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Japan: “The Cabinet executes, the Conseil d’État deliberates”

When, more than half a century later, Japanese leaders devised a constitution as a basis for the government of Japan, they encountered a situation which was in a way the opposite of the one to be found in many Euro-American polities. Real political power had laid with the Tokugawa family in Edo (present-day Tokyo) until the second half of the nineteenth century, while the Emperor had merely had a powerless symbolic function in Kyoto.24 The so-called Meiji Restoration abolished the power of the Tokugawa and at the same time nominally “restored” the position of the Emperor, who would thenceforth be the “head of the Empire, combining in Himself the rights of sovereignty,” and exercise “them according to the provisions of the present Constitution” (art. IV of the 1890 Constitution).25

However, the combination of sovereignty in the hands of the Emperor did not necessarily mean that he would be the main political operator of the Empire. The oligarchy which had just seized power from the Tokugawa government would not want to give up its position, and it deemed that entrusting too much power on the single person of the Emperor would be dangerous. Furthermore, constitutionally attributing the exercise of sovereignty to the Emperor was also a risky move for the stability of the constitution itself, for it made the Emperor highly vulnerable in case he became involved in political struggles. Again, the Emperor had to be elevated above daily politics and put into a role less prone to controversies. Regular constitutional organs would take political responsibility and thus shield the Emperor from blame.26

It is well-known that the creators of the Meiji Constitution opted to adapt German models to address these constitutional challenges.27 Yet, the question of the Privy Council shows that constitutional law adopted by the Japanese government by suggestion of German advisors was not exclusively of German extraction, but drew from a broader pool of European statecraft. Although the Meiji Constitution did not expressly recognize the “moderating power” such as the Brazilian one did, the position of the Emperor under the Constitution came quite close to it. Albeit far from identic to it, the Japanese Privy Council came much closer to a Napoleonic Council of State than to the contemporary British or Prussian Privy Councils.

But what exactly gave the impulse for the creation of a Privy Council in Japan? Scholarship on the matter is divided.28 The first instinct of observers would be to see in it a vastly modified adaptation of the British Privy Council.29 Takii Kazuhiro iWf'—M attributes the idea to Ito’s “study of European statecraft, especially under (Lorenz von) Stein.”30 Takii’s footnotes refer to Sakamoto Kazuto , who

describes the Privy Council as the result of a debate between Ito - who favored a strong institution, supported by the German constitutional advisor Hermann Roesler (1834-1894) - and another pivotal figure in the constitutional drafting process, Inoue Kowashi, who favored a weaker council.31 Ernst Lokowandt contends that it was “broadly modelled” on the Bavarian Staatsrat.32 Junko Ando’s detailed study of the German origins of the Japanese Constitution reports stark differences of opinion between the various advisors of the Japanese government, including Stein, Roesler, Rudolf von Gneist (1816-1895), and Gneist’s student Albert Mosse (1846-1925).33 According to Ando, Stein rejected the idea of a Privy Council as not compatible with a constitutional state (Verfassungsstaaf) in which responsible ministers would counsel the Emperor, and at most approve of a Privy Council as a ceremonial body.34 Instead, she writes, the Japanese Privy Council largely conformed to the suggestions of Rudolf von Gneist, which she interprets as stemming from an “anachronistic” ideal image of the English political system.35 According to Ando, the Gneistian position was reluctantly supported by Roesler, who was favorable of a limited Privy Council to deliberate on draft laws and ordinances.36

The divergences between Stein, Gneist, Roesler, Ito, and Inoue are supported by the primary sources. Gneist - a professor in Berlin - and Stein - a professor in Vienna - had advised a large number of Japanese statesmen on their trips to Europe, most notably Ito Hirobumi in 1882-1883.37 They were thus instrumental in forming the constitutional worldviews of the Meiji elites, and the trip to Vienna undertaken but many a leading Japanese statesman came to be known as the “Stein pilgrimage.”38 The concrete constitutional drafting process, however, began in 1886 and involved a small circle of Japanese drafters - apart from Ito and Inoue, Ito Miyoji 'fffME'K'in (1857-1934) and Kaneko Kentaro (1853-1942) - who would pose questions to Mosse and Roesler and deliberate about their answers, choosing what model to follow.39

Ito’s conception of the monarch as an arbiter between the powers was Steinian, but the vision of a strong Privy Council which he introduced into the drafting process was not. The Constantian idea of the Emperor as a neutral power had quickly become popular in German liberal political philosophy, including with Lorenz von Stein.40 Von Stein devoted a large part of his scholarly attention to the legal, political, and social history of France and exclaimed “that nowhere the world knows a more profound and inexhaustible source of greater truths about constitution and society.”41 Next to several works on French social movements, he also published a three-volume history of the French state and French law. Von Stein deemed that a purely democratic solution would exacerbate social tensions and that only a class-independent monarch standing above the other powers would be able to create a “kingdom of social reforms” (Konigthum der socialen Reform).*1

