order. The existing legal order, therefore, represents the limit to the extent of the budget right of parliament. What is financially necessary for the carrying out of this order, is always valid budget (Art. 67 and 71). But expenses for any new government measure always require the consent of the Diet.
Very interesting are Roesler's remarks on the right of review of cabinet ordinances by the courts, which form the very last remarks of his Commentaries. (Text, pp. 251-2) He concedes that the courts can pronounce the incompatibility of ordinances with existing law. In a memorandum, he had pointed out that, if this right was to be denied to the courts, it would have been expressly so put in the constitution, and in his own draft of the constitution he says: 'Courts and administrative authorities have no right to examine the validity of laws and ordinances which have been promulgated in the orderly way.' His reservation against the review right of the courts springs from his conviction that juridical supremacy was not the ready remedy of legal abuses, but that the legislative and the executive had each to keep the boundaries of the constitution.
Footnotes
14 伊東已代治
15 大日本帝国憲法義解
16 憲法説明
17 国体
18 Fr, Julius Stahl, Das monarchische Princip, 1845, ders,, Die Staatslehre und die Principien des Staatsrechts, 3., 1856, especially Chap. 12: Das monarchische Princip.
19 天壌無窮
20 See Inada Masatsugu 稲田正次,Meiji kempo seiritsu-shi 明治憲法成立史 (History of the Framing of the Meiji Constitution), Tokyo, 1962, II, 248.
21 Roesler, Gedanken über den konstitutionellen Wert, p.17.
22 一木喜徳郎,有賀長雄
23 See Suzuki, 'Hermann Roesler,' Monumenta Nipponica, V, 382-384. Inada, Meiji kempō, 589.
24 See Inada, Meiji kempō, II, 629-631.
25 Ibid., pp. 257, 573, 823.
26 Ibid., pp. 1075-1081.
27 'Über Verwaltungsgerichtsbarkeit,' in Ztschr, f. das Privat- und öffentliche Recht der Gegenwart, I Bd, 1874, 'Der Osterreichische Verwaltungsgerichtschof,' ibid., IV Bd, 1877.
28 See Gyōsei saibansho gojūnen-shi 行政裁判所五十年史(Fifty Years of Administrative Court), Tokyo, 1936, pp. 13, 41, 54.
CHAPTER FOUR
Social elements in Roesler's thought
Our over-all discussion of the political theory of Roesler had made clear the extent to which this theory was indebted to the classical doctrine of German monarchical constitutionalism. His theory contains, however, one element which is not to be found—or at least has not been developed—in classical conservatism. This new element, which modifies essentially the conception of the state according to monarchical constitutionalism, is his insight into the new social role the state must play in modern industrial society. I have pointed out above how deeply Roesler penetrated into the problems of modern capitalistic society and how clearly he understood the connection between capitalism and liberal constitutionalism, how to his mind the organization of a social administration was the one way to maintain the order of cultural life and secure the harmonization of social interests amidst the dynamics and conflicts of industrial society. This social conception was very much in his mind as he set about preparing a draft for the Japanese constitution.
The constitution of 1889 certainly does not provide for the organization of a social state such as Roesler desired. He thought of the constitution only as a fundamental framework for a modern Japanese state. He envisaged, however, that upon this framework would be constructed a social administration, which for him was the real form of organization the modern free society must have. In his conception of the Meiji Constitution, the state and the means of power at its disposal were without a doubt designed for the development of social administration, and that for him meant essentially the self-government of a free cultural society.
The goal of social organization, which is at the base of his thinking, is not immediately evident in Roesler's commentary, but is not wholly absent either. I have drawn attention to his interpretation of Article 27 in which he says: 'The establishment and development of a true national system of property is one of the greatest and most difficult legislative problems.'
In his proposed economic legislation the tendency to check from the outset the evils consequent upon an unlimited capitalism is very pronounced. From this motive springs, for example, the call for state supervision of banks, proposed in his draft and adopted by the Japanese bank legislation of the 1880's. (In contrast to this, most Western states adhered at that time to a policy of freedom for the banks and only the experience of the world economic crisis of the 1930's prompted the establishment of state bank supervision.) Roesler had already, at an early stage, presented drafts for a social labor law, of which at this time, however, very little was realized. He was also, as I have pointed out, in favor of a universal election system as a counterbalance to the interests of the capital-possessing classes.
In a memorandum drawn up on June 4, 1887 in connection with the draft of the constitution, Roesler develops an overall plan for setting up the modern Japanese state as a monarchical socialized state.29 The basic points of this memorandum are as follows: 1) In modern Japan's development of commerce and industry the acquisitive bourgeoisie will most certainly emerge as the dominant class. The justifiable demands of this class the state will have to take into account. 2) The tendency of the acquisitive class toward ever greater profit will, if left unchecked, undermine the security of the other classes, both that of the land owners and of the propertyless. It is the most urgent task of the state to maintain impartially the welfare of the whole and a harmonious social balance by means of social legislation with an active administrative policy that works for the physical and spiritual welfare of the lower classes. The maintenance of a free peasantry, founded upon the institution of inherited property, has to be especially cared for. 3) To overcome class conflict and to maintain an ethical political attitude that places the welfare of the whole above class interests, the institution of hereditary monarchy is of inestimable value. This monarchy, traditionally considered to be the procurer of the common welfare and the custodian of the weak, and possessing the loyalty of the weak, is in a unique position to foster social harmony.
In this memorandum the idea of 'social monarchy' is clearly discernible. The real author of this concept is Lorenz von Stein. The concept found many adherents between the years 1850 and 1890 among those who sought a solution for the social question on the basis of the conception of an organic Christian state. Even the social legislation of Bismarck was inspired by this idea. Lorenz von Stein and Rudolph von Gneist had this notion of social monarchy in their minds as they imparted their teaching on monarchy to the Japanese leaders. This notion of social monarchy represented a new justification of monarchy in the face of the social problems of the 19th century: kingship—from olden times conceived as the embodiment of the idea of justice for all and protection for the weak—can and must in modern society identify itself with the idea of the social emancipation of the fourth estate. In this day the monarch has to play the role of moderator in the class conflict and to establish order and social balance. To fill this role he must enjoy in the constitution a position that is independent of parliament, inasmuch as parliament is made up of political factions representing definite class interests. The conception of a monarchical socialized state is not, therefore, a negation of the liberal constitutional idea but a complement to it. The monarch, standing above all class interest, can see to it that all members of society have an equal freedom of development, a freedom that in a class society is not sufficiently ensured by universal suffrage and the party system of parliament alone. Stein, Roesler, and Gneist represent a certain modern form of German monarchical constitutionalism based in its entirety upon an insight into present-day social problems. We may call this school of thought a kind of social constitutionalism inasmuch as in this school the fundamental constitutional concern for securing individual freedom is modified by