KANT’S RECHTSSTAAT AND ITS RECEPTION IN JAPAN

Professor Yasuo Hasebe Law School, Waseda University, Japan

I. The Crooked Timber of Humanity Isaiah Berlin often referred to Kant’s aphorism, where he said, ‘Out of the crooked timber of humanity no straight thing was ever made’1. This aphorism appears in Kant’s ‘Idea for a Universal History with a Cosmopolitan Purpose’2. Here, Kant describes the following general tendency of humanity in the course of its historical development. Human beings are, by nature, equipped with the unsocial sociability, the ‘tendency to come together in society, coupled, however, with a continual resistance which constantly threatens to break this society up’3. To solve problems that emerge from this tendency, it is necessary to construct a civil society that ensures the greatest freedom for each citizen equally: the civil society that specifies with coercive laws the limits of each citizen’s freedom so that it can co-exist with the same freedom of others. Human beings are obliged to enter this state of restriction, which establishes a just and civil condition4. However, the most intricate point in this project is that it requires a legislator, who is also a human being. ‘Out of the crooked timber of humanity no straight thing was ever made’. Therefore, the task of solving problems is actually impossible. Establishing a perfectly just society is an unrealisable ideal, which humanity should strive to get closer to, eternally5. The problematique that Kant sketches here is the same as the connecting point between a coercive legal system and morality that each citizen embraces within her conscience, which he describes in The Metaphysics of Morals6. Kant describes the transition from the state of nature to the legal condition where what is mine or yours is legally demarcated and secured. The principles over what is mine or

1 Kant, Political Writings 44 [8: 21]. ‘8: 21’ signifies ‘volume 8, page 21’ of Kant’s Gesammelte Schriften, edited by the Royal Prussian Academy of Sciences. 2 Kant, Political Writings 45-46 [8: 22]. 3 Kant, Political Writings 46-47 [8: 24]. The translation is not precisely the same as that by Reiss. 4 In Immanuel Kant, Practical Philosophy (Mary Gregor ed, Cambridge University Press 1996) 450-56 [6:306- 313] (sometimes, I do not follow Gregor’s translation precisely). The cardinal importance of these paragraphs in understanding Kant’s legal theory is stressed by Jeremy Waldron, The Dignity of Legislation (Cambridge University Press 1999) 42 ff. and Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford University Press 1999) 207 ff. 5 Kant, ‘The Metaphysics of Morals’ in his Practical Philosophy (n 6) 451-52 [6: 307]. 6 Kant, ‘The Metaphysics of Morals’ in his Practical Philosophy (n 6) 455-56 [6: 312]. 292 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

yours are already intended to be valid in the state of nature, where common coercive legal rules do not yet apply. People’s rights there are merely private rights. On the other hand, in the legal condition, the distributive justice on what is mine or yours is assured by common objective rules. When you cannot avoid living side by side with all others, you ought to leave the state of nature and proceed with them into a rightful condition, that is, a condition of distributive justice. –The ground of this postulate can be explicated analytically from the concept of right in external relations, in contrast with violence (violentia). No one is bound to refrain from encroaching on what another possesses if the other gives him no equal assurance that he will observe the same restraint towards him. No one, therefore, need not wait until he has learned by bitter experience of the other’s contrary disposition; for what should bind him to wait till he has suffered a loss before he becomes prudent, when he can quite well perceive within himself the inclination of human beings generally to lord it over as their master (not to respect the superiority of the rights of others when they feel superior to them in strength or cunning)?1

Having read thus far, one may think that Kant advocates the establishment of the legal condition on the grounds that human beings are by their nature not sufficiently rational or moral, and are inclined to fight each other regarding what is mine or yours. However, the reason why human beings should enter the legal condition is stronger than that2:

It is not experience from which we learn of the maxim of violence in human beings and of their malevolent tendency to attack one another before external legislation endowed with power appears, thus it is not some deed that makes coercion through public law necessary. On the contrary, however well-disposed and law-abiding human beings might be, it still lies a priori in the rational idea of such a condition (one that is not rightful) that before a public lawful condition is established individual human beings, peoples and states can never be secure against violence from one another, since each has its own right to do what seems right and good to it and not to be dependent upon another’s opinion about this. So, unless it wants to renounce any concepts of right, the first thing it has to resolve upon is the principle that it must leave the state of nature, in which each follows its own judgment, unite itself with all others (with which it cannot avoid interacting), subject itself to a public lawful external coercion, and so enter into a condition in which what is to be recognised as belonging to it is determined by law and it allotted to it by adequate power (not its own but an external power); that is, it ought above all else to enter a civil condition.

This is the fundamental reason why people should leave the state of nature where each one behaves as he thinks right and good and enter the legal condition. In the state of nature, as what is mine or yours is imprecise and insecure, the inclination of human beings to attack one another tends to bring about violent conflicts. However, the problem is not limited there. Even if each one sincerely seeks out the rightful principles and tries to realise good, as people’s judgements differ and conflict

1 Thomas Nagel suggests that Kant ‘clearly’ assumes that the ‘universalizability’ that the categorical imperative requires ‘will yield the same results for everyone’, although Nagel himself is sceptical about whether the categorial imperative can produce unanimously acceptable moral principles. See his Equality and Partiality (Oxford University Press 1991) 48. 2 Kant, ‘Groundwork of the Metaphysics of Morals’ in his Practical Philosophy (n 6) 58 [4: 403]. KANT’S RECHTSSTAAT AND ITS RECEPTION IN JAPAN 293 with one another, people’s safe social lives will never be secured. This is why everyone should live under a common legal system which is enforced by the state.

