conditioning of freedom and by the stress upon the social duties of the state.
An essential element of this constitutionalism, very pronounced in the teaching of these three scholars who influenced the shaping of the Meiji Constitution, is the attribution to the administrative action of the state of a creative function independent of the legislative. Modern social order requires an administration that is actively shaping social policy and that can meet on its own initiative the numerous concrete tasks of social welfare. This social role can be fulfilled only when the administration possesses a broad, independent right of ordinance, when it enjoys freedom of activity and is not bound at every step to the decision of a parliament, especially a parliament that is itself bound to party interests. It is not an absolutist conception of the state that leads these men to demand a relative independence of the administration from the legislative branch of government, but rather their insight into the new social function of administration in a modern state. Roesler in his commentary (Art. 9) makes mention of some typical examples of the modern administration's economic and social responsibilities:
The national currency, banking institutions, the organization of the different branches of industry and commerce, public roads, railways, the use of rivers for navigation and other purposes, and so on, are evidently administrative matters which must be regulated for the promotion of public welfare and development of the national civilization. (Text, p. 86)
In what follows this passage he advocates progressive legal ordination of such administrative duties. In general, we can say that according to Roesler the state provided for in the Meiji Constitution was to be a modern socially-functioning administrative state which through its own activity orders the continually new requirements of modern life, according to 'social law'.
Roesler knew, however, that such a social administrative state could function only under an expertly trained and impartial public officialdom. Like Stein and Gneist he stressed strongly the role of such an officialdom and fostered its development to a great extent. He considered as very necessary a certain kind of bureaucracy, that is to say, a system of state administration in which a class of public officials, firmly imbued with the social idea of the state and the monarchy, shape the conduct of public affairs; and he sought to provide in the Meiji Constitution for a system of government in which just such a bureaucracy would be one of the decisive factors of governmental life.
At the same time Roesler recognized the dangerous potentialities of modern state bureaucracies and their penchant for suppressing freedom. The organic counterweight against such suppression was to his mind the kind of social self-government he described in his chief work Das soziale Verwaltungsrecht, the establishment of which was the real aim of his work in Japan. The Meiji Constitution does not contain any definite provision for self-government, but, on the other hand, it contains nothing against the development of such a system. In his comments on Article 10, Roesler enumerates the administrative institutions which are exempted from the imperial right to organize the administration, and he mentions in particular 'the organization of self-governmental bodies in Ken, Fu, Gun or local communities, as thereby the performance of certain parts of the public business is entrusted to independent organs and ceases to appertain to the Emperor alone.' (Text, p. 91) Further he says: 'Self-governmental institutions, although they belong generally to the system of public business, create important rights and duties on the part of the subjects in regard thereof which more properly are determined by law.' (Text, p. 92)
The legislation of 1889-1890 on local self-government is based in the main upon proposals made by the Cabinet advisor Albert Mosse, a disciple of Gneist, taking as its model the Prussian organization of self-government. Now Roesler had opposed most vehemently certain essential points of Mosse's proposals, e.g., the composition and function of these self-governmental bodies in Mosse's plan.30 Roesler's opposition to Mosse springs from his opposition to Gneist's conception of self-government. The right proportion between state control and self-initiative seemed to him lacking in Gneist's conception, and the real nature of cooperative self-government completely distorted. He feared from the influence of the ideas of Gneist and Mosse—and their influence upon Yamagata was considerable—an obscuration and distortion of the plans of a state organization such as he had in mind. He had worked to develop in the local communities corporative self-government; he had thought of self-governmental bodies, organized as corporations of public law, for fulfilling the common cultural tasks of society. In the field of economic administration, as, for instance, in the rapidly developing Chambers of Commerce, his ideas were partially realized, but, seen in the whole, the system of social self-government he dreamed of for Japan was never realized. In this fact I see the main reason why the Meiji state became a bureaucratic absolutism.
Footnotes
29 See Inada, Meiji kempō, 1960, II, 142-148,
30 Unpublished memorandum, 'Über den Gesetzesentwurf der Kreis- und Bezirksselbstverwaltungsordnung' in the Library of the Tōkyō shisei chōsakai 東京市政調査会.
CHAPTER FIVE
Some Concluding remarks
In my exposition of Roesler's constitutional thought, I have stressed the peculiar social ideas which are apparent in it. I believe that the key to his whole conception of the constitution is to be found in his idea of the 'social state', derived from his fundamental philosophy of the 'social law' as the 'order of social freedom'. And I believe that it was the nonrealization of his social conception of the state which was the main reason for the failure of the Meiji Constitution and the breakdown of the Meiji state.
Roesler's conception of the constitution, its role and its organic development rests on a presupposition which is not written in the constitution and cannot be written there. It presupposes that in the people and especially in its leading classes a consciousness of social freedom is alive and that the constitutional system draws its life energy from this awareness. The spirit of social freedom and social law which for Roesler is the life-spring of the social state has an ethico-religious root. Roesler considered it an offspring of the Christian idea of humanity. Only the Christian religion which sees every man personally called to God can uphold the freedom and social responsibility of the person with an absolute conviction. Roesler believed that these essentially Christian ideas would be accepted everywhere in the modern world, and that the cultural development of Japan after the Restoration was moving in a direction toward the realization of these ideas. Therefore the process of modernization of Japan was to him, in its deeper aspect, the progress in the awareness of social freedom—of that social freedom as he understood it in the sense of Christian humanism. On this optimistic faith his whole constitutional theory rests.
In reality however, in the socio-cultural transformation of the Meiji era no Christian humanism took root in the new nation. On the contrary, the new nation came more and more under the sway of a social ideology fundamentally hostile to the spirit of social freedom, and that prevented the realization of the free and social state which Roesler had in mind. That ideology was the kokutai ideology.
The Japanese took over in the Meiji era a multitude of ideas and institutions from the West in an adventurous and utilitarian spirit, abandoning old traditions without rooting themselves in a deeper Weltanschauung. The lack of an absolute conviction as a hold and guide in the onrush of the new ideas was rightly perceived by the conservative leaders to lead to spiritual and moral confusion and to endanger the national ethos. Therefore, they attempted to make the kokutai ideology the spiritual base of new Japan.
Itō said in the speech opening the deliberations of the Privy Council on the constitutional draft: 'In Europe, religion is the foundation of the state. The feeling and thought of the people is deeply penetrated by and rooted in religion. In our country however the religions represent no important force. In our country what alone can be the foundation is the Imperial House.' From this belief springs the first basic article of the constitution: 'The great Empire of Japan shall be reigned over and governed by a line of Emperors unbroken for ages eternal.' This first article was meant as brief summation of the whole kokutai ideology. In the by-documents to the constitution, the imperial proclamations on the occasion of the promulgation of the constitution, this ideology is fuller revealed. It is noteworthy that the more liberal constitutional