HANS KELSEN IN JAPAN

Japan’s accomplishments in the absorption of Western culture have been often characterized as practically oriented. We shall find that such comments are very one-sided.  Let us take, for example, Japanese studies of ancient Greece. We now have Japanese translations from the Greek original of Homer, Hesiod, fragments of Pre-Socratics, all the works of Plato and Aristotle, all the existing tragedies and comedies of Aeschylus, Sophocles, Euripides and Aristophanes, and the histories of Herodotus, Thucydides and Xenophon,.

In the field of jurisprudence, which has been a very practical discipline, the purely theoretical works of Hans Kelsen have been intensively studied in Japan since 1920.

Kelsen himself wrote in his “Introduction to the Japanese Translation” (1935) of Allgemeine Staatslehre (1925) as follows:

     It is my great pleasure to present this work for the Japanese intellectual world.  Japanese people have been able to arrive at the forefront of civilization within a relatively short time because they have recognized the importance of the independence and freedom of science and have afforded vigorous assistance to them, not only for the natural sciences and technology, but also for the science of law and the state.  This field does not have visible practical utilities.  Only the wisdom and tolerance of a society enables its development, independent of the interference of political powers.  I believe that my theories have found readers in Japan because of the existence of these virtues among the Japanese people.  I dare say that Japan offers the best soil for understanding my theoretical orientation expressed in this book. (As Kelsen’s original is lost, I translated this from Kiyomiya’s Japanese translation).

Unfortunately, however, the year 1935 was the time when the freedom of science, and specifically of the theory of law and state, was threatened by nationalist fanaticism in Japan.  The constitutional theorist Tatsukichi Minobe (1873-1948) was persecuted because he espoused the theory that the emperor was an organ of the state.  This year marked the beginning of the reign of nationalist and imperial myths, which eventually lead to the war with China and the United States.

I Historical Context

  §1 Unequal Treaties

  Japanese interest in Western law began in the 1850s when it first concluded treaties with Western powers.  They were unequal treaties because they contained clauses of extraterritoriality and the loss of tariff autonomy.  The Westerners at that time divided the world’s nations into three categories: “civilized,” “half-civilized” and “uncivilized.”  “Civilized” nations were ipso facto sovereign states.  “Half-civilized” nations were treated as semi-sovereign states with unequal treaties, and “un-civilized” ones became colonies.  Citizens of “civilized” nations could enjoy the privilege of being under the “civilized” legal systems wherever they went.  The institutions of extraterritoriality and consular jurisdiction were the legal manifestations of this system.  Japan’s place was among the “half-civilized” nations.

  The foremost task of the Meiji government was the revision of the unequal treaties, and the essential condition for this was the establishment of a “civilized” legal order.  Accordingly, the government invited French lawyers to Japan to help with legal education and the drafting of codes.  Japanese students were also sent to European and American law faculties and law schools.  Public and private law schools were opened in Japan and Western legal documents and textbooks were translated into Japanese.  In 1880, as a result of these efforts, a code of criminal law and a code of criminal procedures based on the French models were promulgated.

  In 1881, the Japanese government made a decision to adopt a constitution based on the German (Prussian) model, which was to come into effect nine years later.  Following this decision, German advisors in the field of constitutional law and in many other legal fields were invited to Japan.  On the other hand, Japanese students were sent to German law faculties.  As soon as they returned to Japan, they were employed as high officials or professors.  The chief reason for changing from the French to the German model was that French civilization seemed to the Meiji leaders as too liberal, democratic and individualistic.  They saw imperial Germany under Bismarck with its “moderate” constitutionalism as the best model for Japan.

  The Japanese students in public law intensively studied not only textbooks and commentaries on positive constitutions but also Staatslehre.  As early as 1872, for instance, Allgemeines Staatsrecht by Johann Caspar Bluntschli (1808-1881) was translated into Japanese.  Hermann Roesler (1834-1894), the former professor of Rostock, was invited as legal advisor.  Hirobumi Ito (1841-1909), who played the leading role in drafting the Constitution of the Empire of Japan of 1889 was advised by Rudolf von Gneist (1816-1895) in Berlin and Lorenz von Stein (1815-1890) in Vienna.  The Constitution of the Empire of Japan gave country a German-style parliamentary system, which did not necessarily entail parliamentary government.

  Staatslehre was a specifically German phenomenon, whose dogmatic methodology had an affinity with dogmatic theology.  Ideologically, although it contained wide range of spectrums, its general tendency was the rejection of the idea of French Revolution and the glorification of the state.  Japanese students diligently studied its dogmas as authoritative doctrines. This was something new because in the Oriental tradition there had never been either dogmatic theology or dogmatic Staatslehre.  Those students felt that they were entering the heavenly gate which led to the mystery of the state.

§2 Exoteric and Esoteric Doctrines of the State

There were two objectives for introducing Western legal systems in Meiji Japan:  revision of the unequal treaties and the modernization of Japanese political and social systems.  The latter can be divided into two main categories:  “Enrichment of the nation and strengthening of the military power” on the one hand and liberalization and democratization on the other.  Whereas there was an almost universal consensus for the treaty-revision, reforms toward modernization were more or less controversial.

  Jacob Burckhardt’s dictum “Rationalism for the few and magic for the many” is the secret of any regime.  Meiji Japan would not be an exception.  The leaders of the Meiji government had been the bearers of the banner “Revere the Emperor and expel the barbarians” until the collapse of the Shogunate.  After they came to power, they made the emperor worship into a kind of national religion.  It was the exoteric doctrine of the regime, which was referred to as the Kokutai (the essence of the nation), while rationalism and realism prevailed as esoteric culture among intellectual and political elites. 

As for the slogan of “expel the barbarians,” the new government reversed its position and set out to Westernize the nation almost wholesale.  Such a conversion made many former supporters of the Meiji Restoration feel betrayed.  Their resentment continued to exist as an undercurrent for a long time.  As far as the international and national situation was calm, the exoteric and esoteric doctrines could co-exist peacefully.  Under the crisis, however, the former would overshadow the latter.  In the period 1935-1945, the slogan “Revere the Emperor and expel the barbarians” revived with some modifications.

§3 Staatslehre in Japan

  Until around 1890, Japan’s academic world was in the “translation period.”  Foreign teachers lectured in foreign languages at Japan’s public and private schools.  Japan’s academic independence started with the establishment of the Constitution of the Empire of Japan.

In February 1889, just before its promulgation, Yatsuka Hozumi (1860-1912) returned after five years’ study in Germany, to be the first professor of constitutional law at the Imperial University (it was called the Tokyo Imperial University after the second one was established in Kyoto in 1897).  Before he left for Germany in 1884, Ito and Kowashi Inoue (1844-1895), who wrote the first draft of the constitution, recommended Hozumi to study under Gneist in Berlin and Hermann von Schultze-Gävernitz (1824-1888) in Heidelberg, but he preferred to visit Strasbourg (German city at that time) to study under Paul Laband (1838-1919), the representative figure of legal positivism.

As the professor of the most authoritative university, he espoused a curious doctrine in which Kokutai ideology and Laband’s positivism were combined.  He rejected the doctrine that the emperor was an organ of the state, probably because of its sacrilegious connotation (Greek word organon means “tool,” and the Japanese word kikan has a corresponding nuance). 

