right to identify himself with the will of this elite. He probably thought that from the new nobility of the Meiji state a circle of leaders would arise on whom the throne could rely in the future. So he did not think of any provision in the constitution to safeguard the throne against the possibility of coming under the domination of irresponsible power cliques. That was however what really happened: the generation of the Genrō died out, and no circle of advisers of an equal political ability succeeded them. In the thirties the Throne fell under the domination of the ambitious and fanatical military who led Japan in the adventure of the China conquest and the debacle of the Pacific War.
In this connection a word on the Privy Council is necessary. It was a creation of Itō. Roesler feared that it would obscure the position of the ministers as the responsible advisers of the Emperor. Acquiescing to the will of Itō, he drafted the Law of the Privy Council with a view to minimizing its function. His commentary on it is singularly brief. (Text, pp. 200-2) That the head of the Privy Council should later play a political role in advising the Emperor in the selection of the prime minister was outside his intentions.
However strongly the Meiji Constitution asserts the imperial power, it limits this power constitutionally. In Roesler's opinion, the Meiji Constitution meets fully the requirement of a constitutional government inspired by the principle of personal freedom. Roesler speaks in his Commentaries frequently and unambiguously of the restrictions to the imperial power. The Itō commentary does not use the word 'restrictions', but in fact fully recognizes them. Roesler summarizes the restrictions under five categories:
1) every law, the annual budget and other important financial measures require the consent of the Diet, 2) every act of the executive power of the sovereign requires the advice and signature of a minister of state, 3) the judicature shall be exercised by independent courts of law according to law only, 4) the respective domains of the legislative, executive and judicial powers are to be constitutionally fixed as much as possible, 5) in all governmental affairs, the Diet can receive petitions, make addresses to the Emperor or representations to the government, and put questions to or demand explanations from the same. (Text, pp. 152-3)
These are indeed very substantial restrictions. Seeing these restrictions, one wonders how anybody can speak of 'sham constitutionalism' or the 'absolutism' of the Meiji Constitution.
The basic constitutional right was for Roesler the right of Parliament to consent to law and taxes. The most interesting debate in the deliberations of the Privy Council on the draft constitution was on this right of consent. There were voices which found it inappropriate to make the legislative power of the Emperor subject to the approval of the people. They wished to substitute for consent a kind of concurrence without the strict right of deciding issue. It was a memorandum of Roesler, especially drawn up for the occasion and defending the right of proper consent, which enabled Itō to overcome the resistance of the traditionalists in this point.23
Roesler's whole discussion on the rights and duties of the subjects rests on the principle that they have to be determined by law. He had, from the beginning, taken the position that the rights of the citizens should be expressly stated in the constitution, that without that the constitution would be essentially deficient. Contrarily, Inoue's first draft mentions the rights of the citizens only in the preamble of the constitution. Very significantly, doubts were raised from conservative circles in the Privy Council whether a Japanese subject, standing in a relation of absolute loyalty to the Emperor, could have a strict right against the state. Itō's and Inoue's answers in this debate show that Roesler's doctrine on this point was not lost on them: they were convinced that these rights were essential to modern freedom.24 Most Japanese constitutionalists hold that the civil right articles of the Meiji Constitution do not mean rights which belong to a person independently of the state, but only rights given by the Emperor. Furthermore they assert that the limiting clauses of these articles subject them to the arbitrary interference of the state and devoid them of practical effect.
Roesler's Commentaries reveal a very different interpretation of these articles. He calls these articles a 'declaration of rights'. (Text, p. 116) There is not the slightest suggestion that these rights are only given by the state and, therefore, in principle at least, also revocable by the state. According to Roesler's philosophy of law, they are not dependent on the state but inherent rights anteceding the state and only finally recognized in the constitution.
His commentary on civil rights is based on his conception of 'social freedom'. This freedom is not an inalienable attribute of the pure essence of man, but rooted in the historical state of the social cultural development of men. It is the prerequisite of that universal cooperation by which the cultural development of modern society is accomplished. In this conception, freedom is internally bound up with man's destination for cultural values and saved from the individualistic distortion of the natural law proponents of the 18th century. This destination of freedom circumscribes its internal limits, the 'social limits' of freedom, as Roesler says. Those social limits, he insists, have to be made explicit by law. So the constitutional guaranty of the civil rights of freedom essentially requires the determination of these freedoms by laws which circumscribe the proper sphere of freedom. This is the meaning of the clauses 'within the limits of law and order' attached to the articles of civil rights. They determine the sphere of freedom outside which freedom loses its meaning. Roesler insists, whenever he speaks of these limits of freedom, that they have to be formulated by law, that is, by a resolution of the representative body of the people, and not by mere ordinances. It is to be noticed that the explanation of liberty and law in the Itō Commentaries is based on the same conception: 'Liberty exists solely in a community in which order prevails.' His commentary on the freedom of discussion (Art. 29) is a good example of his social interpretation of freedom.
Very characteristically, his social conception of freedom manifests itself in the commentary on freedom of property. (Text, pp. 135-8) He treats of the right of property from a broad social view we do not usually find in a juridical commentary and shows himself aware that the freedom of property is the foundation of the whole bourgeois liberal system. He joins the freedom of property to the social obligations of property. The right of property is not unlimited, the public good creates limits to it, and on this account the system of property has to be determined by law. By the Civil Code a fundamental regulation of the system of property is introduced, but the Civil Code does not lay down all necessary regulations of the system of property. From this point of view, he discusses expropriation and other restrictions of property. (Text, pp. 137-8) I do not know of any constitutionalist, treating, at that time, of the right of property, who insists as much as Roesler on the social limitations of that right.
The diet was, according to Roesler, the effective organ of upholding the liberty of the people. From the fact that the right of the Diet was limited to consenting to laws and the budget and that it had no legal power to enforce a parliamentary government, it does not follow that it had in his conception no very real political power. History has shown that the parliamentary system tended to the establishment of parliamentary government. It is not clear how far Roesler foresaw this development. In any case, he says: 'The Diet has a great share in that restrictive system' (of constitutional government). (Text, p. 153) In the draft constitution, presented to the deliberations of the Privy Council, the right of the Diet to initiate bills was not contained. It was on Roesler's recommendation that this right was finally given to the Diet.25
The two-chamber system Roesler considered essential for a sound working of parliament. He urged constantly that the House of Representatives should be elected by direct universal suffrage. (In his own draft of the constitution only those who have no independent means of living are excluded from the right of voting). He was very much opposed to indirect election and the census system which, in imitation of the Prussian system, were recommended by Gneist and his disciple Albert Mosse.26 Universal suffrage was for Roesler a necessary counterbalance against the preponderance of the acquisitive class in the bourgeois state. He finds the election system introduced by the Law of Election determined by rather restrictive principles (Text, p. 160) and hopes for its liberalization. His whole commentary