II. The Categorical Imperative The idea that people’s moral judgements sincerely made conflict with each other may seem inconsistent with Kant’s view on morality. Did Kant not think that in accordance with the categorical imperative, human beings can always deliver one right answer to any moral question?1 He asserts that ‘common human reason, with this compass [i.e. the categorical imperative] in hand, knows very well how to distinguish in every case that comes up what is good and what is evil’2. Is it not the case that because of that, theorists who argue that there are higher moral values that ordinary political calculations cannot override are called ‘Kantians’?3 However, Kant did not think this way. Kant formulated the categorical imperative in several ways. One of the most well-known formulations is as follows4: ‘I ought never to act except in such a way that I could also will that my maxim should become a universal law’. ‘A rule that the agent himself makes his principle on subjective ground is called his maxim’5. Different agents may make different maxims. The categorical imperative, which requires everyone to act upon a maxim ‘that can also hold as a universal law’, excludes maxims that cannot hold as universal laws as agents’ guiding principles. It is its only task. Kant raises several examples: (1) A maxim: ‘from self-love I make it my principle to shorten my life when its longer duration threatens more troubles than it promises agreeableness’ cannot become a universal law, because ‘a nature whose law it would be to destroy life itself by means of the same feeling whose destination is to impel towards the furtherance of life would contradict itself’; (2) a maxim: ‘when I believe myself to be in need of money I shall borrow money and promise to repay it, even though I know that this will never happen’ cannot become a universal law, because the universality of a law that everyone, when he believes himself to be in need, could promise whatever he pleases with the intention of not keeping it would make the promise and the end one might have in it itself impossible, since not one would believe what was promised him’; (3) a maxim that a person with a talent that by means of some cultivation could make him a human being useful for all sorts of purpose can neglect his natural gifts and be concerned with devoting his life merely to idleness cannot become a universal law because as a rational person he necessarily wills that all the capacities in him be developed; (4) a person who thinks that while others have to contend with great hardships, each should be allowed to be as happy as heaven wills or as he can make himself cannot will that such a principle is to become a universal law, because he himself may in time face great hardships and need others’ help6.

1 Waldron raises this issue in The Dignity of Legislation (n 6) 40. 2 Kant, ‘Groundwork of the Metaphysics of Morals’ in his Practical Philosophy (n 6) 57 [4: 402]. A similar formulation—‘Act only in accordance with that maxim through which you can at the same time will that it become a universal law’—is given in his Practical Philosophy (n 6) 73 [4: 421]. 3 Kant, ‘The Metaphysics of Morals’ in his Practical Philosophy (n 6) 379 [6: 225]. 4 Kant, ‘Groundwork of the Metaphysics of Morals’ in his Practical Philosophy (n 6) 74-75 [4: 422-423]. 5 See Albert Jonsen and Stephen Toulmin, The Abuse of Casuistry: A History of Moral Reasoning (University of California Press 1988) 286-87. 6 For example, while Kant denies the justifiability of killing oneself in principle, he still poses a question of whether 294 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

In other words, what the categorical imperative would do is only to exclude a certain range of maxims as guiding principles for agents on the grounds that they are internally or practically inconsistent. People can conceive of rather diverse maxims that may radically conflict with each other even when they sincerely posit their maxims in accordance with the categorical imperative. Moreover, Kant did not think that people should strictly conform to the categorical imperative in every conceivable case. When he talks about a ‘universal law’, he does not intend it to be a literally universal rule, which contemporary scholars on symbolic logic work on. He distinguishes between the philosophical foundation of moral principles—the categorical imperative—and the substantive moral considerations in solving each concrete case1. Thus, in the part on the doctrine of virtue in The Metaphysics of Morals, as he proceeds with his philosophical analysis of the elements of ethics, he often makes digressions into casuistic questions dealing with specific concrete cases2. People may give different answers to such casuistical questions, even if they agree, in principle, on foundational moral principles.

III. The Necessity of an Objective Legal Order The categorical imperative cannot yield a unique answer to every moral question, with which all the people unanimously agree. The same applies to questions of private rights in the state of nature. Although each may acquire his property in the state of nature in accordance with the laws of nature, his ownership is still provisional there because other people are likely to oppose to his claim. Kant explains the issue using the example of buying and selling a horse. In the state of nature, the effects of a contract can never be secure. You cannot be sure if the seller is the real owner of the horse. At any time, another person may appear with a claim to be the real owner and may try to recover the horse. If someone intends to acquire an external thing in this way it is in fact necessary for him to investigate whether the thing he wants to acquire does not already belong to someone else; that is to say, even if he has strictly observed the formal condition for deriving the thing from what belong to another…as long as he remains ignorant as to whether someone else (other than the seller) is the true owner of it, the most he could have acquired is only a right against a person with regard to the thing (ius rem), so that if someone comes forth who can document his previous ownership of it, nothing is left to the alleged new owner but to have legitimately enjoyed the use of it up to this moment as its possessor in good faith.—Since it is largely impossible to discover who was absolutely first (the original owner) in the series of putative owners deriving their right from each other, no trade in external things, no matter how well it may agree with the formal conditions of this kind of justice (iustitia commutativa), can guarantee a secure acquisition. Here again reason giving laws with regard to rights comes forth with a principle of distributive justice, of adopting as its guiding rule for the legitimacy of possession, not the way it would be judged

a great king can carry a poison with him so that if he were captured in a battle he could not be forced to agree to the conditions of ransom that are harmful to his state. In another example, while Kant denies that justifiability of telling a lie, he still poses a question of whether one may end his letter by a polite phrase: ‘your obedient servant’. He points out that no one is deceived by it. See Kant, ‘The Metaphysics of Morals’ in his Practical Philosophy (n 6) 546-48 and 554 [6: 422-423, 431]. 1 Kant, ‘The Metaphysics of Morals’ in his Practical Philosophy (n 6) 447 [6: 302]. 2 Kant, ‘The Metaphysics of Morals’ in his Practical Philosophy (n 6) 446-48 [6: 301-303]. KANT’S RECHTSSTAAT AND ITS RECEPTION IN JAPAN 295 in itself by the private will of each (in the state of nature), but the way it would be judged before a court in a condition brought about by the united will of all (in a civil condition)1. Only after the state establishes a legal system and ensures the immediate acquisition of movable property in public markets, can the ownership of movable property become secure and determinate2. Thus, if each exercises his own right to do what seems right and good to him, a war of all against all will prevail. If people want to lead safe social lives, they should live under a public legal order, which publicly and determinately distributes to each his rightful sphere of activities, within which he can feel safe and free to lead his life. Therefore, people should enter and obey the identical coercive legal order. In the end, the private rights of each individual are obliterated by public law issued and enforced by the public authority of the state. Both in morality and law, human beings should act in accordance with principles that can also hold as universal laws. However, in the realm of morality, this obligation is settled only subjectively because different people may posit different moral principles as what may hold as universal ones. However, in the realm of the law that is publicly proclaimed and enforced, identical legal rules are universally valid for everyone. According to Kant3: [What is legally] right is the sum of the conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom…Any action is right if it can coexist with everyone’s freedom in accordance with a universal law. Here, Kant gives his own definition of ‘legallyright ’. In order to contain the difference in people’s moral opinions within manageable limits and to sustain people’s social lives, a coercive legal order must enforce universal rules, which make the coexistence of everyone’s free actions possible. Any action that conforms to such universal rules is right. Thus, there is no intrinsic conceptual connection between moral maxims each one posits in accordance with the categorical imperative and the legal rules that enable safe and civil social activities4. In other words, there is no guarantee that each one’s moral maxim coexists with another’s. This is because there is no such guarantee that the state should construct a coercive legal order. According to Kant, ‘The human being is constrained to become a good citizen even if not a morally good human being. The problem of establishing a state, no matter how hard it may sound, is soluble even for a nation of devils (if only they are equipped with the ability of understanding (Verstand))’5. Thus, the domain of morality is to be distinguished from the domain of legality.

