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 from its nature an administrative disposition on the financial conduct of government within the limits of the existing legal order. The existing legal order, therefore, represents the limit to the extent of the budget right of parliament. What is financially necessary for the carrying out of this order, is always valid budget (Art. 67 and 71). But expenses for any new government measure always require the consent of the Diet.
Very interesting are Roesler's remarks on the right of review of cabinet ordinances by the courts, which form the very last remarks of his Commentaries. (Text, pp. 251-2) He concedes that the courts can pronounce the incompatibility of ordinances with existing law. In a memorandum, he had pointed out that, if this right was to be denied to the courts, it would have been expressly so put in the constitution, and in his own draft of the constitution he says: 'Courts and administrative authorities have no right to examine the validity of laws and ordinances which have been promulgated in the orderly way.' His reservation against the review right of the courts springs from his conviction that juridical supremacy was not the ready remedy of legal abuses, but that the legislative and the executive had each to keep the boundaries of the constitution.
Footnotes
14 伊東已代治
15 大日本帝国憲法義解
16 憲法説明
17 国体
18 Fr, Julius Stahl, Das monarchische Princip, 1845, ders,, Die Staatslehre und die Principien des Staatsrechts, 3., 1856, especially Chap. 12: Das monarchische Princip.
19 天壌無窮
20 See Inada Masatsugu 稲田正次,Meiji kempo seiritsu-shi 明治憲法成立史 (History of the Framing of the Meiji Constitution), Tokyo, 1962, II, 248.
21 Roesler, Gedanken über den konstitutionellen Wert, p.17.
22 一木喜徳郎,有賀長雄
23 See Suzuki, 'Hermann Roesler,' Monumenta Nipponica, V, 382-384. Inada, Meiji kempō, 589.
24 See Inada, Meiji kempō, II, 629-631.
25 Ibid., pp. 257, 573, 823.
26 Ibid., pp. 1075-1081.
27 'Über Verwaltungsgerichtsbarkeit,' in Ztschr, f. das Privat- und öffentliche Recht der Gegenwart, I Bd, 1874, 'Der Osterreichische Verwaltungsgerichtschof,' ibid., IV Bd, 1877.
28 See Gyōsei saibansho gojūnen-shi 行政裁判所五十年史(Fifty Years of Administrative Court), Tokyo, 1936, pp. 13, 41, 54.
CHAPTER FOUR
Social elements in Roesler's thought
Our over-all discussion of the political theory of Roesler had made clear the extent to which this theory was indebted to the classical doctrine of German monarchical