In Staatslehre, he distinguished the “form of state” from the “form of government.”  The “form of state” was, he taught, the distinction with respect to sovereignty, and there were two forms of state: monarchical and democratic.  The “form of government” was the distinction as to how the sovereign power is executed, and there were two government forms: absolute and limited (constitutional).  The Japanese regime under the Constitution of the Empire of Japan was, in his view, the combination of a monarchical state form and a limited form of government.　According to his opinion, the former is incomparably more important than the latter, because it represents the “essence of the state (kokutai).”  The latter can be changed, but the former shall be eternal, as far as the identity of the state continues to exist.

§4 Tatsukichi Minobe and the Emperor-Organ Theory

Tatsukichi Minobe, thirteen years younger than Hozumi, was least impressed by Hozumi’s teachings since his student years.  He avoided becoming Hozumi’s disciple and, after having studied in Europe (mainly in Germany), taught administrative law at the Tokyo Imperial University, although his main interest was in constitutional law.  In 1911, the Ministry of Education invited him to lecture for high school teachers.  Minobe taught the audience as follows:

    The state is an invisible legal person who wills and acts through human organs.  In Japan, the emperor is its highest organ.  The subject of sovereignty in any state is the legal person “state.”  There can be, therefore, no distinction of “form of state” with a view to who is the sovereign.  Only possible distinction is “form of government” according to how the organs are organized.  Such doctrines (the doctrines of state sovereignty and of the monarch as an organ of the state) were the communis opinio in German Staatslehre.

  Although the Constitution enumerates the powers of the emperor, he shall not exercise them out of his own initiative.  It is a good Japanese tradition that the emperor has been above politics and has never invited enmity of the people by wielding power himself.  The democratically elected Lower House is more important than the Upper House (House of Peers), although they are legally equal according to the Constitution.  The political future of Japan will be a party-government system based on the Lower House.

These arguments (the emperor-organ theory and the “emperor-puppet theory”) precipitated outrage among the emperor-worshippers, but most intellectuals accepted it as a common sense opinion.  In the education for children and for soldiers, however, Minobe’s teachings were never allowed thereafter.  While Hozumi’s dogma was the exoteric doctrine, Minobe’s theory was the esoteric doctrine of the state.  The authority Minobe cited was Heidelberg professor Georg Jellinek (1851-1911).  Minobe was sometimes referred to as “Japan’s Jellinek.” 

The period 1910-1930 was a relatively liberal period in the prewar Japan.  Political developments seemed to proceed as Minobe had predicted.  After the death of the charismatic Meiji emperor in 1912, Taisho emperor who succeeded him was regarded as week-willed.  Consequently, the power of political parties continued to grow and the party system of government was established between 1924 and 1932.  Male suffrage was realized in 1925.

After the death of Hozumi in 1912, Minobe was regarded as the highest authority in constitutional law (he taught constitutional law at his faculty from 1919 to 1934) and became a symbolic figure of Japanese constitutionalism and rational science of constitutional law.  His textbooks and commentaries were the most authoritative for scholars as well as for law students.

II Hans Kelsen and Prewar Jurisprudence in Japan

§1 The First Phase 

When the young Hans Kelsen published his first masterpiece Hauptprobleme der Staatsrechtslehre in 1911, some copies were imported into Japan, but it was in 1920 that the name of Hans Kelsen first appeared in an academic journal.  Tokuji Tamura (1886-1958), whose field was public administration, translated its twentieth Chapter (Die Persönlichkeit der Staatsorgane).  Apparently, his motive for translating it had something to do with the controversies concerning the emperor-organ theory.  He confessed that he was ignorant of the identity of the author.  He never returned to Kelsen-studies thereafter.

  In October of the same year, Muneo Nakamura (1894-1975), a specialist in the law of civil procedure, met Kelsen in Vienna.  He at first studied in Berne but was interested in the Austrian Zivilprozessordnung and came to Vienna for studying under Professor Hans Sperl (1861-1959).  The university official found a problem in his double registration (Berne and Vienna) and advised him to meet Dean Kelsen, who was very friendly and allowed him to visit him frequently.

  Nakamura recalled that Kelsen had commented to him that Giorgio Del Vecchio (1878-1970) and Eugen Ehrlich (1862-1922) were unimportant.  When Nakamura referred to Roscoe Pound (1870-1964), Kelsen doubted whether there was a philosophy of law in America (Twenty-five years later, exiled and helpless Kelsen wrote an article “Roscoe Pound’s Outstanding Contributions to American Jurisprudence” (1945)).  He showed, however, some interest in François Gény (1861-1959).  Because of the difference of the field, Nakamura did not step into Kelsen-studies.

  The first more or less intensive study of Kelsen’s theory in Japan came with the publication of the article “Kelsen and the Methodology of the Sociology of Law” (1922) by Kameji Kimura (1896-1972), whose field was criminal law.  He pointed out that Kelsen did not deny the possibility of the sociology of law, which was the causal explanation of empirical facts related to legal phenomena.  In the end, however, he criticized Kelsen on the grounds that forms and contents could not be divided and that jurisprudence could not be a pure formal discipline.  Probably he failed to notice Kelsen’s division of general theory of law and the science of particular legal systems (“formalism” is an attribute of only the former).  Kelsen had said:

    I do not wish to talk with those who cannot understand that general legal concepts which are applicable to any legal order must be purely formal. (“Über Staatsunrecht, ” Zeitschrift für Privat- und öffentliche Recht der Gegenwart, 40.Bd., 1913, p.3)

  Kimura continued his studies of Kelsen for more than ten years, but eventually abandoned them, commenting that his science of positive law was too narrowly focused.  Kelsen asserted that science of law must stop at enumerating possible interpretations within the “frame” and that choosing one possibility among them is a task of “politics” and not science.  Kimura contended that “true science of law” must teach the best interpretation by introducing a teleological point of view. (“Kelsen’s Theory of Legal Interpretation” (1934))

  In January 1923, a young Japanese sociologist, Uichi Iwasaki (1891-1960), visited the University of Vienna.  He asked the porters who were the famous sociologists there.  One named Othmar Spann (1878-1950), another Kelsen and another Max Adler (1873-1937).  He vaguely recalled the name of Kelsen, because a Japanese sociologist once referred to him.  A porter recommended him to visit a café where Kelsen and Adler met “almost every evening.”   Iwasaki visited there and found them chatting with the wife of a professor of medicine.  Iwasaki spoke English with which the both professors were not acquainted.  Fortunately the lady played the role of interpreter.  Answering the question as to who were the most important theorists in the contemporary German speaking world, Kelsen pointed to the names of Sigmund Freud (1856-1939), Edmund Husserl (1859-1938), Ernst Cassirer (1874-1945), Max Weber (1864-1920), and “my friend and theoretical rival: Herr Adler.”

§2 “The Kelsen Students”

Above-quoted scholars were not specialists in public law or the philosophy of law, and their interests in Kelsen were casual.  Systematic and intensive studies by specialists started about 1925.

Several years thereafter, however, many books and articles on Kelsen and translations of his books appeared, as the lists by Rudolf A.Métall (1903-1975) show, although their academic quality was sometimes dubious.  Minobe said in his article in 1930:

  Many young scholars seem to sympathize with this school.  I shall enumerate only the works I have read.  The Legal Theory of the State by Prof. Kiyoshi Asai (1895-1979) (Keio Univ.) develops a constitutional theory on a Kelsenian basis.  The doctor thesis On the International Order by Prof. Akira Osawa (1889-1967) (Kyushu Imperial Univ.) tried to establish new principles of international law on the theoretical basis of Kelsen and Verdroß (1890-1980).  Among recent articles, Prof. Hikomatsu Kamikawa’s (1889-1988) “The League of Nations and Establishment of World Law” and Koya Oka’s “On the Status of Individuals in International Law” are more or less under Kelsenian influence.  Prof. Kisaburo Yokota’s article “Logical Relationship between National and International Law” almost wholly follows Kelsenian theory.  These are the only ones that I came across.  There seem to be many others which belong to this school, however.”