1 Kant, ‘The Metaphysics of Morals’ in his Practical Philosophy (n 6) 387 [6: 230]. The translation is not exactly the same as that given by Mary Gregor. 2 Hillel Steiner, ‘Kant’s Kelsenianism’ in Richard Tur and William Twining (eds) Essays on Kelsen (Clarendon Press 1986) 69. 3 Kant, ‘Towards Perpetual Peace’ in his Practical Philosophy (n 6) 335 [8: 366]. 4 Kant, ‘On the Common Saying: That may be correct in the theory, but it is of no use in practice’ in his Practical Philosophy (n 6) [8: 297]. Kant denies the right to resist the state. See Kant, ‘The Metaphysics of Morals’ in his Practical Philosophy (n 6) 505 [6: 372]. 5 As to co-ordination problems, see David Lewis, Convention: A Philosophical Study (Basil Blackwell 1969) chapter 1; Edna Ullmann-Margalit, The Emergence of Norms (Clarendon Press 1977) part III. In a co-ordination problem situation, everyone wants to subscribe to an alternative that most of the people subscribe to, by no one is sure of which alternative most of the people subscribe to. 296 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

It should be noted that the legal order that the state is required to establish is not to be unique. Innumerable legal systems are conceivable, all of which can make possible the coexistence of people’s free choices. In the contemporary world, legal systems differ from country to country. Kant’s argument does not provide guidance on which of them should be adopted. To avoid violent conflicts in the state of nature, everyone is required to enter whatever a legal order there is and obey it. If a public law is so constituted that a whole people could not possibly give its consent to it, it is unjust, but if it is only possible that a people could agree to it, it is a duty to consider the law just, even if the people is at present in such a situation or frame of mind that, if consulted about it, it would probably refuse its consent1. This is a typical co-ordination problem2. There are various alternatives, all of which can more or less successfully provide a framework for the coexistence of people’s free actions, so long as all the people subscribe to one and the same among them. Any alternative will do. Whether people consent to it does not matter, because the fact that all the people obey one identical order conforms to the interest of all the people. According to this Kantian theory, the claim that the content of positive laws can be different does not make sense under the effective rule of the state, though it might make sense in the state of nature.

IV. The Emergence of Rechtsstaat With the aid of the categorical imperative, Kant excludes from the possible range of maxims those that are self-destructive or self-contradictory. However, even after excluding them, the remaining maxims might radically conflict with each other. Therefore, people are required to enter a coercive legal order which demarcates each one’s sphere of free activities with universal laws. Under such a legal order, it becomes possible for people to objectively judge what is right and what is wrong in a given society. However, because the legislators themselves are human beings, the ideal state of civil society will never be realised. ‘Out of the crooked timber of humanity no straight thing was ever made’3. The ideal state will remain an ideal the realisation of which people have to eternally strive for. Carl Schmitt, referring to Kant, states that the goal of the modern bourgeois Rechtsstaat constitution is freedom; this constitution is instituted ‘in the first place according to the principles of the freedom of the members of a society as persons’4. Under the Kantian Rechtsstaat an equal sphere of free activities is distributed to each person. According to Kant, the classic adage ‘suum cuique tribue’5 should be understood as ‘Enter a condition in which what belongs to each can be secured

1 Kant, Political Writings (n 2) 46 [8: 23]. 2 Carl Schmitt, Constitutional Theory (Jeffrey Seitzer trans, Duke University Press 2008) 169-70. Here, Schmitt refers to the first definitive article for perpetual peace (Kant,Practical Philosophy 322 [8: 349] and ‘On the Relationship of Theory to Practice in Political Right’ (Kant, Political Writings 74 [8: 290]. In the former, Kant states that ‘A constitution [is to be] established, first on principles of thefreedom of the member of a society’. In the latter, Kant states that ‘The civil state, regarded as a lawful state, is based on the following a priori principles: (1) the freedom of every member of society as a human being; (2) the equality of each with all the others as a subject; (3) the independence of each member of a commonwealth as a citizen’. 3 The Digesta, I.1.10. 4 Kant, ‘The Metaphysics of Morals’ in his Practical Philosophy (n 6) 393 [6: 237]. 5 Michael Oakeshott, ‘On the Character of a Modern European State’ in his On Human Conduct (Clarendon Press 1975) in particular 251-52. According to Oakeshott, in a societas, people do not engage in ‘an enterprise to pursue a KANT’S RECHTSSTAAT AND ITS RECEPTION IN JAPAN 297 to him against everyone else’1. The legal order regulates people’s actions only exteriorly. Whether each one becomes happier as a result of his exercising his protected liberty is not the concern of the legal order. The legal order does not strive to make each more moral either. These are each one’s own businesses. The purpose of the legal system is to establish a social place where people embracing various, incompatible moral and world views can still lead their lives fairly and without fear. We may say that this is a typical case of what Michael Oakeshott calls societas, which he distinguishes from universitas2. In , this Kantian idea was first received and widely accepted in private law. Friedrich Karl von Savigny’s following words correspond precisely with Kant’s idea of law3. For a human being who exists in the external world, the most important elements of the environment are contacts with his equals. If free beings should in these contacts not impede each other but help each other, thrive and coexist together, it is possible only when they recognise invisible demarcating lines each other, and acquire secure and free spheres which enable each to exist and lead his life. The rules that stipulate such demarcating lines and determine such free spheres are the law… As a result of the stipulation of the law, the sphere that each volition should govern without depending on others is to be assigned to each volition4. The concept of this sphere that the law accords each is intimately related to the concept of subjective right. If we examine the legal condition that surrounds us and penetrates into every place of our actual life, there appears the power that is ascribed to each person: that is, the sphere in which his volition governs with our accord. This power, which we call a right (Recht), is the same as the authority; some call it the law (Recht) in the subjective sense5.