Stein's conception of the monarch as a neutral, mediating power transpires in the lectures he gave to his Japanese guests in Vienna. On 15 February 1887, he told Prince Komatsu-no-miya Akihito (1846-1903) that the mon

arch should “thoroughly consider the positions of both sides and decide on the possibility of determining which of them is right.” The monarch, Stein maintained, should “stand above the legislative and executive branches and oversee all affairs of the state.” On that occasion, Stein also told Prince Komatsu that the Emperor would permanently need “people personally loyal to His Majesty” to act as advisors. Prince Komatsu noted that the advisors should be united in two consultative bodies: one for military matters (junji naikyoku iOf |Ajfuj) and one for political matters (seiji naikyoku flïPjf Pi h ô ).43

But Stein’s conception of monarchy required a much less prominent monarch than Benjamin Constant’s, and he did not see the Constitution of the Year VIII as a realization of the monarch’s neutral power. When he spoke about the neutral power in his books about France, he did so to argue that it had been but halfway introduced in France with the July Monarchy installed in 1830.44 Stein’s words to Prince Komatsu about the monarch needing capable advisors did not refer to a privy council but rather to the cabinet, for the task of giving counsel to the monarch would behoove his ministers. In his conversations with Japanese statesmen, Stein consistently cautioned against a separate privy council to advise the Emperor aside the cabinet. In a lecture to the Elder Statesman (Genrô tg^s) Kaieda Nobuyoshi fflfgH (1832-1906), he warned that such a constellation would “give rise to conflicts between the ministers and the privy council.”45 To Itô Hirobumi and his entourage, he declared even more adamantly:

A council of state46 is not the office to respond to consultations by the king. The right to take up consultations from and give advice to the king shall necessarily reside with the government, i.e. with the ministry. When the ministry is staffed by its members and able to be a pillar (of the governmental structure), the Council of State will be an entirely superfluous institution. The Council of State shall only be established while it is provisorily needed and shall serve the function of memorializing in necessary matters to the monarch while the ministry is exchanged. ... This is also the result of the historical development. Therefore, when the constitutional system shall once be fixed. the Council of State shall lose fixed functions and become a merely honorary office.47

Rather, Ito’s ideas about the Privy Council stemmed from Rudolf von Gneist, which he then defended in the drafting process. Detailed records of Gneist’s conversations with Ito himself are not extant, but they seem to coincide with what Gneist told another Japanese visitor. Prince Fushimi-no-miya Sadanaru tKMÉiASi (1858-1923), three years later.48 Some other sources also give a glimpse of what Gneist told Ito. In a letter to the German minister in Japan, Karl Eisendecher (1834-1934), Gneist narrated that he had put his emphasis on “constructing a strong municipal constitution from below and installing a Council of State and Upper House from above.”49 In one point, however, Gneist differed markedly from European models with strong Councils of State: although generally favorable of including administrative judication into its responsibilities, he deemed it too early for Japan to do so.50

Prima vista, it would be natural to understand Gneist’s conception as an “anachronistic” understanding of England. If Stein concentrated his energies on the study of France, Gneist devoted much of his academic attention to English history, publishing several books on English constitutional law and constitutional history.51 Gneist is known to have created an “English utopia,” writing about the Victorian United Kingdom as if it was still governed the same way as Elizabethan England.52 Yet, neither were his recommendations to Japanese politicians an entirely “anachronistic” reverberation of Elizabethan England nor did the Japanese drafting process build on such a limited understanding of England.

For one, Gneist used a historically based comparative approach.53 Thus, he shows awareness that the Privy Council had lost much of its real importance in England, but retained it elsewhere, e.g., when he speaks of the Prussian Generaldirektorium (1723-1808) as a “collegially organized Council of State, in which the conduction of the highest affairs of state is connected with the decision about complaints by the subjects, similarly to the older English Privy Council and as in the French Conseil d’État.”54 Furthermore, when giving recommendations to Prince Fushimi. it seems that his reference is not so much the English Privy Council but the French Conseil d’État, for he defines the institution with a sentence attributed to none other than Napoleon Bonaparte (1769-1821): “The Cabinet executes; the Conseil d’État deliberates” (Naikakti wa kore o okonai; Sanjiin wa koreo gisn IÀJ fHJ 'x 5*- ÎJ‘ U ).55 It also seems that

at least Prince Fushimi understood the proposed organ to be closest to the French model, for his records constantly use the common Japanese translation for the Conseil d’État, Sanjiin