Many Japanese scholars subsequently visited Vienna. For instance,  constitutional theorist Shiro Kiyomiya (1898-1989) attended Kelsen’s lecture in the summer semester of 1926, and Satoru Kuroda (1900-1990), whose field was also constitutional law, in the summer semester of 1928. International lawyer Kisaburo Yokota (1896-1993) visited Vienna in the summer of 1927 in vain, because Kelsen was on vacation.  Legal philosopher Tomoo Otaka (1899-1956), during his stay in Europe (1928-1932), studied under Kelsen in Vienna. Among other important names of “Kelsen-students” (those who studied Kelsen’s works more or less intensively, but not necessarily agreed with them) at this time were constitutional theorist Toshiyoshi Miyazawa (1899-1976), political scientist Teiji Yabe (1902-1967) and administrative law theorist Yoshimoto Yanase (1905-1985). One may notice that the above scholars all belonged to the same generation.  They grew up in a relatively liberal era and studied the theories and ideas which were cultivated in the intellectual climate of Weimar Germany.  They felt some spiritual affinity with Kelsen’s rational and liberal ideas.

§3 Minobe’s Critique

Before going into the theories of “Kelsen students,” we must have a look at Minobe’s furious critique of Kelsen’s theories, because, for one thing, it is a typical repercussion of the preceding generation.  Minobe started his article in 1930 with these words:

  It was more than ten years ago when I read his famous Hauptprobleme somewhat intensively.  Though I learned something from the book, I could not agree with its basic tenets.  Recently I scanned through his works on Souveränität and Staatsbegriff and felt reassured that I disagreed with their fundamental principles. Isn’t it logical that, if one rejects the fundamental presuppositions of an argument, one cannot accept the consequences deduced from them?  The reading made me feel antipathy to all of his theses, and enhanced my belief that such a viewpoint is pernicious to jurisprudence….I deeply regret that such theories found adherents among young scholars in this country…I write this article because I cannot overlook such a harmful tendency becomes fashionable among the scholars of the theory of state, public law and international law.

He attacked Kelsen’s dualism of “is” and “ought,” legal positivism, concept of law,  identification of law and state, separation of legal will from psychological will, and the theory of Grundnorm.  He defended Jellinek’s theories that the state has normative and factual aspects at the same time (Zweiseitentheorie), of multi-disciplinary Staatslehre, of auto-obligation of the state and of the norm-forming power of the factual against Kelsen’s criticism.  In 1932, he published another article which criticized the monist construction of national and international law by Kelsen and Verdroß.

I have five comments to make on Minobe’s critique of Kelsen. 

First, from the Kelsenian point of view, it is easy to point out Minobe’s philosophical naïveté.  He had no idea of epistemological and ontological problems concerning the normative phenomena including the legal person.  He explains away everything with a vague and mysterious concept “social mind.”  He teaches that the essence of law is social mind, which is not “ought”, but “is.”  Science of law is an empirical science just as sociology or psychology.  The state is a unity of social mind.  It is the social mind which makes the will of the organ to be the will of the legal person.  The following passage will show his naïveté vividly:

When a man becomes 25 years old, he will be given the suffrage.  The provision on the right to vote is by no means a prescription of a Sollen but a Können, just as the law of nature, ‘when iron is heated, it will expand.’

Second, Kelsen himself is responsible for some of Minobe’s misunderstandings, because Kelsen’s own presentation of his position is so misleading.　When I commented above on Kimura’s criticism of Kelsen’s “formalism,” I quoted passages which explained that what he was arguing was a general theory of law and not the science of particular positive legal orders.  When Kelsen emphasizes the formal character of Rechtswissenschaft in Hauptprobleme, (pp.92-94), how can the ordinary reader understand this presupposition?  Kelsen clarified his point at long length in an article published two years later.

Kelsen emphasizes the difference between legal and psychological will.  Ordinary readers will suppose “intention” or “malice” as typical wills in law, and wonder why they cannot be psychological states of mind.  It is in Hauptprobleme (p.138) that Kelsen answered this question:

  Don’t misunderstand me thinking that I am espousing complete rejection of the psychological element from criminal law theories.  It is the postulate of refined legal consciousness that only those who understand and will what they are doing shall be punished.

If he had written these remarks at first, many readers would have been saved from misunderstandings.  Not only Kimura or Minobe, but many readers were misled and had supposed that Kelsen was preaching incredibly irrational doctrines.

Third, despite his naïveté and misunderstandings, Minobe instinctively sensed some dangerous elements in Kelsen’s attempt at the deconstruction of Rechtsdogmatik and Staatslehre.  From the Kelsenian point of view, they are pseudo-sciences and myths which claim to be cognitive but are in reality value judgments.  Moreover, they are full of anthropomorphical and substantiating analogies which misled cognition.  These myths are playing important roles for preservation of establishments. 

Fourth, jurisprudence cannot abandon its practical influence.  “Legal theories” taught at universities are for the most part practical guidelines for present and future government officials, judges and lawyers.  For the practice, one must take into account every relevant fact and information.  “Lawyers shall not restrict their scope to the narrow legal world.  They must see the world and society at large” was the slogan of the time.  The “lawyers” included law professors.      

Fifth, and most importantly, Kelsen’s value relativism was not acceptable to most of the lawyers who are eager to realize justice on earth.

Minobe was an enlightened, liberal and rational theorist of law within the framework of the prewar Japanese regime.  He could not, however, tolerate the deconstruction of the system which he presupposed.

§4 Kotaro Tanaka’s Critique

Another criticism on Kelsenianism came from a Thomist legal philosopher Kotaro Tanaka (1890-1974). 

In his younger days, he was a follower of Kanzo Uchimura (1861-1930), an individualistic Christian thinker who denied any intervening authority between God and man.  His movement was called “non-church” movement. Tanaka had converted to Catholicism in 1926.  The nature of this conversion seems to be somewhat obscure.  I suspect his relationship with Uchimura started with some casual occasion without true agreement.  As his early article on Otto von Gierke (1841-1921) shows, he must have been a collectivist (or at least non-individualist) from the beginning.

In his article “Contemporary Legal Ideals” (1929), he overviewed the development of European legal philosophy since 19^th century from the viewpoint of Neo-Thomist natural law doctrine.  He begins this article by quoting the dictum of Fritz van Calker (1864-1957) that lawyers without Weltanschuung is a caricature.  Tanaka refers to Kelsen’s pure theory of law as its typical example.  In his view, Kelsen’s theory had been criticized harshly and was very unpopular in Europe.  Its popularity in some circles in Japan was indicative of the shallow intellectual climate, in which people were chasing always the novel, he said. 

He depicted the development of legal ideas in Europe as follows:

In the early nineteenth century, natural law doctrine was criticized for its individualist bias.  Instead, tendencies towards anti-idealist schools became prevalent and led eventually to legal positivism.  The rise of Neo-Kantianism was a symptom of the reaction against the anti-idealist tendencies, but it lacked the normative contents to fill the ideals.  Stammler’s ideals are empty.  Radbruch is a relativist.  Kelsen’s theory has nothing to do with Weltanschuung.　