common substantive purpose or to promote a common interest, but they are tied together with ‘loyalty to one another, the condition of which may achieve the formality denoted by the kindred word ‘legality’ (ibidem 201). He asserts that the idea of societas ‘hovered equivocally in the background of the thought of the early proponents of the so-called Rechtsstaat’ (ibidem 245). 1 Franz Wieacker, A History of Private Law in Europe (Tony Weir trans, Clarendon Press 1995) 297. See also Georg Friedrich Puchta’s statement that: ‘Moral freedom is the freedom from the submission to the sin, legal freedom is simply the possibility of a volition’ (Georg Friedrich Puchta, Cursus der Institutionen (9th edn, Breitkopf & Härtel 1881) vol. 1, 7). 2 Friedrich Carl von Savigny, System des heutigen römischen Rechts (Scientia Verlag Aalen 1981 (originally published in 1840)) vol. 1, 331-33. While Olivier Jouanjan argues that Savigny did not think in the Kantian way; that is, in the way that since natural liberties of savage people cannot co-exist each other, therefore, external constraints by the legal order is required (his Une histoire de la pensée juridique en Allemagne (1800-1918) (PUF 2005) 169-71), his analysis seems to underestimate the transcendental character of Kant’s argument; a person who considers whether his maxim can be willed as a universal law would not be a savage living in the state of nature. The Kantian way of thinking is not inconsistent with the idea that people do not live in isolation, or that the whole system of a legal order should be grasped intuitively. The unity of individuality and community that Jouanjan ascribes to Savigny (ibidem 179) does not seem very different from the Kantian idea of unsocial sociability. It would be quite difficult to deny Kant’s influence in Savigny’s legal theory. 3 Savigny, System des heutigen römischen Rechts (n 30) vol. 1, 7. 4 Savigny, System des heutigen römischen Rechts (n 30) vol. 1, 9. 5 Savigny, System des heutigen römischen Rechts (n 30) vol. 1, 7-8. 298 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

The subjective right can exist only in light of the law, that is, the law in the objective sense. A judgement about an individual right becomes possible only when a particular fact is considered in relation to a general rule that governs individual rights. We call such general rules simply the law; some call them the law in the objective sense1. When considered more profoundly, says Savigny, a judgement about an individual right becomes possible only when it is based on the judge’s intuition on the entire system of laws (Rechtsverhältniß), which is relevant to the case, in which every part is interrelated to each other organically2. Savigny and his followers are usually called Romanicists (Romanisten), that is, scholars of Roman law. However, the system of rights and obligations they constructed did not faithfully reflect the actual Roman private law that was in effect in the classical age. Instead, the system was based on the Kantian idea of ensuring individual liberties with universal public rules, which they anachronistically projected to the classical Roman era3. Then, in the latter half of the 19th century, this private law system was borrowed by public law scholars, in particular, by Carl Friedrich von Gerber and Paul Laband4. In that era, the German public law theory attempted to establish itself as a genuine legal science by conceptualising the state as a corporation, and viewing various legal phenomena surrounding the state as delegations of legal powers, interrelationships between state organs, and creations of state will and its implementation, etc. Every legal effect in public law is, thus, to be attributed to the state as a corporation, composed by the people unified and invested with a personhood. Thus, every essential element in public law is discovered and integrated into a coherent whole composed of general concepts and principles, from which you can deduce an explanation for any actual legal institution or statute5. With this state=corporation doctrine, public law theory could construct itself as a coherent system, which private law theory had already achieved. According to Gerber6:

1 Michel Villey, Leçon d’histoire de la philosophie du droit (Dalloz 2002 (originally published in 1962)) 262-68; Michel Villey, Critiques de la pensée juridique moderne: Douze autre essais (2nd edn, Dalloz 2009 (originally published in 1976)) 142-56. Villey argues, inter alia, that (1) Kant did not have profound knowledge of Roman law; (2) the ancient Romans had neither the concept nor word corresponding to the modern subjective right, which was formed under Kant’s undeniable influence; (3) for the ancient Romans, jus applied to particular cases meant the share of wealth, obligation, or fame, which was, in the light of proportionality, to be ascribed to each who lived as a member of a social group; (4) the idea that all juridical acts, including contracts, are the creatures of expressed wills of individuals is also an invention of the Kantian philosophy; and (5) Kant decisively accomplished the rationalisation of legal studies that modern natural law theorists—Grotius, Hobbes, Locke, etc.— had tried to achieve. 2 Both of them were originally private law scholars. 3 See the prefaces to first and second editions of Paul Laband, Das Staatsrecht des deutschen Reiches (3rd edn, J.C.B. Mohr 1895) vol. 1, vi-vii and x. Laband’s methodology makes us recall Ronald Dworkin’s interpretive theory. See Ronald Dworkin, Law’s Empire (Harvard University Press 1986) in particular, chapter 7. 4 Carl Friedrich von Gerber, Grundzüge des deutschen Staatsrechts (3rd edn, Bernhard Tauchnitz 1880) 3-4. 5 ibidem 237; Cf. Michael Stolleis, Public Law in Germany, 1800-1914 (Pamela Biel trans, Berghan Books 2001) 318; Yan Thomas, Mommsen et “L’Isolierung” du droit (Boccard 1984) 32; Jouanjan, Une histoire de la pensée juridique en Allemagne (n 30) 244-50. 6 Laband says that: ‘In the substantive sense (im materiellen Sinne) a statute means a legally binding order which establishes a juridical norm…its natural role is to establish a general juridical norm which can be applied to all the cases where certain facts occur repetitively’ (Laband, Das Staatsrecht des deutschen Reiches (n 36) vol. 1, 488-89). KANT’S RECHTSSTAAT AND ITS RECEPTION IN JAPAN 299

