state powers which have to serve its interests.' In this Roesler, as well as von Stein, sees the fundamental problem of the liberal state. The constitutional state, which took its origin in the urge to freedom of the bourgeois, acquisitive class, guarantees this class the freedom to unlimited development of property. The propertyless class of the workers in the liberal, capitalistic society is, on the other hand, threatened by exploitation by capital and is driven to aspire to a violent change of the existing order. The liberal bourgeois state threatens to fall apart into an anarchy of class interests. Political parties, exponents of the intersts of the various classes, try through a majority in parliament to gain predominance in the state and to have the state serve their interests. Pure parliamentarism cannot, therefore, be the foundation for an equilibrium of social interests and for a harmonious ordering of the community of people.
For Roesler there is in modern capitalistic society only one way to maintain the health of cultural life and to harmonize the various social interests, and that is to intensify the general consciousness of social law and to foster the recognition of this law in all branches of cultural activity. This is the aim of Roesler's principal book on law Das soziale Verwaltungsrecht. The viewpoint from which the functioning of public administration and of administrative law in modern society is treated in this book is something new in the science of administrative law. Roesler wants to free administrative law from the limitations of police law and to introduce into it an understanding of social reality in modern capitalistic society. The cultural life of society can achieve order only through 'social administration'. By social administration is meant the collaboration of all social organizations toward the aim of achieving the common cultural ends of modern society. The law which harmonizes the activity of these various organizations is 'social administrative law', the concrete form taken by 'social law'. The state is not the exclusive nor even the primary organ of this social administration; cultural life in a free society pursues cultural aims essentially independent of the state and society has created its own instruments of social corporation for the fulfillment of these aims.
These organs of social corporation are, besides the local self-administrative bodies, the corporations formed for the satisfaction of various cultural needs of society, corporations to achieve the common good, for instance, in the areas of commerce, communication, hygiene, and education. These nonstate organizations pursuing a public good are organs of social administration, and must be recognized as 'public corporations', as self-governing bodies of public law. To these self-governing organs of free cultural life finally accedes the state as the central organ of social administration which has to integrate the activities of the self-governing cultural bodies and serve the aims of social culture.
The characteristic trait of Roesler's conception of administration is his stress on 'social self-administration' which one does not find so clearly in any other work of administrative law of that time. All public administration must be social, that is, directed toward the cultural tasks of the free community, and it must be self-administering, that is, based on the free activity of the members of the community themselves. Roesler does not develop his idea of self-administration merely abstractly. By an exposition of the whole existing German administrative law he tries to show that, in fact, the growth of social self-administration is the inner tendency of modern public administration. And he demands that this tendency be further strengthened by the legislation of the state. What he wants is not the regimentation of cultural life by the state, but its free development in accord with the order of social freedom, that is the 'social law'. The state must identify itself with the needs and impulses of modern society and fill them with the spirit of social law. The formally liberal Rechtsstaat must become the 'state of social law' in the full sense, so that by its administration it becomes the central organ of social corporation for the cultural aims of the community.
For such an orientation of the science of administrative law the leading scholars showed little understanding. At that time, the science of constitutional and administrative law in Germany was already on its way to a rigid legal formalism. By sharp attacks against leading scholars, Roesler even widened the rift which separated him from the dominating school of economics and public law. With von Gneist, the head of the national liberal school of constitutional law, he engaged in a sharp controversy on the value of the Prussian 'self-government', which was inspired by von Gneist. In general he became deeply dissatisfied with the political trends in the German Empire under Prussian hegemony. In 1877 he published a scathing critique of Bismarck's Constitution of the German Empire, Gedanken über den konstitutionellen Wert der deutschen Reichsverfassung. He calls it 'a work of a thoroughgoing dissimulation and distortion of fundamental and recognized legal concepts. It confuses especially all concepts of a monarchical and constitutional public order.' Therefore, he predicts, it will not endure. Finally Roesler entered the Catholic Church and, by this, lost his teaching chair at the University of Rostock. At about this time, however, he was invited by the Japanese Minister at Berlin, Aoki Shūzō,5 to become legal adviser to the Foreign Ministry in Tokyo. In the autumn of 1878 he left with his family for Japan.
Footnote
5 青木周蔵
CHAPTER TWO
Roesler's activities in Japan
Japan in the 1880's built up the basic institutions of a modern state. The military forces, organized after 1872 on the basis of general conscription, were made into a corps absolutely devoted to the mission of the Emperor by imbuing them with the spirit of the Military Code of 1882. The free development of a capitalistic economy was assured by the reform of the monetary system and the promotion and legal ordination of joint stock companies and banking enterprises. The educational system was adapted to the needs of a progressive society bent on acquiring equality with the Western powers, but at the same time rooted by the Rescript on Education of 1890 in the traditional morality. The state became what is termed in German, a constitutional Rechtsstaat and a Verwaltungsstaat, operated by a professional civil service. Roesler had a decisive share in building up all of these institutions except the military.
Roesler began his career in Japan in 1878 as legal adviser to the Foreign Office in regard to matters of the treaty revision and the diplomatic issues of the Korean imbroglio. By 1881 he had already advanced to the post of first legal adviser to the government, in which capacity he dealt with all questions which concerned the modernization of the legal and administrative system, and was able to extend his influence to all ministries involved in the work of reform. He enjoyed the extraordinary confidence of the government leaders, to the point, in fact, that there seems to have been hardly any important affair of state in which his advice was not requested.
Roesler was guided in his work for the Japanese state by the conviction that Japan by entering into contact and commerce with the Western world had irrevocably committed itself to becoming a modern industrial society, and that its cultural development had to be directed toward the universal culture of the emerging world community. His work in Japan was dedicated to the development of those institutions which, according to his historico-sociological views, make up the essential organization of modern society: the economic order of free capital and the constitutional order of the Rechts- und Verwaltungsstaat.
His share in the economic legislation of the Meiji era is still a largely unexplored field. He had a hand in the erection and legal regulations of the Bank of Japan. Better known is his draft of the Old Commercial Code which was finished in 1884 and became a law, after minor revisions, in 1890. Already in 1882 the part of his draft dealing with bills of exchange and promissory notes had been made law. The Stock Exchange Law of 1887 and the Bank Law of 1890 were also drafted by him. He urged the introduction of social labor regulations which were more progressive than those finally adopted in Japan's first Factory Law of 1911. His influence on the state organization is first discernible in the fateful year 1881 when the conservative line for the solution of the constitutional question was fixed.
The years when Roesler grew familiar with the Japanese political scene and
