His theory contains, however, one element which is not to be found—or at least has not been developed—in classical conservatism. This new element, which modifies essentially the conception of the state according to monarchical constitutionalism, is his insight into the new social role the state must play in modern industrial society. I have pointed out above how deeply Roesler penetrated into the problems of modern capitalistic society and how clearly he understood the connection between capitalism and liberal constitutionalism, how to his mind the organization of a social administration was the one way to maintain the order of cultural life and secure the harmonization of social interests amidst the dynamics and conflicts of industrial society. This social conception was very much in his mind as he set about preparing a draft for the Japanese constitution.
The constitution of 1889 certainly does not provide for the organization of a social state such as Roesler desired. He thought of the constitution only as a fundamental framework for a modern Japanese state. He envisaged, however, that upon this framework would be constructed a social administration, which for him was the real form of organization the modern free society must have. In his conception of the Meiji Constitution, the state and the means of power at its disposal were without a doubt designed for the development of social administration, and that for him meant essentially the self-government of a free cultural society.
The goal of social organization, which is at the base of his thinking, is not immediately evident in Roesler's commentary, but is not wholly absent either. I have drawn attention to his interpretation of Article 27 in which he says: 'The establishment and development of a true national system of property is one of the greatest and most difficult legislative problems.'
In his proposed economic legislation the tendency to check from the outset the evils consequent upon an unlimited capitalism is very pronounced. From this motive springs, for example, the call for state supervision of banks, proposed in his draft and adopted by the Japanese bank legislation of the 1880's. (In contrast to this, most Western states adhered at that time to a policy of freedom for the banks and only the experience of the world economic crisis of the 1930's prompted the establishment of state bank supervision.) Roesler had already, at an early stage, presented drafts for a social labor law, of which at this time, however, very little was realized. He was also, as I have pointed out, in favor of a universal election system as a counterbalance to the interests of the capital-possessing classes.
In a memorandum drawn up on June 4, 1887 in connection with the draft of the constitution, Roesler develops an overall plan for setting up the modern Japanese state as a monarchical socialized state.29 The basic points of this memorandum are as follows: 1) In modern Japan's development of commerce and industry the acquisitive bourgeoisie will most certainly emerge as the dominant class. The justifiable demands of this class the state will have to take into account. 2) The tendency of the acquisitive class toward ever greater profit will, if left unchecked, undermine the security of the other classes, both that of the land owners and of the propertyless. It is the most urgent task of the state to maintain impartially the welfare of the whole and a harmonious social balance by means of social legislation with an active administrative policy that works for the physical and spiritual welfare of the lower classes. The maintenance of a free peasantry, founded upon the institution of inherited property, has to be especially cared for. 3) To overcome class conflict and to maintain an ethical political attitude that places the welfare of the whole above class interests, the institution of hereditary monarchy is of inestimable value. This monarchy, traditionally considered to be the procurer of the common welfare and the custodian of the weak, and possessing the loyalty of the weak, is in a unique position to foster social harmony.
In this memorandum the idea of 'social monarchy' is clearly discernible. The real author of this concept is Lorenz von Stein. The concept found many adherents between the years 1850 and 1890 among those who sought a solution for the social question on the basis of the conception of an organic Christian state. Even the social legislation of Bismarck was inspired by this idea. Lorenz von Stein and Rudolph von Gneist had this notion of social monarchy in their minds as they imparted their teaching on monarchy to the Japanese leaders. This notion of social monarchy represented a new justification of monarchy in the face of the social problems of the 19th century: kingship—from olden times conceived as the embodiment of the idea of justice for all and protection for the weak—can and must in modern society identify itself with the idea of the social emancipation of the fourth estate. In this day the monarch has to play the role of moderator in the class conflict and to establish order and social balance. To fill this role he must enjoy in the constitution a position that is independent of parliament, inasmuch as parliament is made up of political factions representing definite class interests. The conception of a monarchical socialized state is not, therefore, a negation of the liberal constitutional idea but a complement to it. The monarch, standing above all class interest, can see to it that all members of society have an equal freedom of development, a freedom that in a class society is not sufficiently ensured by universal suffrage and the party system of parliament alone. Stein, Roesler, and Gneist represent a certain modern form of German monarchical constitutionalism based in its entirety upon an insight into present-day social problems. We may call this school of thought a kind of social constitutionalism inasmuch as in this school the fundamental constitutional concern for securing individual freedom is modified by an insight into the social conditioning of freedom and by the stress upon the social duties of the state.
An essential element of this constitutionalism, very pronounced in the teaching of these three scholars who influenced the shaping of the Meiji Constitution, is the attribution to the administrative action of the state of a creative function independent of the legislative. Modern social order requires an administration that is actively shaping social policy and that can meet on its own initiative the numerous concrete tasks of social welfare. This social role can be fulfilled only when the administration possesses a broad, independent right of ordinance, when it enjoys freedom of activity and is not bound at every step to the decision of a parliament, especially a parliament that is itself bound to party interests. It is not an absolutist conception of the state that leads these men to demand a relative independence of the administration from the legislative branch of government, but rather their insight into the new social function of administration in a modern state. Roesler in his commentary (Art. 9) makes mention of some typical examples of the modern administration's economic and social responsibilities:
The national currency, banking institutions, the organization of the different branches of industry and commerce, public roads, railways, the use of rivers for navigation and other purposes, and so on, are evidently administrative matters which must be regulated for the promotion of public welfare and development of the national civilization. (Text, p. 86)
In what follows this passage he advocates progressive legal ordination of such administrative duties. In general, we can say that according to Roesler the state provided for in the Meiji Constitution was to be a modern socially-functioning administrative state which through its own activity orders the continually new requirements of modern life, according to 'social law'.
Roesler knew, however, that such a social administrative state could function only under an expertly trained and impartial public officialdom. Like Stein and Gneist he stressed strongly the role of such an officialdom and fostered its development to a great extent. He considered as very necessary a certain kind of bureaucracy, that is to say, a system of state administration in which a class of public officials, firmly imbued with the social idea of the state and the monarchy, shape the conduct of public affairs; and he sought to provide in the Meiji Constitution for a system of government in which just such a bureaucracy would be one of the decisive factors of governmental life.
At the same time Roesler recognized the dangerous potentialities of modern state bureaucracies and their penchant for suppressing freedom. The organic counterweight against such suppression was to his mind the kind of social self-government he described in his chief work Das soziale Verwaltungsrecht, the establishment of which was the real aim of his work in Japan. The Meiji Constitution does not contain any definite provision for self-government, but, on the other hand,