The public law (Staatsrecht) is a science of state power and deals with such questions as: what a state can will; what organ can and should express state wills in what forms and procedures. The starting point and core of public law resides in the legal personhood (Persönlichkeit) of the state. Therefore, if concepts or languages that cannot be explained in terms of this state - corporation doctrine appear in the texts of the constitution, they should be excluded from the domain of public law and cast away as merely the expression of ‘political’, ‘philosophical’ or ‘historical’ ideas. Public law theory should be purified as a science ‘above all from non-legal but also from the consideration of ethical and political material’1. Under this Gerber - Laband doctrine, subjects’ freedom is secured against the state authorities by juridical norms (Rechtssätze) enacted as legislative statutes2. Any act by public organs interfering with subjects’ freedom should have their legal basis in some statutes deliberated upon at the parliament and sanctioned by the prince. This idea was basically inherited into the Weimar constitution, which was, as seen above, characterised as a ‘modern bourgeois Rechtsstaat constitution’ by Carl Schmitt. Thus, the Kantian idea of Rechtsstaat governed both public and private laws.

V. The Reception of The Kantian Rechtsstaat in Japan The state=corporation doctrine along with its ideological basis, the Kantian Rechtsstaat, was introduced to Japan after the promulgation of the in 1889. Its main proponent was Tatsukichi Minobe, who was a professor of public law at the University of Tokyo from 1902 to 1934. He was heavily influenced by Georg Jellinek, one of the prominent intellectual heirs of Gerber and Laband. Jellinek also stressed the necessity of methodological purity of legal studies3. Legal method should not be conflated with other disciplines like history, sociology, psychology, etc. From the legal point of view, the state cannot but be regarded as a continuous unity of people based on a territory and equipped with a personhood; in other words, a corporation. This state - corporation doctrine is a universally applicable legal concept of the state; legal science should not seek for concepts or doctrines which are applicable only to specific countries, such as Germany or France4. Jellinek stated that the organicist theory which regards the state as an organism is a mythical meta-legal idea collabourating with reactionary political movements; conflating legal studies and biology, it is almost entirely useless for public law5. According to him, the prince can be grasped only as an organ of the state, which is a unity of the people. Therefore, the monarchical principle is of purely political nature. The precise understanding of the monarchy does not entail this principle6.

1 Georg Jellinek, System der subjectiven öffentlichen Rechte (2nd edn, J.C.B. Mohr 1919) 13-18. Minobe, with two government officials, translated the first edition of this book into Japanese and published it in 1906. 2 ibidem 21-29. 3 ibidem 35-39. 4 Georg Jellinek, Allgemeine Staatslehre (3rd edn, Verlag Athenäum 1976 (first published in 1921)) 679. 5 Ernst-Wolfgang Böckenförde, State, Society and Liberty (J.A. Underwood trans, Berg 1991) 91. 6 Article 1 in the Second Title. This article was included in the Constitution on the initiative of Georg Friedrich von Zentner, a member of the ministerial conference that drafted the Constitution. See Markus Prutsch, Making Sense of Constitutional Monarchism in Post-Napoleonic and Germany (Palgrave 2013) 92-93. 300 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

What Minobe tried to exclude from public law in Japan with the help of the state=corporation doctrine was the monarchical principle, which was called the principle of imperial sovereignty in Japan, which was also imported from Germany. The principle is clearly stated in Article 4 of the Meiji constitution: ‘Emperor is the head of the Empire, combining in Himself the rights of sovereignty, and exercises them, according to the provisions of the present constitution’.

The constitutions of Southern German states enacted in 1818-1820 were based on the idea that the prince alone monopolised the state’s power in its entirety, including constituent power1. The constitution of Bavaria of 26 May 1818 clearly stated that ‘the king is the head of state. He retains all the sovereign powers and exercises them in accordance with the provisions established by him in this constitution’2. The constitution is considered as a result of a voluntary concession on the part of the prince, even where its contents are actually negotiated with his subjects3.

These constitutions opposed the idea that the people as a whole could be represented in the assembly, because to permit such representation was incompatible with the monarchical principle. Under this principle, the prince was the sole representative of the body politic, and the ‘plenitude of the state power’ was united in his hands.4 Only the exercise of legislative power was shared between the sovereign and the Landtag particularly when new laws affected the liberties or property of the subjects. A constitution was considered as a self-binding manifestation of princely power—and not the foundation of but merely a limitation on the power. Given that princely power was not derived from a constitution but rather was voluntarily limited by it, competences not clearly attributed to other state organs were generally presumed to have pertained to the prince5.

Under the imperial , though the emperor exercised legislative power with the collabouration of the imperial Diet (art. 5), he convened, closed, and adjourned the imperial Diet, and had the power to dissolve the House of Deputies (art. 7). He sanctioned laws and ordered them to be executed (art. 6) and issued orders to implement laws and maintain public order and peace (art. 9). The emperor nominated and dismissed ministers, who were individually responsible to him alone (art. 55). He also possessed supreme command over the army and navy (art. 11). The constitution meticulously reproduced the French and German models of limited monarchy6. A limited monarchy is