Thus he urged to return to the natural law tradition of the Middle Ages. 　

Tanaka was watching Kelsen’s writings carefully.  He suspected that there must be some Weltanschauliche presuppositions behind his allegedly value-neutral scientism.  A great revelation for him was Kritik der neukantischen Rechtsphilosophie (1921) by Erich Kaufmann (1880-1972).  The author pointed out that Kelsen’s Kantianism eliminated all the idealistic, metaphysical and ethical elements in Kantian philosophy and that his philosophy was nothing but the crudest positivism.

When Tanaka read Kelsen’s books Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus (1928) and Vom Wesen und Wert der Demokratie (2nd ed., 1929), he found that Kaufmann’s observation was too true.  In 1934, he published an article which definitively criticized Kelsen’s Weltanschauung (or what he understood as such).

He first refers to the recent controversy between Kimura and Yokota concerning Kelsen’s attitude toward natural law.  According to the former, Kelsen denied the existence of natural law outright, whereas the latter asserted that Kelsen only denied the coexistence of natural and positive law in one system.  Tanaka points out that such a question cannot be answered within the framework of logical construction, but only with reference to his philosophy and Weltanschauung.

Tanaka analyzes Kelsen’s arguments concerning the relationship between natural law and positive law.  His overall judgment is that what Kelsen depicts as natural law doctrine is a biased one and his arguments are not applicable to the Thomist concept of natural law (By the way, Kelsen analyzed the natural law theory of Thomas Aquinas (1225-1274) in his early work Die Staatslehre des Dante Alighieri (1905)).

Tanaka says that, as every positive law is a product of human nature, most of its norms conform to natural law.  Kelsen’s assertion that natural and positive law cannot coexist is false.  As norms of natural law are applied to human beings as agents of free will, they cannot be realized by “inner necessity” as Kelsen asserts.  Kelsen’s characterization of natural law as anarchical order is false, because natural law demands coercion against those who commit crimes because of their free will.  Kelsen’s assertion that natural law doctrines always result in conservative politics because they tend to justify positive law is a very shallow observation.  Good parts of the positive law must be justified, bad parts must be criticized.  Does Kelsen identify being conservative with being evil as some Marxists claim?

In conclusion, Tanaka characterizes Kelsen’s Weltanschauung as sophistic relativism and cynicism of Pilate, pointing to his preference of peace to justice.  Kimura is right and Yokota is wrong, because such a view of the world cannot believe the in existence of any natural law.  One of the roots of the anarchy of Weltanschauung, the malady of the contemporary world, is the fact that many intellectuals are under the evil influence of such Neo-Kantianism, he says.

§5 The Minobe Affair

The interwar period (1920-1939) can be divided into two parts: the relatively liberal era and anti-liberal era, at least in Germany, Austria and Japan.  Kelsen himself had to move from Vienna, through Cologne, Geneva and Prague, to the United States because of this change of political situations.  Compared with the radical change in Germany and Austria, the Japanese transition was relatively gradual.

Japan’s conflict with Chinese nationalism during this period grew more serious year by year.  In the midst of this tension between the two countries, the panic of 1929 hit the Japanese economy.  The consciousness of this crisis gave rise to the fanatical nationalists who insisted on the military solution to the Chinese crisis, even at the risk of international isolation.  Attempts at the lives of politicians who were regarded as “soft” continued unabated during this period.　The assassination of Prime Minister Tsuyoshi Inukai (1855-1932) put an end to party-government.  An admiral, Makoto Saito (1858-1936), who had no political basis of support in the Diet, was chosen as the next prime minister.

In such atmosphere, academic freedom became gradually endangered.  One of the most conspicuous victims was Tatsukichi Minobe.  Rightwing writers have continuously attacked the emperor-organ theory as a sacrilege, but with little serious threat to academic freedom until 1935, when several politicians publicly attacked it in the Diet.  Minobe, who was a member of the Upper House, made a speech pointing out that the organ theory was nothing but an academic theory which explained the public status of the emperor.  However, the unified efforts of opposition parties, bigots in the Army, and rightwing groups to harass the government gathered momentum.  Consequently, Minobe was forced to resign from the Diet.  The emperor-organ theory was declared to be inadmissible with regard to the sacrosanct Kokutai (the essence of the state).  He became the target of assassination and was actually injured.  Three of his books were outlawed.

For not only for “Japan’s Jellinek” Minobe, but for the “Kelsen students,” the monarch- organ theory had been an accepted theory, which many scholars had written in their textbooks.  Jellinekians and Kelsenians faced a common front against nationalist fanaticism.  Now their true grit was tested.

Up to this time, I feel the writings of the “Kelsen students” were not interesting. Most of them were clumsy reproductions of what Kelsen wrote. Those who were chasing the “new trends” had already turned from Kelsen’s theory to “political” approaches by Carl Schmitt (1888-1985), Rudolf Smend and others.   

§6 Toshiyoshi Miyazawa

Toshiyoshi Miyazawa was the successor to Minobe’s chair of constitutional law at the Tokyo Imperial University.  After Minobe retired in March 1934 at the age of sixty, he started lecturing from the summer semester.  At the outset, he declared,

  Auguste Comte (1798-1857) once said that history had moved from theological, through metaphysical, to positivist stage.  Within the constitutional scholarship in this country, Hozumi’s system corresponded to the first, and Minobe’s to the second phase.  Now the positivist phase starts.

Undoubtedly, it sounds like a Kelsenian proclamation. 

Miyazawa had been deeply worrying about the end of party government in Japan by the assassination of Inukai in 1932 and the Nazi seizure of power in Germany in 1933.  In an article “Democracy and Dictatorship: Taboo and Politics” (1933), he said:

  The fundamental difference between dictatorship and democracy consists in whether the existence of an absolute authority is accepted.  An absolute authority can only be maintained by taboos.  Democracy is a tabooless system with its freedom of speech and of science.  The recent Nazi seize of power symbolizes the revival of taboos.

By referring to the freedom of science, Miyazawa must have been thinking about the fate of scientists in Nazi Germany, including Kelsen.

In 1934, he criticized Otto Koellreutter’s argument that Hitler represented the German people, in two articles “Democratic Disguise of Dictatorship” and “The Concept of Representation,” in which he argued:

   Even despotic governments want to present themselves as “people’s government.”  One of the convenient ideological tools for this purpose is the concept of representation.  Paul Laband once bluntly said that there was no place for the concept of representation in positive law.  It is right, but the members of the parliament were elected by those who are entitled to vote.  Without any such procedure, how can the dictators claim to be the representative of the people? 

   The favorite arguments of reactionary scholars in recent Germany are the distinction between democracy and liberalism.  They espouse an illiberal democracy.  Democracy is, however, the political organization of freedom. Democracy without liberalism cannot exist.  Kelsen is quite right when he, criticizing Rudolf Smend (1882-1975), says, “The fight against parliamentarism means in reality the fight against democracy.  One must be honest to admit openly that he is fighting against democracy when he is fighting against parliamentarism.” (Der Staat als Integration, p.82)

In the same year, Miyazawa published an article “Democracy and the Relativist Philosophy.”  It is a comment on the article “La rélativisme dans la philosophie du droit” by Gustav Radbruch (1878-1949), in which the author said that relativism did not mean the lack of conviction and character but rather an aggressive moral attitude.  It is the basis of liberalism, rule of law, tolerance and democracy.  Miyazawa pointed out that representative figures of relativism in German legal philosophy were Max Weber (1864-1920), Georg Jellinek, Hans Kelsen and Hermann Kantorowicz (1877-1940), and that all of them except the already dead Weber and Jellinek were expelled like Radbruch himself, symbolizing the Nazi attitude toward relativism.

