in the historical state of the social cultural development of men. It is the prerequisite of that universal cooperation by which the cultural development of modern society is accomplished. In this conception, freedom is internally bound up with man's destination for cultural values and saved from the individualistic distortion of the natural law proponents of the 18th century. This destination of freedom circumscribes its internal limits, the 'social limits' of freedom, as Roesler says. Those social limits, he insists, have to be made explicit by law. So the constitutional guaranty of the civil rights of freedom essentially requires the determination of these freedoms by laws which circumscribe the proper sphere of freedom. This is the meaning of the clauses 'within the limits of law and order' attached to the articles of civil rights. They determine the sphere of freedom outside which freedom loses its meaning. Roesler insists, whenever he speaks of these limits of freedom, that they have to be formulated by law, that is, by a resolution of the representative body of the people, and not by mere ordinances. It is to be noticed that the explanation of liberty and law in the Itō Commentaries is based on the same conception: 'Liberty exists solely in a community in which order prevails.' His commentary on the freedom of discussion (Art. 29) is a good example of his social interpretation of freedom.
Very characteristically, his social conception of freedom manifests itself in the commentary on freedom of property. (Text, pp. 135-8) He treats of the right of property from a broad social view we do not usually find in a juridical commentary and shows himself aware that the freedom of property is the foundation of the whole bourgeois liberal system. He joins the freedom of property to the social obligations of property. The right of property is not unlimited, the public good creates limits to it, and on this account the system of property has to be determined by law. By the Civil Code a fundamental regulation of the system of property is introduced, but the Civil Code does not lay down all necessary regulations of the system of property. From this point of view, he discusses expropriation and other restrictions of property. (Text, pp. 137-8) I do not know of any constitutionalist, treating, at that time, of the right of property, who insists as much as Roesler on the social limitations of that right.
The diet was, according to Roesler, the effective organ of upholding the liberty of the people. From the fact that the right of the Diet was limited to consenting to laws and the budget and that it had no legal power to enforce a parliamentary government, it does not follow that it had in his conception no very real political power. History has shown that the parliamentary system tended to the establishment of parliamentary government. It is not clear how far Roesler foresaw this development. In any case, he says: 'The Diet has a great share in that restrictive system' (of constitutional government). (Text, p. 153) In the draft constitution, presented to the deliberations of the Privy Council, the right of the Diet to initiate bills was not contained. It was on Roesler's recommendation that this right was finally given to the Diet.25
The two-chamber system Roesler considered essential for a sound working of parliament. He urged constantly that the House of Representatives should be elected by direct universal suffrage. (In his own draft of the constitution only those who have no independent means of living are excluded from the right of voting). He was very much opposed to indirect election and the census system which, in imitation of the Prussian system, were recommended by Gneist and his disciple Albert Mosse.26 Universal suffrage was for Roesler a necessary counterbalance against the preponderance of the acquisitive class in the bourgeois state. He finds the election system introduced by the Law of Election determined by rather restrictive principles (Text, p. 160) and hopes for its liberalization. His whole commentary on the election system is in fact a polemic against Gneist's position and shows how far he was away from being reactionary.
On the other hand, he was a real conservative in holding that besides a representative body, elected on the principle of majority, another body, representing the groups more intimately connected with the state, was necessary. His commentary on Articles 33 and 34 presents the classical argumentation of conservatism for an upper house.
The existence of an upper branch . . . acts as a bulwark for the Crown and the State with regard to the superior interests of national integrity and civilization, against the vulgar and imprudent tendencies of the great masses of the people.
The members of the House of Peers have not the quality of representatives of the people like the members of the other House. If they represent anything, they represent the state in its past achievements and permanent conditions of welfare. The essential character of an upper house, besides the distinguished individuality of its members, is conservative and of considerable stability. The members are not to oppose progress itself, but immature, precipitate actions and experimental progress.
His considerations on the composition of the House of Peers is governed by a sociological interest. He says for instance:
The members nominated on account of their wealth represent the vast interests and the peculiar importance of private property as a social and political institution; property, being one of the great columns of the State edifice and of the universal foundations of individual life, and deserving a superior consideration in all governmental aspects, is thus admitted to a proportional share of honor and weight in the supreme national council.
The independence of the judicature was guaranteed in the Meiji Constitution by the provision that its whole organization and exercise is exclusively determined by law. On the insistence of Roesler, it went beyond most of the constitutions of that time by establishing also an administrative court. Roesler was a pronounced proponent of administrative judicature. In two truly outstanding studies he had substantially contributed to a clearer understanding and more adequate theory of that institution, at that time coming into its own.27 The Law of the Administrative Court follows—except for one essential point we will speak of presently—his draft, which adopted in essence the Austrian system. His commentary on Article 61 gives a succinct summation of the arguments for an administrative judicature, separated from the ordinary law courts. (Text, pp. 215-17) It is found substantially identical in the Itō Commentaries too. He opposes however the extension of the administrative court to a universal control of the state actions. (Text, p. 216) Roesler inserts in his Commentaries a very severe criticism of the Prussian Law of 1883 concerning the general organization of administration, because it omits the general principle for determining the competency of administrative courts. (Text, p. 217) This criticism was directed at the same time against the existing Japanese Law of the Administrative Court which in this regard followed the Prussian law. In his own draft of the Japanese law he had laid down very clearly the general principle that every infringement of rights by an administrative measure could be brought before the administrative court. This article was left out from the promulgated law. It follows the proposals of his rival Albert Mosse, who limited the competency of the court to certain matters enumerated in the law.28
The unique budget legislation of the Meiji Constitution is based entirely on Roesler's proposals and testifies as no other articles to his very earnest endeavor to reconcile a basic constitutional principle with the necessity for a government not to be at the mercy of Parliament. The respective Articles, 64, 67 and 71, can be understood only from the experience of the so-called Prussian Conflict of 1862—65, on which the Commentaries recapitulate the salient point. (Text, p. 225) It was a grave disturbance of the constitutional order which threatened the very foundations of the Rechtsstaat in Prussia. For Roesler with his pronounced idea of the order of law, it was one of the most important objects of the constitution to preclude the rise of a lawless state in a conflict between government and parliament on budget matters. The Prussian Constitution provided no legal solution for such a conflict. Bismarck spoke of a lack in the constitution which the government could fill up at its own will. For Roesler, the articles of the constitution had to establish an undisputable legal base on which a solution could be found. He maintains that the consent of the Diet to the budget is indispensable for a constitutional government. (Text, p. 226) The budget right of the parliament, however, cannot be unlimited. If the Parliament could reject any provision of the budget estimate whatever, it could obstruct the whole conduct of government so that the State would be unable to fulfill its obligatory task. It could destroy the existing order of law by witholding the means of its execution. The budget, however, is—and that is the theoretical kernel of the argument—not a law by which the existing order of law as such can be altered, but