1 Jacky Hummel, Le constitutionnalisme allemand (1815-1918) (PUF 2002) 54. 2 Schmitt, Constitutional Theory (n 25) 104. 3 Hummel, Le constitutionnalisme allemand (n 46) 81. This doctrine is called the paesumptio pro rege. 4 The German constitutions of 1818-20 were themselves modelled on the French Charter of 1814. See Schmitt, Constitutional Theory (n 25) 104 and Hummel, Le constitutionnalisme allemand (n 46) 55 on this point. 5 Tatsukichi Minobe, Kenpô Satsuyô (Elements of Constitutional Law) (5th edn, Yuhikaku 1932) 23. Minobe sardonically pointed out that if Article 1 is literally understood and the governing power was to be grasped as the emperor’s property, then wars should be considered as the emperor’s private strife, tax as his private revenue, and the state-run railways as his private companies (ibidem 22). Here, Minobe faithfully followed Jellinek. According to Jellinek, ‘The prince is an organ of the state; he is not, in any sense whatsoever, the subject of state’s rights. Therefore, the so-called governing rights of the prince are nothing but the powers accorded to the supreme organ of the state’ (Jellinek, System der subjectiven öffentlichen Rechte (n 40) 149-50). 6 Tatsukichi Minobe, Chikujo Kenpô Seigi [Article by Article Commentary on the Meiji Constitution] (Yuhikaku 1927) iv-v and 73. See also Tatsukichi Minobe, ‘Waga Kokutai to Kokka Gainen [The Fundamental Character of Our State and the Concept of State]’ in his Minobe Tatsukichi Chosaku-shu [Essays by Tatsukichi Minobe] (Katsutoshi Takami edn, Jigaku-sha 2007) 71. KANT’S RECHTSSTAAT AND ITS RECEPTION IN JAPAN 301 one in which the prince’s powers are limited by the prince himself. In principle, it is not very different from an absolute monarchy. Against this monarchical principle, Minobe, constructing his public law theory on the state=corporation doctrine, contended that the emperor merely derived his powers from the constitution as one of the organs of the state. While Article 1 stipulates that: ‘The shall be governed by the Emperor’, this does not mean that the governing power belongs to the emperor as his property. Minobe argued that ‘we cannot attain the true nature of the state, drawing on the languages the constitution uses’1. The state=corporation doctrine is applicable to any modern state, as far as it is to be grasped from the legal point of view; there is no legal theory that is uniquely applicable to Japan. According to him, the fact that Japan has been reigned by one and the same imperial bloodline, to which all the subjects have showed unchangeable allegiance, is merely a historical and ethical characteristic of Japan, and does not describe its juristic nature2. At least until the early 1930s, Minobe tried to replace the monarchical principle with the state=corporation doctrine while promoting a British-style parliamentary democracy in Japan.3 The idea that the godly emperor originally held all state power and bound himself by enacting the constitution is an incoherent meta-legal myth4, which should be, along with the surrounding nationalist ideologies, excluded from the realm of public law5. His theory, however, was denounced as foreign, treasonable, and inconsistent with the principle of imperial sovereignty, as he faced ferocious political as well as physical attacks. The government publicly condemned his doctrine in 1935 and prohibited publication of his books, including Kenpô Satsuyô6.

1 The first Cabinet which was based on the support of a political party was organised in 1900. Since 1924 until the coup d’état by naval officers on 15 May 1932 (the 5.15 incident), politicians, who were essentially supported by the largest party in the lower house, organised Cabinets. This convention was called the ‘usual way of constitutional politics (Kensei no Jôdô)’. 2 It should be noted that this principle contained a theoretical dilemma; that is, can a sovereign prince equipped with the plenitude of state power validly limit his own power? Simply put, how is the thesis that the power of a prince is restricted by a constitution supported by the thesis that a prince holds the plenitude of power? If the supporting thesis is valid and the prince still retains the plenitude of power, his power is not restricted. On the other hand, if the power of the prince is genuinely restricted, he no longer retains the fullness of power. On this point, see Yasuo Hasebe, ‘Constitutional Borrowing: The Case of Monarchical Principle’ in Iulia Motoc et al. (eds) New Developments in Constitutional Law: Essays in Honour of András Sajó (Eleven International 2018) 182-83 [chapter 6 of this book]. On the other hand, when Georg Jellinek talked about the self-binding (Selbstbeschränkung) of the state, he just stated that the state is a corporation constituted by legal norms that, in recognising its subjects as persons, itself is endowed with a legal personhood (Jellinek, Allgemeine Staatslehre (n 43) 386; cf. Jellinek, System der subjectiven öffentlichen Rechte (n 40) 194-95). There is no logical difficulty here. 3 While in the preface to Kenpô Satsuyô (n 50) Minobe criticised Laband’s theory as devoid of social justice and interests (ibidem iv), he surely shared Laband’s passion for the purification of public law. 4 The series of events is called the ‘Tennô-Kikan-setsu (Emperor=Organ Doctrine)’ incident. Even Emperor Hirohito was reported to be in favour of Minobe’s doctrine. See Honjô Nikki (Memoire by Shigeru Honjô) (Hara-Shobô 2005) 203-11. General Honjô (1876-1945) was a military officer in attendance to Emperor Hirohito from 1932 to 1936. 5 Minobe is faithful to the Kantian idea here. Kant states that the origin of the supreme state authority should not be examined with any practical purpose; the subtle question of whether, or to what extent, the state power was legitimately established at the outset is totally pointless and threatening the state with danger for the people actually under the rule of the state. See Kant, ‘The Metaphysics of Morals’ in his Practical Philosophy (n 6) 461-62 [6: 318]. 6 Gerber states that: ‘Expressions like princely sovereignty, popular sovereignty, and national sovereignty are mere 302 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

