ぶ。
 どこかで似たような話しを読んだことある。中江兆民『三酔人経綸問答』である。改憲派、護憲派の論争は東洋豪傑君と洋学紳士君の問答そのままだ。武装を主張する東洋豪傑君、非武装を主張する洋学紳士君の説を南海先生はそれぞれ次のように批判する。
 「紳士君の説は、ヨーロッパの学者がその頭の中で発酵させ、言葉や文字では発表したが、まだ世の中に実現されていないところの、眼もまばゆい思想上の瑞雲のようなもの。豪傑君の説は、昔のすぐれた偉人が、百年、千年に一度、じっさい事業におこなって功名をかち得たことはあるが、今日ではもはや実行し得ない政治的手品です。瑞雲は、未来への吉兆だが、はるかに眺めて楽しむばかり。手品は、過去のめずらしいみものだが、振り返って痛快がるばかり。どちらも現在の役にたつはずのものではありません」(中江兆民、桑原武夫・島田分虔次訳・校注『三酔人経綸問答』岩波文庫、93頁)。
 そして南海先生の意見は、二人にとっては全く期待はずれにも、至極当たり前のものであった。南海先生の言によれば、「国家百年の大計を論ずるばあいには、奇抜を看板にし、新しさを売物にして痛快がるというようなことが、どうしてできましょうか」(109頁)。「外交の方針としては、「平和友好を原則として、国威を傷つけられない限り、高圧的に出たり、武力を振るったりすることを」しない(109頁)。
 これまでの憲法論議は、東洋豪傑君と南海紳士君の「奇抜を看板にし、新しさを売物にして痛快がる」ような論争ではなかったか。長谷部や内田らの議論は、まさに憲法9条を原則、理想としつつ、実際には政治家が責任倫理にしたがって妥協の術としての政治により原則に則って理想を実現できるよう憲法9条を弾力的に解釈、運用するのが一番ということになる。だから「日本国民は、恒久の平和を念願し、人間相互の関係を支配する崇高な理想を深く自覚するのであって、平和を愛する諸国民の公正と信義に信頼して、われらの安全と生存を保持しようと決意した」との理想を掲げた前文はもちろん、理想としての憲法9条の条文も変える必要はないということになる。
 理想、原則としての憲法9条というのは、ユダヤ教、キリスト教の「汝、殺すなかれ」あるいはジャイナ教、仏教の「非殺生」の教えに似ている。これらはいずれも絶対的な教えではあるが、原則や理想であって、この禁戒を厳密に実践している者など誰一人いない。「汝、殺すなかれ」の教えでは殺してはいけない対象である「汝」の範囲が、人間であり、また同胞であり、また殺人者以外でありと、さまざまに限定を加えながら、現実には多くの「汝」を殺してきた。さもなければユダヤ教もキリスト教もとっくの昔に消滅していたろう。またジャイナ教の「非殺生」の対象も動物であり、また動物でも四つ足の哺乳類とするなど、さまざまな解釈が加えられ、今日ではほとんど守られてはいない。
 護憲派には熱心なキリスト教徒や仏教徒が多い。信仰を基礎にした護憲論は護憲論として尊重すべきである。しかし、そのそれぞれの宗教においてすら、原則は原則として、弾力的に解釈すべきものだとされる。たとえば、ボンヘッファーの事例である。20世紀を代表する高名なルーテル派のドイツの神学者であるボンヘッファーは、ヒトラー暗殺計画に加担し、ドイツ降伏の直前に処刑された。「汝、殺すなかれ」の実践を誰よりも求められる聖職者が暗殺を計画したということをどきように理解すべきか。日本で最も高名なキリスト神学者の一人である宮田光雄聖戦は、ボンヘッファーの行為をこう擁護する。
 暗殺計画加担が問題とされるのは、「ボンヘッファーにおける平和主義と暴力的抵抗とのあいだに矛盾があると考えるからです。しかし、このことは、ボンヘッファーが無時間的な原則主義的倫理につねに反対していたことを思い起こせば、解消するのではないでしょうか。たとえば、テート教授によれば、ボンヘッファーは、『じっさい、最高の諸原則というものを、-それがたとえ平和主義や平和であったとしても、拒否した。むしろ、現在の状況において、何が生ける神の具体的な戒めとして聞かなければならないか、を具体的に問うのである」(宮田光雄『ボンヘッファーとその時代』新教出版社、2007年、379頁)。
護憲派は、ボンヘッファーのように「最高の諸原則」である憲法9条を拒否してでも、「現在の状況において、何が生ける神の具体的な戒めとして聞かなければならない」だろう。だからといって「汝、殺すなかれ」という教えが否定されるのではない。あくまでも教えは教えとして、原理は原理として、原則は原則として高く掲げなければならない。 
 長谷部や内田が主張するように、憲法9条も「汝、殺すなかれ」と同様に原則として理解する限り、改憲する必要はない。拒否すべきは改憲派、護憲派の「無時間的な原則主義的」憲法解釈である。とはいえ、状況に対応した憲法解釈では、解釈次第では、いかようにも解釈が可能となり、事実上無憲法状況に陥って理想をまったく蔑ろにする恐れがある。理想と現実との甚だしい落差は、「汝、殺すなかれ」「非殺生」との教えがありながらキリスト教徒や仏教徒がいかに多くの殺戮を繰り返してきたかを思い起こせば十分であろう。だから、融通無碍、勝手気ままな憲法解釈ができないように何らかの歯止めが必要となる。改憲が必要とすれば、まさに現状の解釈改憲に歯止めを効かすような改憲であろう。

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