When drafting the final constitution, Ito’s Gneistian view clashed with Inoue’s and Roesler’s. Roesler’s written statement on the question did “not support the establishment a Council of State with the status of a constitutional organ,” for it would be a source of conflict with the Cabinet.56 However, Roesler conceded that Cabinet ministers might not have the time and specialized knowledge for their decisions on laws and that legislative drafts were often “rough and imperfect.”57

Hence, he still could imagine a Privy Council limited to give counsel on laws and ordinance, even if he did not deem it to be necessary.58

Accordingly, Roesler’s draft Constitution of 1887 included no mention of the Privy Council.59 However, commissioned by Ito, he also drafted an organic law for the Privy Council, dated 6 April 1888, which gave the institution far-reaching powers. These included not only the power to interpret laws, but also to decide on budget and accounting conflicts between parliament and government.60 Inoue protested against this accumulation of powers, essentially arguing against the position of the Emperor as a separated branch of government, i.e., implicitly rejecting the Constantian model:

In political matters, it is not possible to make a difference between Cabinet and Imperial House. ... Should the Emperor now decide about divergences between the government and the parliament with the further assistance of the Privy Council, this will distinguish clearly between the government and the Emperor, and will serve as a proof to distinguish their characteristic intentions. This will not be confined merely to the matters were they conflict with each other, but all actions of the government will be able to be explained as coming into existence outside of the Emperor’s pleasure.61

However, Inoue’s alternative proposal also explicitly adduced the French Conseil d’État as its model, for that institution, too, had no direct bearing with the parliament. In other words, Inoue did not see the Council of State as an instrument of the neutral power, but as a provider of services for the executive branch of government:

In sum, the Privy Council should not have this power and be put on top of the Cabinet and the Parliament. Therefore, the Privy Council's legal interpretations should be restricted to answering questions from within the executive (including about the constitution). I reckon that it should not have a connection with the Parliament (i.e., the same as the French Conseil d’État).62

Itô’s letter to Inoue, which serves as an epigraph to this chapter, was a reaction to Inoue’s criticism. Therein, he defended his conception of the monarch as an arbiter in constitutional crises and of the Privy Council as the monarch’s helperin this task, which he claimed to be of his own devising. The new organ created after this exchange of opinions was a compromise between the two positions. The especially controversial responsibility in budgeting matters was withdrawn, as was the mention to resolving conflicts with the parliament, making it close to Inoue’s proposed Conseil d’État structure. Yet, in other ways, the new organ was also palpably Itôesque.

Itô’s hand can not only be seen in the name of the organ. Rather than Sanjiin, the organ was called “Agency for the Important and Confidential” (Sumitsuin At the same time as this was the name used to translate the English and constitutionally invisible German institutions and came close in meaning to the

English term “Privy Council,” it was also a reference to East Asian tradition of statecraft. In AD 765, the Tang Empire had created an “Agency for the Important and Confidential” to coordinate and supervise the Emperor’s paperwork. Now, more than a millennium later, the agency became a constitutional organ on the same level as the Cabinet, being thus separated from the administrative branch of government.

According to the Constitution, the Emperor would be relieved of daily political business to be conducted through responsible ministers of state. While the Privy Council served for the Emperor not to potentially give away all his powers to the Cabinet, it also provided additional checks on Imperial power. First, it took away his decision-making from the intransparent workings of the Inner Palace and institutionalized it.63 Second, the fact that the Privy Council would give recommendations by majority decision could reduce the Emperor to a “state notary public.”64 The Cabinet and the Privy Council were closely intertwined, for the members of the former were always also members of the latter (but not vice versa). In a “division of labor,” however, the Privy Councillors would be tasked with “planning far-sighted schemes of statecraft and of effectuating new enactments, after a careful deliberation and calm reflection, by instituting thorough investigations into ancient and modern history, and by consulting scientific principles.”65

The provisions concerning the Privy Council were so flexible that it could accommodate for a strong Emperor, but that it could also function as an organ of its own even with an absent monarch.66 Thereby, the organ itself, rather than the Emperor personally, came close to being a fourth branch of the state, for, in the words of Ito’s commentary, it would be “the palladium of the Constitution and of the law.”67 Constitutional reality went beyond what the maxim “The Cabinet executes; the Conseil ci’État deliberates” suggested. The Cabinet would ask the Privy Council for “counsel” on new draft laws twice: first before passing them to the legislative branch - which the fathers of the Meiji Constitution did not want to be too strong - and then again at the end of the legislative process. Hence, the Privy Council could de facto decide on draft laws. In spite of their close entanglement, the “third chamber,” as it came to be known, developed a tense relationship with the Cabinet and clashed with it several times before it was dissolved after the Second World War.68

 
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