VI. Minobe’s Legacies Renounced (Along with Kant’s Legacies) A. The Value of Sovereignty Principles As described in section V, Minobe deflated the value of sovereignty principles. While he did not deny the importance of reflecting people’s will in the direction of national politics, this was a question of politics, and not one of public law. From a legal point of view, all the state powers belong to the state=corporation. The electorate is, as is the case with the emperor, merely one of state organs. Therefore, the change from imperial to popular sovereignty as a result of the second world war was, from Monobe’s viewpoint, not a legally significant event that could be dealt with by political critics or historians1. The popular sovereignty principle was no better than the imperial one for him; both are ambiguous notions to be excluded from public law, even if they were written in the constitutional code2. He denied the necessity of changing the Meiji constitution when the General Headquarters of the occupying forces (GHQ) suggested to the Japanese government that changing the constitution was required to implement the Potsdam Declaration. He argued that the democratisation of Japan was possible even under the Meiji constitution by revising parliamentary statutes instituting and regulating various state organs3. Minobe’s attitude has not been inherited by scholars of younger generations. His successor to the post of professor of constitutional law, Toshiyoshi Miyazawa4, advocated the August Revolution thesis, which stressed the ‘revolutionary’ significance in the change of sovereignty principle when Japan accepted the Potsdam Declaration5. Miyazawa suggested that when the Japanese government accepted the Potsdam Declaration in August 1945, which demanded the implementation of popular sovereignty, the legal foundation of the Japanese constitutional system was revolutionised6, and the monarchical principle was abandoned. The basis of the Meiji Constitution itself then shifted to popular sovereignty. This fundamentally transformed constitution could function as the basis to support the legal validity of the new constitution, which could then be validated as an amendment to the transformed former constitution. This theory, called the August Revolution thesis, has become the dominant view used to explain the validity of the Constitution of Japan7. Yoshinobu Ashibe8, the

catchwords for various political movements’ (Gerber, Grundzüge des deutschen Staatsrechts (n 37) 22 n.). 1 Tatsukichi Minobe, ‘Kenpô-Kaisei-Mondai [The Issues of Revising the Constitution]’ The Asahi Shimbun newspaper (Tokyo, 20-22 October 1945). 2 Toshiyoshi Miyazawa (1899-1976) taught constitutional law at the University of Tokyo from 1925 to 1959. 3 See Chaihark Hahm and Sung Ho Kim, Making We the People: Democratic Constitutional Founding in Postwar Japan and South Korea (Cambridge University Press 2015) 130-62. 4 In his textbook on the Meiji Constitution, Kenpô Ryakusetsu [An Outline of Constitutional Law] (Iwanami Shoten 1942) 73-75), Miyazawa argued that the monarchical principle was the foundation of the state of Japan, which could not be changed even through the amendment process stipulated in the Meiji Constitution. 5 Toshiyoshi Miyazawa, ‘Nihon-Koku Kenpô Seitan no Hôri [The Legal Doctrine on the Birth of the Constitution of Japan]’ in his Kenpô no Genri [Principles of Constitutional Law] (Iwanami Shoten 1967); Cf. Yasuo Hasebe, ‘The August Revolution Thesis and the Making of the Constitution of Japan’, (1997) Rechtstheorie, Beiheft 17, 335; Hahm and Kim, Making We the People (n 60) 145-57. 6 Yoshinobu Ashibe (1923-1999) taught constitutional law at the University of Tokyo from 1952 to 1984. 7 Yoshinobu Ashibe, Kenpô [Constitutional Law] (7th edn, Iwanami-Shoten 2019) 41. 8 See Olivier Jouanjan’s thoughtful remark on the predicament any doctrine of sovereignty faces, at his Une histoire de la pensée juridique en Allemagne (n 30) 252-53. KANT’S RECHTSSTAAT AND ITS RECEPTION IN JAPAN 303 successor to Miyazawa at the University of Tokyo stated in his textbook that the state=corporation doctrine was congruent only with the political environment of the 19th century German society, where the ‘essential question’ of whether the sovereignty resided in the prince or the people was evaded1. It is quite doubtful whether this development is an advancement of legal theory. Is any coherent Staatsrechtslehre still possible when we discard the state=corporation doctrine? Jellinek (and Minobe) would deny it2. In an article first published in 1934, Miyazawa argued that Minobe’s state=corporation doctrine was a metaphysical masquerade that tried to describe the political system under the Meiji constitution as a representative democracy3. However, what Minobe actually stated was that the Diet under the Meiji constitution was an organ (representative) of the state=corporation, which is a continuous unity of people equipped with a personhood4. As a unity of people, the state is not inherently equipped with the ability to express its will. Therefore, its various organs must express the state’s will in their capacity as its representatives. Minobe would say that Miyazawa conflated a legal understanding of a state and a democratic aspiration for a representative democracy here. However, Miyazawa’s conflation (with his criticism of Minobe’s doctrine) has been repeated in not a few constitutional law textbooks under the current constitution of Japan5. B. The Bare Freedom and the Rights to Freedom In his textbook on basic rights under the constitution of Japan, Miyazawa states that the concept of ‘bare freedom’ should be distinguished from that of the ‘right to freedom’. The latter is guaranteed by the constitution and the legislature is prohibited from infringing constitutional rights. On the other hand, the ‘bare freedom’ is the range of activities left for each individual as far as the legislature does not make any legislation. There is no constitutional prohibition for the legislature to infringe on it. Miyazawa says that Georg Jellinek described the ‘bare freedom’ as ‘for the state legally irrelevant activities by subjects’6. This explanation is highly misleading. First, Jellinek himself did not make the distinction between the ‘bare freedom’ and the ‘right to freedom’. What he describes as ‘for the state legally irrelevant activities by subjects’ is freedom in general7. As examples of such activities, he cited tasting one’s own wine and going for a stroll in one’s own estate, as well as the ‘rights (Rechte)’ to choose one’s occupation and religious faith, etc., ‘which do not affect anyone else’s juridically protected sphere (die Niemandes Rechtssphäre verändern)’8. Jellinek did not consider significant the difference between constitutionally enumerated rights and

