discovered that Roesler is inclined to freedom. He is an adversary of Prussian politics.'4 In Germany he was remembered as a violent adversary of Bismarck. An adequate understanding of what his real intentions for Japan were presupposes a knowledge of the great scholarly works he wrote in Germany before his coming to Japan. In them we can trace the background of the ideas he proposed in Japan. They reveal him not only as an adversary of Bismarck's state, but as a great scholar whose whole work is centered round the idea of 'social freedom.'
Footnotes
1 吉野作造
2 Monumenta Nipponica, 1941, IV, 53-87, 428-453; 1942, V, 347-400. The article is entitled 'Hermann Roesler und die japanische Verfassung.' This study forms the substance of Suzuki Yasuzō's 鈴木安蔵 book, Kempō seitei to Roesler 憲法制定とロエスレ (The Making of the Constitution and Roesler), Tokyo, 1942.
3 See Nobutaka Ike, The Beginnings of Political Democracy in Japan, Baltimore, 1950, Hugh Borton, Japan's Modern Century, New York, 1955, and Beckman, The Making of the Meiji Constitution, Lawrence, Kansas, 1957.
4 Shumpokō tsuitō-kai 春畝公追悼会, ed., Itō Hirobumi den 伊藤博文伝(Biography of Itō Hirobumi), II, 305.
Hermann Roesler in 1885.
PART ONE
HERMANN ROESLER
HIS
BACKGROUND
AND
THOUGHT
CHAPTER ONE
Roesler's work in Germany
Hermann Roesler was born in Lauf, near Nürnberg, in 1834, and died in Bozen (Tyrol) in 1894. Before coming to Japan he had played a fairly important role in Germany in the fields of economic science and law. He was professor at the University of Rostock from 1862 to 1878 and during these years he published an imposing series of scholarly works. His principal studies are the following: Über die Grundlehren der von Adam Smith begründeten Volkswirt-schaftstheorie (Erlangen 1868, 2. A. 1871), Das soziale Verwaltungsrecht (2 Bde, Erlangen, 1872-77), and Vorlesungen über Volkswirtschaft (Erlangen 1878). His writings prove him to be an outstanding economist and jurist. His importance lies above all in his sociological approach to law. This approach, which prompted him to make an intensive study of such fundamental economic phenomena as capital, labor, value, price and income, afforded him penetrating insights into the nature of economy and of law. His study Über die Grundlehren der von Adam Smith begründeten Volkswirtschaftstheorie treats all aspects of the classical liberal theory of economy and attempts to prove that this theory does not really give an adequate account of the fundamental structure of economy, because this theory postulates that economic laws are the product of the individual drive for profit. He maintains that economic laws depend primarily on social legal institutions, especially on the institution of property and the social changes it undergoes.
The central idea of his conception of society and economy is the idea of 'social law'. Social law, as he understands it, is the order of cooperation for the common cultural tasks in modern society. Roesler is one of the founders of the so-called 'historico-sociologico-juridical school' of German economic science. The later head of the school, Adolph Wagner, is greatly indebted to him. Roesler's notion of the conditioning of economic life through social law represented a new and incisive critique of the notion of unlimited capitalistic profit. The historical school (Roscher, Schmoller, etc.), then predominant in Germany, and the so-called 'Kathedersozialismus' fought capitalism from a moral standpoint; Roesler, on the other hand, argues on the basis of the essential nature of the economy, which he considers to be preeminently determined by the legal structure of society. Roesler does not derive his idea of social law from postulates of ethics, but from an analysis of the historical social phenomena. He had his own concept of society, closely related to Lorenz von Stein's theory. Society, in the truest sense of the word, is for Roesler modern civilized society, i. e., that sphere of free collaboration of human beings for cultural purposes that was formed on the foundations of free enterprise and emancipation from the feudal and absolute state. The essence of this society Roesler defines historically and sociologically as follows. From the beginning of modern times free enterprise worked a fundamental change in cultural life in its entirety. It provided a new basis for communication and cooperation among men, and on this basis a new society in free communication developed a new form of culture.
Modern society, nonetheless, is something more than just the product of profit interests, and its organization is something more than just the natural order of competitive interests that Adam Smith thought it was. A higher factor is at work, the foundation of which is to be found in the conscious recognition of the personal freedom of human nature. This freedom is a social freedom, i. e., it is conditioned by and oriented toward social cultural life. True human freedom is a freedom to realize human and cultural values which cannot be realized without the collaboration of men; it is a freedom, therefore, that is closely connected with the cultural tasks of the community. On this principle of social freedom is built the legal organization of modern society. This does not mean that the actual social order is already determined in all its elements by the principles of social freedom. It means, though, that this general consciousness of culture and law is becoming more and more important and cries out more and more for general recognition.
Roesler's lasting merit is his analysis of the concept and of the system of social law, an analysis never surpassed by the jurists who later dealt with the category of social law. It is, therefore, still of great importance today. Social law, as understood by Roesler, is not only the legal harmonization of capital and labor which today we call social legislation, as, for example, in the case of laws governing management and labor. His concept is far more basic: it is rather the legal organization of the entire society as it orientates the full activity of modern society, both material and spiritual, toward the complete development of a social freedom.
Roesler opposes his idea of social freedom and social law to the individualistic and naturalistic idea of natural law expounded by Locke and Rousseau, and he contests their arguments and their interpretations of natural human rights. He does not argue against the rights themselves, but believes that they find a better foundation in his own theory. Natural freedom, which men of the Enlightenment derived from the abstract essence of man, is found in their theory cut off from all its original historical and social bonds. Their freedom is the freedom of an uncultured Robinson Crusoe; it contradicts the social and cultural nature of man which develops historically, and destroys the order of social culture. The liberalistic theory of economics is an extension of this wrong ideal of freedom.
From his sociological point of view, Roesler sees the nature of the modern state: 'We can see that economic conditions influence political law and produce periodically new legal formations to such an extent that we are tempted to say that the more modern the constitution, the more it will be a product of the economy. Thus the various constitutions with their various electoral systems, above all, their universal suffrage, can be said to be exact mirrors of the social configuration of the people and must, scientifically speaking, be understood as such.' The dynamic force behind the constitutional movement of the 19th century is, in the eyes of Roesler, that of the capitalistic class trying to secure in parliament the right of decision on such matters as taxes and the state budget, hoping thereby to be able to dominate political life.
'The dominating factor in the constitution and administration of the liberal bourgeois state is capital; and money dominates society through
