tendency be further strengthened by the legislation of the state. What he wants is not the regimentation of cultural life by the state, but its free development in accord with the order of social freedom, that is the 'social law'. The state must identify itself with the needs and impulses of modern society and fill them with the spirit of social law. The formally liberal Rechtsstaat must become the 'state of social law' in the full sense, so that by its administration it becomes the central organ of social corporation for the cultural aims of the community.
For such an orientation of the science of administrative law the leading scholars showed little understanding. At that time, the science of constitutional and administrative law in Germany was already on its way to a rigid legal formalism. By sharp attacks against leading scholars, Roesler even widened the rift which separated him from the dominating school of economics and public law. With von Gneist, the head of the national liberal school of constitutional law, he engaged in a sharp controversy on the value of the Prussian 'self-government', which was inspired by von Gneist. In general he became deeply dissatisfied with the political trends in the German Empire under Prussian hegemony. In 1877 he published a scathing critique of Bismarck's Constitution of the German Empire, Gedanken über den konstitutionellen Wert der deutschen Reichsverfassung. He calls it 'a work of a thoroughgoing dissimulation and distortion of fundamental and recognized legal concepts. It confuses especially all concepts of a monarchical and constitutional public order.' Therefore, he predicts, it will not endure. Finally Roesler entered the Catholic Church and, by this, lost his teaching chair at the University of Rostock. At about this time, however, he was invited by the Japanese Minister at Berlin, Aoki Shūzō,5 to become legal adviser to the Foreign Ministry in Tokyo. In the autumn of 1878 he left with his family for Japan.
Footnote
5 青木周蔵
CHAPTER TWO
Roesler's activities in Japan
Japan in the 1880's built up the basic institutions of a modern state. The military forces, organized after 1872 on the basis of general conscription, were made into a corps absolutely devoted to the mission of the Emperor by imbuing them with the spirit of the Military Code of 1882. The free development of a capitalistic economy was assured by the reform of the monetary system and the promotion and legal ordination of joint stock companies and banking enterprises. The educational system was adapted to the needs of a progressive society bent on acquiring equality with the Western powers, but at the same time rooted by the Rescript on Education of 1890 in the traditional morality. The state became what is termed in German, a constitutional Rechtsstaat and a Verwaltungsstaat, operated by a professional civil service. Roesler had a decisive share in building up all of these institutions except the military.
Roesler began his career in Japan in 1878 as legal adviser to the Foreign Office in regard to matters of the treaty revision and the diplomatic issues of the Korean imbroglio. By 1881 he had already advanced to the post of first legal adviser to the government, in which capacity he dealt with all questions which concerned the modernization of the legal and administrative system, and was able to extend his influence to all ministries involved in the work of reform. He enjoyed the extraordinary confidence of the government leaders, to the point, in fact, that there seems to have been hardly any important affair of state in which his advice was not requested.
Roesler was guided in his work for the Japanese state by the conviction that Japan by entering into contact and commerce with the Western world had irrevocably committed itself to becoming a modern industrial society, and that its cultural development had to be directed toward the universal culture of the emerging world community. His work in Japan was dedicated to the development of those institutions which, according to his historico-sociological views, make up the essential organization of modern society: the economic order of free capital and the constitutional order of the Rechts- und Verwaltungsstaat.
His share in the economic legislation of the Meiji era is still a largely unexplored field. He had a hand in the erection and legal regulations of the Bank of Japan. Better known is his draft of the Old Commercial Code which was finished in 1884 and became a law, after minor revisions, in 1890. Already in 1882 the part of his draft dealing with bills of exchange and promissory notes had been made law. The Stock Exchange Law of 1887 and the Bank Law of 1890 were also drafted by him. He urged the introduction of social labor regulations which were more progressive than those finally adopted in Japan's first Factory Law of 1911. His influence on the state organization is first discernible in the fateful year 1881 when the conservative line for the solution of the constitutional question was fixed.
The years when Roesler grew familiar with the Japanese political scene and established his position in the government are the years in which the movement for popular rights reached its zenith. Roesler looked at this movement with distrust and apprehension. To him, who was in principle opposed to the individualistic conception of freedom advocated by radical liberalism, the goals of this movement, taken over from the writings of the radical French and English Liberals, were nothing more than deplorable aberrations from the path to true social freedom, and its leaders mere doctrinaires, who, beguiled by ideas they hardly understood, were ignorant of the law of organic historical progress. In his eyes, the movement for popular rights was the agitation of an immature intelligentsia, not a true popular movement which reflected the true spirit of the nation. He perceived clearly that the aims of the liberal movement went to undermine the sovereign position of the Emperor. His views on the institution of the Emperor must have been formed by his daily contact with the government leaders, Sanjō, Iwakura, Itō, Yamagata6 and a score of others. Although not blind to their personal weaknesses and ambitions, he came to respect these men as the elite of the nation. For these men the idea of the imperial dynasty was the fundamental faith, the real spring of their political activity. They considered their work as service in the cause of the Tennō and the dynasty as the ground pillar of the national life. The absolute convictions and aspirations of these men must have impressed Roesler deeply and formed his judgement as to what the vital forces of Japan's national life really were. In his eyes the vital forces of new Japan were not reflected in the slogans of the liberal intelligentsia, but in the convictions and aspirations of the conservative government leaders. In daily contact and collaboration with these men, he came to hold the view that loyalty to the imperial house was the life spring of the new era, and the monarchy, in fact, the very foundation of national life and the only institution on which the new political order could be built. Consequently, the institution of the Emperor had to be the center of the new constitutional system.
In no way does Roesler show himself in his German publications to be a narrow-minded conservative monarchist; in his sociological views he appears rather to be a liberal, a liberal, however, with a historical sense for the organic in cultural growth.7 Immediately before his coming to Japan he had still advocated, in his criticism of Bismarck's federal constitution, parliamentary government as the ideal.8 Taking stock of the political forces he met on the Japanese scene at the beginning of the second decade of the Restoration era, he became a determined advocate of a strong monarchical rule for new Japan. But he was never an advocate of patriarchal or absolute monarchy. He wanted a constitutional monarchy—a true and substantially constitutional monarchy, not a constitutionalism which was a mere façade. The synthesis of imperial sovereignty and constitutionalism, the organic modernization of the Emperor's rule by adopting into it the universally valid elements of a true constitutionalism— this was for him the guaranty of the healthy development of the new Japanese state.
The basic tenets of a monarchical constitutionalism he found in the constitutions of the German monarchies. For the particular articles, the Prussian Constitution of 1850, which was the latest and most highly developed legal expression of monarchical constitutionalism, presented the most usable material of reference. But he was in no way a mere imitator of the Prussian Constitution. The most essential feature of his constitutional conception, the stress on the social administrative role of the state, goes beyond the horizon of the authoritarian monarchical constitutions of the 19th century.9
Roesler's memoranda helped to shape very substantially the constitutional program of Iwakura which was adopted by the government in 1881 and remained