1 Toshiyoshi Miyazawa, ‘Kokumin-Daihyô no Gainen [The Concept of National Representatives]’ in his Kenpô no Genri (n 62). 2 See his Kenpô Satsuyô (n 50) 348-49. Minobe here follows Jellinek’s view. See Jellinek, System der subjectiven öffentlichen Rechte (n 40) 35. 3 See, for example, Shiro Kiyomiya, Kenpô I [Constitutional Law I] (3rd edn, Yuhikaku 1979) 200; Ashibe, Kenpô (n 64) 302-03. 4 Toshiyoshi Miyazawa, Kenpô II [Constitutional Law II] (revised edn, Yuhikaku 1971) 91. 5 Jellinek, System der subjectiven öffentlichen Rechte (n 40) 104. 6 ibidem 104. See also ibidem 49-50, where Jellinek states that: ‘actions which concern only the agent himself are legally irrelevant’. 7 ibidem 102. 8 ibidem 103-04. 304 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

freedom implicitly deduced from the inexistence of statutory constraints1. Therefore, ‘it is not correct to state that there are various rights to freedom; there is only one freedom from the legal point of view’2. Minobe, faithfully following Jellinek, stated that freedom is a ‘legally irrelevant action’ and is ‘not an assemble of various rights but one and comprehensive right’3. The distinction between the ‘bare freedom’ and the ‘right to freedom’ is Miyazawa’s creation that he erroneously attributed to Jellinek4. Second and more importantly, Miyazawa did not realise the Kantian idea behind Jellinek’s description of freedom in general. According to Jellinek, the legal order intervenes in social life in so far as individuals’ actions may affect others’ spheres of free actions5. This Kantian Rechtsstaat does not presuppose the existence of the constitutional code or constitutional review that guarantees people’s freedoms from the infringement by the legislature6. Instead, the legislature itself is assumed to be the guarantor of people’s liberties. However, if the constitution guarantees a certain range of freedoms from the legislature, the Kantian free activities are also guaranteed from legislative interference as far as they are within constitutionally protected spheres. Jellinek admitted that7. In this regard too, it makes no sense to distinguish the ‘bare freedom’ and the ‘right to freedom’. In creating this distinction, Miyazawa also renounced the legacy of Minobe, who was a faithful follower of Jellinek’s public law theory8.

1 See his Kenpô Satsuyô (n 50) 156-57. 2 The distinction between the ‘bare freedom’ and the ‘right to freedom’ appears in Antoine Favre’s Iurisprudentiae papinianeae scientia, first published in 1607. Favre states that to walk in one’s estate is just in one’s bare freedom, not his right; but to rightfully walk in another’s estate is not in one’s bare freedom unless he does it by right’ (quoted and discussed in Annabel Brett, Changes of State: Nature and the Limits of the City in Early Modern Natural Law (Princeton University Press 2011) 98-99). Obviously, this distinction does not correspond with Miyazawa’s distinction. 3 Jellinek, System der subjectiven öffentlichen Rechte (n 40) 45-46. 4 Jellinek states that: ‘statutory restrictions of rights to freedom do not accord concerned subjects’ actions legal relevance. Because the state is not interested in whether the actions are done or abstained but in whether the statutory- prescribed bounds are transgressed or not’ (ibidem 104-05). In other words, actions transgressing statutory-prescribed bounds are legally relevant (ibidem 47). On the other hand, subjective rights in public law are recognised only when the state accords individuals concrete claim rights (Anspruch) on the grounds of public interests (ibidem 52-53). 5 Jellinek states that while constitutionally enumerated rights are guaranteed from the legislature, whether legislative statutes are constitutional or not are in principle decided by the legislature itself; when and only when the constitution provides for constitutional review system, legislative statutes infringing constitutional rights may become invalid (ibidem 96-97). 6 Miyazawa himself states that the justifiability of a constitution can be judged by whether it assures the greatest happiness of the greatest number in the society (Kenpô no Genri (n 62) 412). However, it is not clear to what extent he sincerely commits himself to utilitarianism, since he also states that he agrees with the Kelsenian non-cognitivism. See his ‘Seigi-ni-Tsuite [On Justice]’, in his Hôritsu-Gaku ni okeru Gakusetsu [Doctrines in Legal Studies] (Yuhikaku 1968). 7 Katsutoshi Takami, Miyazawa Toshiyoshi no Kenpôgakushiteki-Kenkyu [A Study on Toshiyoshi Miyazawa from the Viewpoint of the History of Constitutional Thought] (Yuhikaku 2000) 151. 8 Bernard Williams, Philosophy as a Humanistic Discipline (A.W. Moore edn, Princeton University Press 2006) chapter 16. KANT’S RECHTSSTAAT AND ITS RECEPTION IN JAPAN 305

Conclusion Minobe tried to purify the public law theory of Japan of foreign factors like political, historical and metaphysical ideas. What he employed as its instrument was the state=corporation doctrine, which was a legacy of the Kantian legal theory. Unconsciously, he endeavoured to realise a Rechtsstaat that is, according to Kant, an unrealisable ideal, to which humanity should eternally strive to get closer. Minobe’s disciples regarded the state - corporation doctrine as an old-fashioned foreign device, whose utility lapsed once the popular sovereignty principle was established by the new constitution. They did not grasp the lineage of thoughts behind the public law theory that Minobe imported from Germany, including the Kantian Rechtsstaat. Nor were they concerned about whether a coherent legal doctrine can be constructed at all without the aid of the state - corporation doctrine. And this attitude is still prevalent in Japan. It is well-known that Miyazawa stressed that constitutional law scholarship should be a science, which is distinguished from theology and metaphysics1. He proclaimed that the state=corporation doctrine advocated by Minobe was not a science; his criticism at the doctrine was. However, in what sense constitutional law scholarship can be a science? Bernard Williams pointed out that ‘philosophy as a humanistic discipline’ does not advance in the same sense as does the case of natural sciences. Philosophy as a humanistic discipline presupposes certain starting points that it cannot radically criticise with coherence. We may try to justify the current state of philosophy as an ‘advancement’ in light of various basic values such as equality, freedom, or democracy. However, such justification is only possible because these basic values are already thought of as fundamental components of our theory2. Physical science may be potentially universal in their uptake and usefulness, but studies of concepts and explanations that are rooted in our more local practices, our culture, and our history are not. However, the supposition that the former is superior to the latter is simply a ‘scientistic error’3. In my view, the same applies to legal theory. When some legal concepts or doctrines are claimed as being ‘superseded’ or ‘surmounted’, we should think twice about whether the claim is warranted by sufficient reason; in particular, when the genealogy of the concepts or doctrines are forgotten and are not inquired into seriously.

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1 ibidem 187. 2 Associate Professor of Law, Sophia University, Japan 3 For the meaning of Gengo in postwar Japanese society, see also, Hirohito Suzuki, ‘Gengo and Postwar Japan’ [2017] Seidosha [in Japanese] 306 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

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