rule are not meant in these official pronouncements in a merely human sense, but rather as belonging to the eternal, cosmic order. The imperial throne is said to be coeternal with heaven and earth (tenjō mukyū).19 The Itō commentary bases the imperial rule upon this ideology.
Roesler had opposed the mythological wording of the first article.20 That he could dare to oppose the official state dogma attests to the great authority he enjoyed. In his own draft of the constitution, the first article says "Japan is an hereditary monarchy forever indivisible.' In the commentary he simply ignores the mythological interpretation of the first article. He tries to bring out its strict juridical content: since there exists in Japan an hereditary monarchy from immemorial times, the monarchical sovereignty cannot be divided and abolished.
As to the ultimate legal foundation of hereditary monarchy, Roesler seems to have held the view of enlightened traditionalism: kingship is not immediately instituted by God; an hereditary monarchy which for generations has functioned for the good of the people must, however, be considered as an institution sanctioned by God, since its abolition would mean the destruction of the fundamental public order. It is presumed that the socio-political order created by such an institution remains basically and generally sound and beneficial, even if individual kings misuse their authority. It is further presumed that no merely human intellect could invent another form of government which could conserve the good brought about by the traditional monarchical order. Therefore the monarchical institution cannot be rightfully abolished, as long, that is, as the assumed conditions exist.
In the commentary to Article 3 Roesler speaks of the 'divine nature and origin of the supreme power which is testified by the Christian as well as by every other religion and is only denied by free-thinkers,' and he derives from this the sacredness of the monarch. Here Roesler evidently gives no more than the general Christian interpretation of the foundation of the authority of governments and does not imply any immediate institution of monarchy by God. The Christian doctrine is brought in here as a gentle correction of the mythological kokutai ideology on which the Itō commentary bases the sacred rule of the Emperor. Itō and Inoue could not be quite satisfied with Roesler's explanation of the Japanese monarchy, and this, I believe, is the main reason why Roesler's commentary never was published.
Roesler's commentary contains nothing which speaks directly for or against the so-called organ theory of sovereignty which later became the object of the famous controversy in Japanese constitutional law. In reality, however, by denying the divine descent of the imperial family, it leaves no room for the theory of identity of the state and the imperial power. In fact in his German work on the constitution of the German Empire, Roesler defends the organ theory of sovereignty. 'The sovereignty of the state lies primarily with the state or the nation, but it incorporates itself everywhere in special institutions by which it comes to an orderly execution. Even in monarchies the monarch could not be sovereign if sovereignty would not dwell in the state he governs. The difference between the sovereign and mere officials is that he has the governing power by his own right, they by commission only.'21 The first Japanese proponents of the organ theory, Ichiki Kitokurō and Ariga Nagao,22 were, more or less closely, connected with Roesler, and it may well be by his influence that they perceived that sovereignty could be construed in a rational way without recourse to a mystical theory.
In the following, I wish to point out especially those considerations in his Commentaries which throw light on his sociological constitutional theory.
The first chapter of the constitution, laying down in Article 4 the fundamental monarchical principle, enumerates the several sovereign rights of the Emperor. It intends to clarify the whole extent of the supreme right and, by doing so, to prevent any doubt in regard to it or any attempt to weaken it. From the beginning of the constitutional deliberations, Roesler had advocated the explicit formulation of these sovereign rights, and the articles, as they stand, follow his draft. His commentaries go to considerable length in determining, as exactly as possible, the meaning and extension of these rights. How minutely, for instance, the conditions which justify the emergency legislation of Art. 8 are specified. (Text, pp. 79-80)
The very broad right of independent ordinances (Art. 9) is perhaps the most distinctive feature of the Constitution. Here the Meiji Constitution goes clearly beyond the Prussian Constitution. This article, on which extraordinary careful deliberations took place, is entirely the work of Roesler. The framers of the constitution were thoroughly acquainted with the existing literature on the right of ordinances, especially with the doctrine of the leading authority on this point, that is, of von Gneist. Roesler had competently expounded the theory of ordinance right and dispelled the qualms of Inoue as to whether so broadly conceived a right of ordinances would not conflict with the primary principle of constitutionalism. In his Commentaries he stresses that mere executive and police ordinances are not sufficient for an effective realization of government by the Emperor, that the government must be free to take measures for promoting the public good and that the limitation of this right would mean the supremacy of Parliament and the elimination of the independent imperial government power. (Text, p. 85) The Itō commentary follows very closely this line of reasoning by Roesler. I will explain, in the following chapter, the eminently modern meaning of this right according to Stein, Gneist and Roesler. It without doubt favored the growth and entrenchment of the bureaucracy in Japan. But one may doubt whether, without it, Japan would have advanced to the well-organized efficiency of a modern state.
Stressing the importance of the right of ordinances, Roesler is, however, much concerned with defining also the limits of this right in order to prevent any misuse of it. He thinks that the constitution does not lay down a clearly distinctive line between matters of law and matters of ordinances and that such a distinction is practically impossible. He asserts however that the rights and duties of the citizens in respect to general liberty and property have to be determined by law. The 'reservation of law' for these matters, considered to be the very essence of the liberal Rechtsstaat, is, therefore, fully admitted by him. He strongly criticizes the opinion that all matters on which no law exists may be settled by mere administrative regulations. He points out the tendency in the modern state to extend the sphere of rights, safeguarded by formal legislation, and to restrict the sphere of ordinances. He concludes that, in the last resort, the prevailing conscience of right is to be regarded as the norm for what is to be settled by law. (Text, pp. 164-5) Here, his opposition to mere legal formalism is clearly revealed; only a consideration of the subject matter and the living conscience of right can decide whether formal legislation is necessary or not.
Roesler's commentary on the constitutional position of the imperial military command is of extraordinary interest in view of the later development by which the military power became independent of the civic government. The Commentary distinguishes, following the established organization in modern states, between the military command and the civil administration of military affairs. (Text, pp. 93-8) Both powers are according to Roesler sovereign rights of the Emperor, not subject to interference by the legislative power. (Text, p. 94) Roesler shows himself fully aware of the political importance of these articles. (Text, p. 200) He holds that the exercise of the military command is exempted from the countersignature of a minister, but there is no suggestion that matters of military administration do not require it. The Itō commentary clearly states that it is necessary. In reality the countersignature in military administrative matters was not observed, a very fateful matter in which the constitution was circumvented.
The independence of the governmental power of the Emperor most strongly appears in the independent position of the ministers from Parliament. (Art. 55, pp. 194-200) The ministers are mere organs of the imperial executive power, so parliament has no decisive voice in the appointment and dismissal of the ministers, and they are individually, not collectively as a Cabinet, responsible to the Emperor alone. Roesler had already in 1881, at the time when the fundamental principle of the constitution had been fixed, pointed out that collective responsibility was hardly in accord with a monarchical executive power, since it implied the idea of a Cabinet standing on its own right. In his commentaries he says clearly and without reservation that there exists in