Then, in 1935, the Minobe affair occurred.  Dark clouds hovered over Miyazawa’s academic future.  He was constantly watched by the right-wing intellectuals and students who were influenced by them, scrutinizing what Minobe’s successor spoke on the emperor and the emperor-organ theory.  He was repeatedly attacked for his above-quoted article on relativism.

In 1936, soon after the Minobe affair, he contributed a short article “‘Theories’ in Jurisprudence” for an academic journal, in which he wrote in the following way:

  There are two kinds of legal theories: interpretive and cognitive.  The former is a value judgment within the framework of positive law.  If interpretations A, B and C are possible for a provision of a statute, any private person can express his opinion as to which he prefers.  Public authorities, on the other hand, can authorize any one of them as the authoritative interpretation. 

  Cognitive theories are different.  Only science of law is their competent judge.  It is not only theoretically impossible, but harmful if a public authority tries to intervene and authoritatively decide which is right.

Evidently, the emperor-organ theory belongs to the cognitive theory.  Miyazawa in this way criticized the persecution against Minobe.  This dualism of cognition and value judgment is evidently Kelsenian.  In his article on the representation, he quoted Kelsen’s article “Zur Theorie der Interpretation” (Revue Internationale de la théorie du droit, 1934) concerning this dualism.

It was this year when, in a large-scale coup d’état attempt (the February 26 Incident), two former prime ministers were killed and the incumbent Prime Minister Keisuke Okada (1868-1952) narrowly escaped.  As the assassination attempt against Minobe exemplified, there were physical dangers for those who were targeted by the fanatics.

Miyazawa was not a person who dares heroic martyrdom.  About ten years from this time, his academic activities were restricted to relatively low-key subjects, such as   Japanese constitutional history or criticism of traditional Rechtsdogmatik of the distinction of public and private law, for example.  Kelsen’s influence is evident in the latter category of Miyazawa’s writings.  Kelsen-studies provided a haven for the intellectuals who were averse to the militarist atmosphere.  Seiichiro Ono (1891-1988), a theorist of criminal law who had not a favorable opinion about Kelsen, commented in 1935:

  One reason why Kelsenianism is popular among young intellectuals is that it provides a convenient haven for the liberal intellectuals who cannot devote themselves neither to communism nor to nationalism.

It is an opinion of those who do not recognize the inherent value of cognition and presuppose that political ideology is everything.

§7 Kisaburo Yokota

Kisaburo Yokota became an avowed Kelsenian as soon as he read Das Problem der Souveränität in 1923 and continued to be so throughout his life.  In the necrological article in 1974, he recalled:

  After I graduated the university (the Tokyo Imperial University) and worked with my article “A Historical Study of International Judicature” for one year and half as a research assistant, I was thinking about studying basic problems in jurisprudence.  It was at that time when a bookseller showed me Kelsen’s Problem der Souveränität.  I remember it was a very difficult book, partly because my ability of German language was insufficient but also because Kelsen’s style was not an easy one to understand.  Muddling through, however, I am surprised by its sharpness, thoroughness, freshness and boldness.  Its ideas are high and far-reaching.  I was very much impressed, or rather, deeply moved….

  Kelsen charmed me by his theory of the primacy of international law to national law, above all.  It was the time when the World War was over, the League of Nations and other international organizations were established, and world peace seemed to be realized.  In such a situation, new theories of international law shall be introduced which radically criticize the concept of sovereignty.  Kelsen’s book was the one which supplied us what we wanted, I felt.  For a young student, who just started the study of international law, it was just moving.  I put my whole heart and soul into understanding this book.

As a matter of Kelsen-interpretation, Yokota’s one is too idealistic compared with Kelsen’s “cold realism.”  For his critics, his internationalism was a somewhat naïve belief in the world order under the Anglo-American hegemony.  Yokota was remembered as one of the very few Japanese who boldly criticized Japan’s behavior in the Manchurian Incident and justified the Stimson Doctrine. 

After the victory in Russo-Japanese war in 1904-1905, Japan claimed special interests in the northeast China (Manchuria) from which it expelled the Russian influence with much sacrifice.  This claim was rejected by China.  Foreign minister Kijuro Shidehara (1872-1951) tried to resolve the crisis through negotiation with the Guomindong government, but this effort definitively failed in 1931. In September of the year, a branch of Japanese army occupied the area without legal procedure (the necessary decision of the cabinet and the commandment of the emperor). 

  Henry L.Stimson (1867-1950), Secretary of the State of the United States, sent notes to Japan, declaring that it would not admit the legality of the occupation.  When the League of Nations voted against Japan, it withdrew from it in 1933.  Amidst the nationalist furor, Yokota wrote that the Japanese occupation of Manchuria was illegal and that the Stimson Doctrine was a valid principle of international law.  He also criticized the withdrawal from the League.  He was often blackmailed and guarded by policemen.  

  §8 Tomoo Otaka

  Tomoo Otaka was born in colonial Keijo (today’s Seoul in South Korea), as a son of a businessman.  He studied law at the Imperial University of Tokyo (1919-1923) and philosophy at the Imperial University of Kyoto (1923-1928), where his teacher was idealist philosopher Kitaro Nishida (1870-1945).  In 1928, he was called to the   Imperial University of Keijo (today’s Seoul National University) as associate professor (In 1930, full professor). In 1928-1932 he studied in Vienna (under Kelsen), in Freiburg (under Husserl) and again in Vienna (under Verdroß).  He published a book Grundlegeng der Lehre vom sozialen Verband (1932) and two articles in German. 

After he returned to Japan, he wrote several large books such as Philosophy of Law (1935), Structure of the State(1936), The Order of Positive Law  (1942) etc., in which he criticized Kelsen’s theories.  In the preface of the 1936 book, he wrote that it was as a whole a critique of Kelsen’s theory.  In 1944, he was invited to the Law Faculty of the Imperial University of Tokyo (today’s University of Tokyo) and taught “jurisprudence” (this name was changed to “philosophy of law” under his initiative).

  In his early days, he seems to have been influenced by the organic theory of Otto von Gierke (1841-1921).  His choice of Kelsen as his mentor was an attempt at self-criticism because he felt some theoretical weakness in Gierke’s approach.  He was impressed by Kelsen’s incisive analysis of legal concepts.  However, he could not accept Kelsen’s nominalism concerning the concept of state as personification of legal order.  In his view, the state is a Geistesgebilde which can be grasped by way of Diltheyan Geisteswissenschaft or Husserlian Wesensschau.

In addition to this ontological theory, he argued that the Geistesgebilde “state” was fundiert (a Husserlian term) by empirical facts.  Against Kelsen, who said that the state was exclusively the object of legal science, he asserted the interdisciplinary character of the Staatslehre.

  Another point he raised against Kelsen was the relationship between the primary and secondary norm.  According to Kelsen, a legal norm is a norm which normatively combines the conditions and coercion (“when one murders a human being, he shall be punished”).  Existence of the norm “kill not” is presupposed only secondarily.  Otaka, quoting Max Ernst Mayer (1875-1925) and Eugen Ehrlich, espoused the primacy of “cultural” or “social” norms to coercive norms.

