to the kokutai, the works of Inoue and of Roesler are in substantial agreement in their exegesis of the articles of the constitution. Roesler's Commentaries, however, is more detailed, more scientific, and more definite in the conclusions it draws from the principles of the constitution. Moreover, the emphasis of the two commentaries is quite different. Inoue considers it important to show the unity of the constitution with the historical kokutai, whereas Roesler ignores the specific kokutai of Inoue.
Roesler's commentary is a superb juridical interpretation of the constitution, written by a man more competent for the task than anyone else. Roesler attempts to explain the basic juridical principles of the constitution, and yet his work does not smack of juridical formalism. Roesler does not prescind from the political significance of the articles and takes pains to make clear the fundamental political philosophy therein contained. In his interpretation, Roesler does not try to hide his philosophy of law, a philosophy which the others who took part in the formation of the constitution probably did not fully share. I shall try to make these differences clear in my remarks on Roesler's commentary. Except for such points, the commentary reflects the political and juridical concepts that went into the making of the constitution. We cannot find expressed with the same clarity and the same compactness in any other document the principles which had guided the fathers of the constitution during the long period of preparatory studies.
The fundamental constitutional theory upon which Roesler's commentary is based is that of constitutional monarchism. Constitutional monarchism finds in this commentary a definitive expression such as is to be found to my knowledge nowhere else in the English language. The constitutional principles realized in the Meiji Constitution are set forth with great precision in the introductory remarks:
1 A constitutional government is formed when the exercise of governmental power is to a certain extent controlled by, or brought under the influence of the people. It is opposed to an absolute government in which the people have no political rights, that is to say no legal power to control and influence the acts of government . . . . The formation of a national representation for controlling and examining the acts of government is essential to a constitutional government.
2 A constitutional government may be . . . either simply representative or parliamentary. A parliamentary government is that in which the balance of political power rests with the national representation, while in a representative government that balance rests with the monarch. For Japan, by the present constitution, a representative, not parliamentary, system has been established.
3 The most essential political right, to be granted by a constitution, is the right of voting on laws and the taxes. Without this power of self-assertion and self-protection of individual rights, especially of the right of property, by the people, there is no true constitution. The right of voting on the laws and taxes is the constitutional center toward which all other political rights gravitate.
Roesler holds that by adopting the essential constitutional principles but upholding the sovereignty of the Emperor, 'the time-honored elements of the original Japanese Constitution have been maintained, and the sacred Imperial power, as it has been transmitted from ages immemorial, has not radically been changed but only developed into a more convenient condition according to the requirements of time.'
Does the constitution bear out this grand statement, which we find also in the Imperial Oath on the Constitution and in all official pronouncements on it at that time and later? In actual fact the synthesis between the traditional imperial principle and the modern constitutional principle was the fundamental problem which the framers of the constitution had to solve. Roesler's commentary gives us a deep insight into their conception of this synthesis.
A theory which joined the two elements to be synthesized into a rational whole was provided to the framers by the German conservative school of monarchical constitutional law. The basic conception of the constitutional position of the Emperor which Roesler in his memoranda and his commentary expounds derives from this school, of which the most representative thinker is Friedrich Julius Stahl.18 The 'monarchical principle', as understood by this school, means that all state power, legislative, executive, and judicative, is united in the monarch. The sovereignty of the monarch is the original and highest power that encompasses and founds all public power in the state. The monarch determines all operations of the state and gives validity and authority to them. The Meiji Constitution expresses this monarchical principle in Article 4.
The monarchical principle denies the liberal theory of the division of powers. 'In Germany and Austria the system of the division of powers has not been adopted, though the unity of sovereignty is maintained, but its exercise restricted according to constitutional principles. This system is also recognized by the Japanese Constitution' (see Text of the Commentaries, p. 152). The division of powers is considered as a destruction of the fundamental unity of the state power as it reduces that unity to a mere compromise of the per se isolated powers. It is thought to lead to strife among the isolated powers in the state and finally to the tyrannizing of one over the others. The division of powers can rationally be maintained only as regards the exercise of state power, that is, in the close organization of the various functions of the state. 'Divided powers can turn out as tyrannical as undivided ones . . . remedy against tyranny cannot be found in the division of powers, but in a sound and reasonable organization of the exercise thereof.' (Text, p. 66)
Consistent with the monarchical principle, Article 5 defines the constitutional organization of the legislative power: 'The Emperor exercises the legislative power with the consent of the Imperial Diet.' The article purposely avoids the formula of the Prussian Constitution (Art. 62): 'The legislative power is exercised in common by the King and the Chambers' as this is derogatory to the supreme legislative power of the monarch. The article implies the distinction between the legislative power as such and its exercise, and by this intends to vindicate the legislative power to the monarch, but at the same time to provide an opening for popular representation in the making of the laws. The explanation of how the sovereign's right to make laws involves by its very nature the participation of the people in this lawmaking, constitutes the decisive element in the entire theory of constitutional monarchism and is the base upon which Roesler's interpretation of Article 5 rests: Laws, as they are the highest form of order in the state, must be in accord with the general conscience of right and wrong of the nation. Here we perceive the influence of the historical school of jurisprudence (Savigny) declaring that all law is rooted in the spirit of the nation (Volksgeist). The monarch, therefore, cannot lay down the law arbitrarily; he must in making the laws take into account the thought and feeling of the people, and this is done by making the content of the law dependent upon the consent of the people.
Rules of law, repugnant to national views or feelings, as being deemed detrimental, unjust or in any way objectionable, would if enforced notwithstanding, hurt the national liberty and sense of justice and well-being. Such rules, according to constitutional principles, shall not be enacted by the Sovereign Power. The practical effect of this principle is that the Emperor, in the deliberation of rules of law, is served and assisted by the national intelligence and wishes at large, instead of by His governmental advisers only. (Text, p. 69)
In justification of the sovereignty of the Emperor, the commentary presents only the historical fact of centuries-long undisputed monarchical dynastic rule. 'The Japanese monarchy is the oldest and firmest of the world and it must therefore be assumed that the monarchical government is the one that is exclusively suited to the country.'
In contrast to Roesler's purely historical justification, Itō and Inoue held an essentially mystical foundation of the imperial rule, that is the kokutai ideology. The imperial rule was to them a divine and eternal institution. It was in this sense that they understood the first article of the constitution: this was intended by them as a summary of the kokutai ideology. In the Preamble and especially in the Imperial Oath at the promulgation of the constitution—both composed by Inoue Kowashi—this ideology is fully revealed. It is viewed in the light of its full historical context, an essentially mythological ideology concerning the foundation of the socio-political order (although Inoue, who was by nature a rationalist and inclined to Confucian political concepts, stripped the official expression of the kokutai idea of nearly all concrete elements of the Shintoistic myth.) The imperial ancestors and their instructions according to which the