of the monarch is the original and highest power that encompasses and founds all public power in the state. The monarch determines all operations of the state and gives validity and authority to them. The Meiji Constitution expresses this monarchical principle in Article 4.
The monarchical principle denies the liberal theory of the division of powers. 'In Germany and Austria the system of the division of powers has not been adopted, though the unity of sovereignty is maintained, but its exercise restricted according to constitutional principles. This system is also recognized by the Japanese Constitution' (see Text of the Commentaries, p. 152). The division of powers is considered as a destruction of the fundamental unity of the state power as it reduces that unity to a mere compromise of the per se isolated powers. It is thought to lead to strife among the isolated powers in the state and finally to the tyrannizing of one over the others. The division of powers can rationally be maintained only as regards the exercise of state power, that is, in the close organization of the various functions of the state. 'Divided powers can turn out as tyrannical as undivided ones . . . remedy against tyranny cannot be found in the division of powers, but in a sound and reasonable organization of the exercise thereof.' (Text, p. 66)
Consistent with the monarchical principle, Article 5 defines the constitutional organization of the legislative power: 'The Emperor exercises the legislative power with the consent of the Imperial Diet.' The article purposely avoids the formula of the Prussian Constitution (Art. 62): 'The legislative power is exercised in common by the King and the Chambers' as this is derogatory to the supreme legislative power of the monarch. The article implies the distinction between the legislative power as such and its exercise, and by this intends to vindicate the legislative power to the monarch, but at the same time to provide an opening for popular representation in the making of the laws. The explanation of how the sovereign's right to make laws involves by its very nature the participation of the people in this lawmaking, constitutes the decisive element in the entire theory of constitutional monarchism and is the base upon which Roesler's interpretation of Article 5 rests: Laws, as they are the highest form of order in the state, must be in accord with the general conscience of right and wrong of the nation. Here we perceive the influence of the historical school of jurisprudence (Savigny) declaring that all law is rooted in the spirit of the nation (Volksgeist). The monarch, therefore, cannot lay down the law arbitrarily; he must in making the laws take into account the thought and feeling of the people, and this is done by making the content of the law dependent upon the consent of the people.
Rules of law, repugnant to national views or feelings, as being deemed detrimental, unjust or in any way objectionable, would if enforced notwithstanding, hurt the national liberty and sense of justice and well-being. Such rules, according to constitutional principles, shall not be enacted by the Sovereign Power. The practical effect of this principle is that the Emperor, in the deliberation of rules of law, is served and assisted by the national intelligence and wishes at large, instead of by His governmental advisers only. (Text, p. 69)
In justification of the sovereignty of the Emperor, the commentary presents only the historical fact of centuries-long undisputed monarchical dynastic rule. 'The Japanese monarchy is the oldest and firmest of the world and it must therefore be assumed that the monarchical government is the one that is exclusively suited to the country.'
In contrast to Roesler's purely historical justification, Itō and Inoue held an essentially mystical foundation of the imperial rule, that is the kokutai ideology. The imperial rule was to them a divine and eternal institution. It was in this sense that they understood the first article of the constitution: this was intended by them as a summary of the kokutai ideology. In the Preamble and especially in the Imperial Oath at the promulgation of the constitution—both composed by Inoue Kowashi—this ideology is fully revealed. It is viewed in the light of its full historical context, an essentially mythological ideology concerning the foundation of the socio-political order (although Inoue, who was by nature a rationalist and inclined to Confucian political concepts, stripped the official expression of the kokutai idea of nearly all concrete elements of the Shintoistic myth.) The imperial ancestors and their instructions according to which the Emperors rule are not meant in these official pronouncements in a merely human sense, but rather as belonging to the eternal, cosmic order. The imperial throne is said to be coeternal with heaven and earth (tenjō mukyū).19 The Itō commentary bases the imperial rule upon this ideology.
Roesler had opposed the mythological wording of the first article.20 That he could dare to oppose the official state dogma attests to the great authority he enjoyed. In his own draft of the constitution, the first article says "Japan is an hereditary monarchy forever indivisible.' In the commentary he simply ignores the mythological interpretation of the first article. He tries to bring out its strict juridical content: since there exists in Japan an hereditary monarchy from immemorial times, the monarchical sovereignty cannot be divided and abolished.
As to the ultimate legal foundation of hereditary monarchy, Roesler seems to have held the view of enlightened traditionalism: kingship is not immediately instituted by God; an hereditary monarchy which for generations has functioned for the good of the people must, however, be considered as an institution sanctioned by God, since its abolition would mean the destruction of the fundamental public order. It is presumed that the socio-political order created by such an institution remains basically and generally sound and beneficial, even if individual kings misuse their authority. It is further presumed that no merely human intellect could invent another form of government which could conserve the good brought about by the traditional monarchical order. Therefore the monarchical institution cannot be rightfully abolished, as long, that is, as the assumed conditions exist.
In the commentary to Article 3 Roesler speaks of the 'divine nature and origin of the supreme power which is testified by the Christian as well as by every other religion and is only denied by free-thinkers,' and he derives from this the sacredness of the monarch. Here Roesler evidently gives no more than the general Christian interpretation of the foundation of the authority of governments and does not imply any immediate institution of monarchy by God. The Christian doctrine is brought in here as a gentle correction of the mythological kokutai ideology on which the Itō commentary bases the sacred rule of the Emperor. Itō and Inoue could not be quite satisfied with Roesler's explanation of the Japanese monarchy, and this, I believe, is the main reason why Roesler's commentary never was published.
Roesler's commentary contains nothing which speaks directly for or against the so-called organ theory of sovereignty which later became the object of the famous controversy in Japanese constitutional law. In reality, however, by denying the divine descent of the imperial family, it leaves no room for the theory of identity of the state and the imperial power. In fact in his German work on the constitution of the German Empire, Roesler defends the organ theory of sovereignty. 'The sovereignty of the state lies primarily with the state or the nation, but it incorporates itself everywhere in special institutions by which it comes to an orderly execution. Even in monarchies the monarch could not be sovereign if sovereignty would not dwell in the state he governs. The difference between the sovereign and mere officials is that he has the governing power by his own right, they by commission only.'21 The first Japanese proponents of the organ theory, Ichiki Kitokurō and Ariga Nagao,22 were, more or less closely, connected with Roesler, and it may well be by his influence that they perceived that sovereignty could be construed in a rational way without recourse to a mystical theory.
In the following, I wish to point out especially those considerations in his Commentaries which throw light on his sociological constitutional theory.
The first chapter of the constitution, laying down in Article 4 the fundamental monarchical principle, enumerates the several sovereign rights of the Emperor. It intends to clarify the whole extent of the supreme right and, by doing so, to prevent any doubt in regard to it or any attempt to weaken it. From the beginning of the constitutional deliberations, Roesler had advocated the explicit formulation of these sovereign rights, and the articles,