    Many Japanese critics of Kelsen shared this opinion of Otaka’s, e.g., Minobe.  In my (Nagao’s) view, Kelsen presupposes a pluralistic society in which many “social norms” are waiting as candidates for the legislation which combines them with coercion.  Only after the legislation, we can see which “social norms” are behind the positive rules.  Otaka must have believed that in such a monolithic nation as Japan, there was only one candidate for a coercive norm.  It is a blatant myth.  Japan in 1920s-1940s was also a pluralistic society.  A professor in the colonial Korea should have been sensitive about it.

As a person, Otaka was a very lovable character.  Kelsen loved him and offered him opportunities for publication of his works.  One probable reason of why Kelsen loved him was his critical stance against Rudolf Smend (Grundlegung, p.7), with whom Kelsen had a harsh dispute at that time (although Otaka’s philosophy seems to be nearer to Smend than to Kelsen).

Just after the war (1948), there was a theoretical controversy between Otaka and Miyazawa concerning the postwar constitutional change.  Otaka wrote that the ultimate source of any legal order was the “nomos,” i.e., the idea of justice.  He argued that although the Japanese constitution and political system changed from the authoritarian Emperor system to popular sovereignty, the change should not be called a revolution, because the “nomos” was the same. 

 Miyazawa pointed out that “nomos” was but an empty formula, and that the problem was whose concept of “nomos” should prevail.  Otaka’s arguments were an attempt at concealing the real change, he argued.  Most intellectual readers at that time thought that Miyazawa won the dispute.  Evidently, Miyazawa is far more Kelsenian than Otaka.

Though theoretically critical, Otaka admired Kelsen.  Shiro Kiyomiya, who was his colleague at Keijo Imperial University, recalled in 1974 that Otaka and he tried to invite Kelsen to their university, in vain, when he was deposed from the University of Cologne.  Otaka was always inimical to the Nazi regime and its legal ideologues.  In the Preface of the 1935 book, he wrote:

After the Nazi takeover, Germany has not been a stage of free scientific development.  With a view to this situation, we must strive to keep our position as independent thinkers.

  The latter passage comically betrays the mentality of Japanese academics who had been totally dependant on their German counterparts.

    Students were told to write an essay on elephants.  The British visited the zoo and wrote “The Economic Utility of the Breeding of Elephants.”  The French also visited the zoo and wrote “The Erotic Life of Elephants.”  The German, instead of visiting the zoo, went to the library, read mountains of books and wrote “Vom Wesen der Elefanten (The Essence of Elephant).”  The Japanese also visited the library and wrote “Die Genealogie der Lehren vom Wesen der Elefanten in Deutschland (Genealogy of the Teachings on the Essence of Elephant in Germany).”

Otaka characterized Carl Schmitt’s theory of pouvoir consituant as a Machttheorie. He literally despised Otto Koellreutter (1883-1972) and Reinhard Höhn (1904-2000). In a postwar article, he criticized Tanaka for his admiration of Erich Kaufmann, who, in his view, belonged to the ideological precursors of National Socialism.

In the Preface to his book What is Ultimate in Law (1947), he wrote:

    Just before finishing this book, a Korean young scholar, who has studied under Prof. Kelsen at Berkeley, brought me a message from him.  I remember with gratitude how he helped me while I was in Vienna.  He was persecuted by the Nazis and emigrated to the U.S.  I felt unspeakable delight and encouragement as a Japanese scholar who has been long separated from the international cultural world.  I am not a person who follows his theories, which I criticized several times in this book.  However, I dedicate sincere reverence and awe for his unflinching fight for the independence of law and science of law against political pressures.

　§9 An Overview of the Prewar Kelsen-Studies

In retrospect, the perspective of the prewar Kelsen studies in Japan was restricted in two or three important respects, although we cannot blame the authors because they could not have or was difficult to have relevant information.

First, Kelsen’s Vergeltung und Kausalität (and its English version Society and Nature), published amidst World War II, reveals to us his philosophical presuppositions (especially his Humean aspect) and broader view of the intellectual history of mankind.  It showed us that his theory of norms has relevance to philosophical anthropology and philosophy of science.

Second, Rudolf A. Métall’s biography (1969) allows us to know the basic facts about his life.  It made us known what the Jewish problem meant for him.  Most people had imagined that Kelsen, with his penchant for “purity,” was a typical ivory tower scholar who had no knowledge and experience of political reality.  The book showed us that he played important roles during World War I as an advisor to the minister of war. 

Third, we came to know the importance of the Viennese background of his ideas by such books as William M.Johnston, The Austrian Mind: An Intellectual and Social History, 1848-1938, 1972, Allan Janik and Stephen Toulmin, Wittgenstein’s Vienna, 1973, and Carl E.Schorske, Fin-de-siècle Vienna: Politics and Culture, 1979.  Prewar “Kelsen students” did not notice the difference of intellectual climates between Germany and Austria, with the possible exception of Miyazawa.  The bookshelves of legal scholars in prewar times could not contain the works of Freudians, Wittgenstein or logical positivists.

III Kelsen and Postwar Jurisprudence in Japan

§1 Historical Situation

  With Japan’s defeat in World War II, the militarist regime with its nationalist fanaticism collapsed.  Under the American occupation forces, liberal democracy became the new authoritative political doctrine, although the rule of the “American Caesar” (General Douglas MacArthur (1880-1964)) was beyond criticism.

  The new regime with its liberal democratic and internationalist political ideas seemed to be favorable to Kelsen’s rationalist jurisprudence.  In reality, it was not necessarily so.  For several reasons, Kelsen’s theory and ideas were not favorably accepted by intellectuals and legal scholars.

  First, Kelsen’s relativist foundation of democracy was a product of the interwar period, when democracy was on the defensive in Europe.  The postwar democracy was, on the other hand, an aggressive doctrine which justified itself absolutely.  In the prewar world, the individualist democratic theories of John Locke (1632-1704) and Jean-Jacques Rousseau (1712-1778) were regarded as obsolete, superseded by such new trends of thought as historicism and Hegelianism.  However, these political theories were supported by the American occupiers and have now become the new orthodoxy.

  Second, in postwar Germany and Austria, the new proponents of the revived natural law doctrine, some of whom had been committed to the Nazi regime, attacked Kelsenian legal positivism as the ideological root of National Socialism. Although this was a theoretically and historically very dubious contention (were not the Cardinal Eugenio Pacelli (1876-1958) who signed the concordat with Nazi Germany in 1933 and the Austrian Cardinal Theodor Innitzer (1875-1955) who kowtowed before Hitler in 1938 believers in natural law doctrine?), it did have followers among Japanese legal scholars.

  Third, Marxism found enthusiastic support among Japanese intellectuals of the younger generation because of the influence of the Chinese revolution and of the widely accepted view that only communists resisted militarism whereas the liberals more or less succumbed to it.

  Lastly, legal scholars rejected Kelsen’s assertion that jurisprudence should be purely

a theoretical science. They thought that the mission of scholars of jurisprudence should

have a practical application, hoping to improve society by offering good advice to 

legislators, legal practitioners, and educators of future lawyers, even if this advice

were to be based on non-scientific value judgments.

§2 Yokota and Miyazawa

  Some older students of Kelsen, however, continued to discuss Kelsenian problems.

For instance,  Kisaburo Yokota, after the war ended in 1945, welcomed the American Occupation.  In his reminiscences, he wrote that he was overjoyed by the defeat of militarist Japan.  He was “national indifferent” like Kelsen (cf. Rudolf A.Métall, Hans Kelsen: Leben und Werk, 1969, p.11).  As a specialist in international law, he justified the Nuremberg and Tokyo War Crimes Tribunals as further steps in the development of international law.  His attitude invited ideological attacks from Japanese nationalists after the Occupation ended. 

  He asserted that Article 98 of the Constitution of Japan stipulated overruling the validity of treaties over constitutional clauses. This interpretation has been criticized as too idealistic and internationalist from the viewpoint of positivist jurisprudence.  Many thought that it was the consequence of Kelsen’s formalistic jurisprudence, because “the Kelsenian Yokota” taught it, whereas Kelsen had written, “norms of national law which violate international law are valid, even from the viewpoint of international law, because the latter does not contain the procedure to nullify them.” (Reine Rechtslehre, 1934, p.146)  Constitution can confer the constitutional court the competence to annul the treaties (“La garantie jurisdictionnelle de la constitution,” Revue du droit public, Vol. 44, 1928, p.36).

  In the field of international law, Kelsen’s works have been quoted as important views by the new generation. And, we have not seen vehement criticism of his scholarship in this field as we have seen in other fields.

In 1948, Toshiyoshi Miyazawa published a book “The Essential Character of Democracy,” in which his “Kelsenian articles” in the prewar era were incorporated (“Democracy and Autocracy,” (1933) “Democratic Disguise of Dictatorship,” (1934) “Democracy and Relativist Philosophy,” (1934) etc.).  In its “Introduction,” he wrote, “My fundamental position on the subject of democracy is as a whole that of Gustav Radbruch and Hans Kelsen, as readers will discern.”

Miyazawa, just as Yokota, welcomed the American Occupation.  When General MacArthur’s Headquarters showed the draft of the new Constitution to the Japanese government in February 1946, and the new draft based on it was made public in March, Miyazawa ardently defended it.  For this he is now remembered in Japanese legal history as a defendant of the new Constitution as well as the author of the authoritative textbooks and commentaries of the Constitution. 

  Miyazawa’s postwar constitutional theory contains a non-Kelsenian aspect, which has been hotly debated to this day.  In 1942, amidst the war, he published a textbook on constitutional law, in which he taught that the essential principles of the constitution (Kokutai) cannot be amended even by the procedure stipulated by the constitutional law.  This is very different from the position of Kelsen, who wrote: “it is legally possible to change constitutional monarchy into a republic, just as in the case of other constitutional revisions.”(“Reichsgesetz und Landesgesetz nach der österreichischen Verfassung,” Archiv des öffentlichen Rechts, 32.Bd., 1914, p.413)  This assertion of Miyazawa was evidently influenced by the theory of the distinction between Verfassung and Verfassungsgesetz and pouvoir constituant and pouvoir constitué by Carl Schmitt.    This teaching, with regard to the use of the term kokutai, was seen as the atavistic return to Hozumi, and a diversion from the teachings of his teacher, Minobe, who denied the legal relevance of the term Kokutai. 

  In October 1945, Miyazawa wrote that the Constitution of the Empire of Japan, promulgated in 1889, was sufficiently liberal and democratic, and he did not think it was necessary to revise.  However, he changed this attitude in March 1946, when the draft of the new constitution was made public.  He asserted that the principle of the sovereignty of the emperor was the “essential principle” (kokutai) of the Meiji Constitution, which could not be amended constitutionally.  The legislation of the new Constitution with its popular sovereignty would be nothing but a legal revolution.  If so, when did this revolution take place?  Miyazawa answered that it was on August 15, 1945, when the Japanese government legally accepted the Potsdam Declaration in which the principle of popular sovereignty was included.

  This teaching of Miyazawa has been called the “August Revolution Theory,” which invited a lot of criticisms.  Some argued that the dogma of the limitation of constitutional amendments which Miyazawa presupposed was by no means an accepted doctrine.  Others doubted whether the Potsdam Declaration stipulated the principle of popular sovereignty in Japan.  Another questioned whether a treaty can change the fundamental principle of the state.  Others pointed out that the legality and legitimacy of the new constitution was doubtful because it was dictated by the occupation forces and was not the product of the free will of the Japanese people.

  In his last days, he returned to the Kelsenian topic of relativism.  He published an article “On Justice” (1960) in which he subscribed to the Kelsenian agnosticism of justice and recommended the maxim “Vivat justitia, ut floreat mundus!” instead of “Fiat justitia, pereat mundus.”  In his necrology to Kelsen (1974), he quoted Kelsen’s words from “Die platonische Gerechtigkeit” (1933):

    The desire and longing for justice, which is more than just compromise and peace, and belief in a higher, or rather the highest value, is too strong to be shaken by some rational considerations.  History shows the invincibility of belief.  If we may assume that this belief is an illusion, the illusion is stronger than reality, because most people, or, I dare say, all mankind, would not solve their problems with an appeal to reason.  It seems to be the reason why mankind cannot be content with the answer of the sophists and seek the way on which Plato went, that is, the way to religion. (Aufsätze zur Ideologiekritik, 1964, pp.230-231)

  Miyazawa commented on these passages:

    What was Kelsen himself thinking at the last days of his long life?  Had he continued to hold this unorthodox opinion?  Had he not reeled into Plato’s way, into the way of religion?  This is what I want to know.

Miyazawa surprised his friends by being baptized just before his death.

§3 Other “Elder Kelsen-Students”

It is somewhat awkward to write about what the other “Kelsen students” did in 1935-1945.  Many left Kelsen-studies and never returned. 

Satoru Kuroda, the translator of Philosophischen Grundlagen, turned to be a Schmittean and justified the war-time legislations under the pretext of emergency, although his system of Staatslehre and constitutional law in his book (1936) was an eclectic of the ideas of Jellinek, Kelsen and Schmitt.

Teiji Yabe, who once supported Kelsen’s relativist foundation of democracy, became the proponent of the “Greater East Asia Co-prosperity Sphere.”  His interest in Kelsen, however, continued to the postwar times.  He published a translation of Kelsen’s Political Theory of Bolshevism.

  Tomoo Otaka continued his critique of Kelsen in favor of his multi-disciplinary approaches to law and state.

Shiro Kiyomiya, in his textbook on constitutional law, referred to Kelsen’s theory of Grundnorm, but reinterpreted it to be the fundamental principles of positive constitutional law instead of a hypothetical presupposition.  By this theory, he legitimized the positive constitution: in prewar times, the Meiji Constitution and, in the postwar period, the Constitution of 1946.

Naoki Kobayashi (1921-), in his books published in 1960 and 1961, succeeded this revision and taught that “basic norms” could not be amended even by the procedure of the constitutional amendment.  In this context, he referred to Carl Schmitt’s teaching of the limitation of constitutional revision　(Verfassungslehre, 1928, p.20).  Here Kelsenian terminology and Schmittian doctrine got married in legitimatizing the positive law.  He also succeeded the contention of Otaka for the multidisciplinary character of the Staatslehre.

§4 Ukai and Aomi

Nobushige Ukai (1906-1987), theorist of constitutional and administrative law, studied at Harvard in 1939-1940.  He was one of the first Japanese law scholars who was interested in the American legal realism.  His book New Trends in American Jurisprudence (1948) is a witty presentation of the iconoclastic writers (Jerome Frank (1889-1957), Karl Llewellyn (1893-1962), Fred Rodell (1907-1980) etc.) in which he pointed out the spiritual affinity of legal realists and Kelsen with their destruction of the legal myths including the myth of legal certainty. 

He attended Kelsen’s Oliver Wendell Holmes Lectures (1940-1941).  Because of the worsening U.S.-Japan relationship, he had to return to Japan in the midst of the lecture.  Kelsen gave him the manuscript of Law and Peace in International Relations which Ukai later donated to the Central Library of the University of Tokyo.  Ukai was also the first Japanese who noticed the importance of Society and Nature.

One interesting thing to mention here is that the important Kelsen scholars among public law theorists (Mizayawa, Kiyomiya, Yanase and Ukai) were all disciples of Minobe, who hated Kelsen’s theory.

Ukai edited the book Hans Kelsen (1974) on the occasion of Kelsen’s death.  Its first part contains expositions of his theories by specialists (“The Pure Theory of Law” by Ukai, “Ideologiekritik” by Jun-ichi Aomi (1924-), “Democracy” by Ryuichi Nagao (1938-), “Parliamentalism” by Yoichi Higuchi (1934-), “International Law” by Wakamizu Tsutsui (1934), and “Kelsen in Japan” by Hideo Hara (1934-1984)).  In the second part, representative Kelsen-students contributed memories under the title “Kelsen and I,” (Kiyoshi Asai, Kihachiro Kanno (1928-), Kiyomiya, Kuroda, Miyazawa, Yoshiji Nishijima (1907-) (translator of Vom Wesen und Wert der Demokratie), Yoshito Obuki (1929-1995), Ukai, Yanase and Yokota), a biography by Nagao and the translation of “Was ist reine Rechtslehre?” “Verteidigung der Demokratie,” and Adolf Merkl’s “Hans Kelsen als Verfassungspolitiker.”

Jun-ichi Aomi, a disciple of Otaka, was a person with the orientation for natural science and scientific philosophy.  From his younger days, he was an admirer of Bertrand Russell (1872-1970).  He studied in the United States and was influenced by the emigrated philosophers of the Viennese Circle.  After he returned to Japan, he started radical criticism of jurisprudence with the theoretical tools of logical positivism.  In this period, he wrote an article “The Pure Theory of Law,” (1956), in which he emphasized the intellectual affinity between the Viennese Circle and Kelsen.  He pointed out that Kelsen was a friend of Moritz Schlick (1882-1936) and that Kelsen seemed to be a member of the Circle, although somewhat peripherally.  Aomi’s overall opinion is that Kelsen’s affinity with the Viennese tradition of empiricism (e.g., Ernst Mach’s (1838-1916) influence on him) is philosophically sound, whereas the influence of Marburger’s Neo-Kantianism is an inauspicious one.  Under his influence, Kelsen’s philosophy has been characterized as radical empiricism in Japan.  Just as natural scientists interpret empirical phenomena through the category of causality, normative scientists interpret (deuten) them through the normative category (category of imputation).

In the 1960s, he accepted Karl Popper’s criticism of logical positivism and converted to Popperism.  With an inspiration from Ernst Topitsch (1919-2003), he advocated critical rationalism.  As its representative figures, he named Russell, Weber, Kelsen, and Popper, among others.

§5 The Sendai School

Yoshimoto Yanase, a theorist in administrative law, was a person who wrestled with Kelsenian problems throughout his life.  He distinguished theoretical and practical problems in administrative law theories and concentrated his interest to the former, although he sometimes differed from Kelsen in particular issues.  His espousal of criticism of the distinction of public and private law, and of the presumption of legality for the administrative acts sounds very Kelsenian.  He taught at Tohoku University in Sendai, a middle-sized historical city in north-east Japan.

To Sendai came other Kelsen-scholars.  Kiyomiya, who had taught in colonial Korea, returned to Japan and became the professor of constitutional law at Sendai.  Satoru Kuroda, who used to be a professor of Kyoto Imperial University and had taught at a University in Tokyo after the war, was invited to Sendai to teach as guest lecturer.  Terushiro Sera (1917-1989), legal historian on the European Middle Ages, intensively studied Max Weber’s methodology of social science and history.

  Under the influences of these scholars, the so-called “Sendai school of Weber-Kelsen-Schmitt studies” was formed and became academically very active in 1960s and 1970s.  Among its next generation members were Kanno, Obuki, Higuchi, Tokiyasu Fujita (1940-), and Masayuki Atarashi (1945-).  Nagao, who taught legal philosophy there for some years as a guest lecturer, can be regarded as a semi-member of the school.

  Their common trait is theoretical and cognitive orientation.  The presupposition they shared was the Wissenschaftslehre of Max Weber with the postulate of Wertfreiheit (freedom from value judgements) of science and intellektuelle Rechtsschaffenheit (intellectual integrity).  Such an orientation was a reaction to the over-ideological postwar academic world and especially to the apologetic character of constitutional scholarship.  

  Another trait of this school is the interest in comparing Kelsen and Schmitt.  Almost all the graduate students of public law at Tohoku University intensively studied the works of both men.  Ideologically and theoretically, though, most of them supported Kelsenian liberalism and rationalism.

  Kihachiro Kanno criticized Miyazawa’s “August revolution theory” and Kobayashi’s teaching of the limitation of constitutional amendments with largely Kelsenian theoretical tools.  He pointed out that the “August revolution theory” presupposed extreme version of the primacy of international law over national law, according to which treaties overrule the constitution.  It is not the principle of positive legal order, he contends. 

  Yoshito Obuki was a constitutional theorist who studied in the United States.  He intensively read the works of Kelsen and Schmitt and was the translator of two masterpieces: the former’s General Theory of Law and State and the latter’s Verfassungslehre.  One of his foci of academic interest was the comparison of Kelsen and Schmitt.  Although he was attracted by Schmitt’s bold and unique criticism of conventional doctrines, he was a Kelsenian, as the following quotation from his necrological essay to Kelsen (1974) shows:

      Roscoe Pound’s criticism of Kelsen’s theory as “give-it-up philosophy” is a shallow opinion.  Behind Kelsen’s prosaically written theory according to which every legal order is a coercive order which can be used for any purpose, there exists his passionate rejection of legitimization of this order by supra-human and absolute authorities (God, nature, the spirit of the nation, the will of the class, e.g.,).

      In 1933, when the Nazis came to power, Kelsen published a short book Staatsform und Weltanschauung, in which he described the difference of two views of world and society: A (equality of ego and tu, objectivist, rationalist and empiricist epistemology, democracy and pacifism) and B (egocentrism, subjectivist, irrational and metaphysical philosophy, autocracy and imperialism).  He claimed that it was a value-free comparison, but his energy throughout his long life was devoted to the radical criticism of B.  All his writings were Kampfschrifts.

　    I shall quote my most favorite passages of his:

        If a democracy ceases to be tolerant, it ceases to be a democracy.  Can a democracy be tolerant in its defense against antidemocratic tendencies?  It can ― to the extent that it must not suppress the peaceful expression of anti-democratic ideas….Sometimes it may be difficult to draw a clear boundary line between the mere expression of ideas and the preparation of the use of force; but on the possibility of finding such a boundary line depends the possibility of maintaining democracy. (What Is Justice? p.23)

  Yoichi Higuchi is also a constitutional theorist who studied French constitutional theories, but as he was educated in Sendai, he has studied Kelsen and Schmitt intensively.  He compared the arguments of the two concerning parliament and supported the Kelsenian solution which denied the radical separation of democracy and liberalism. 

  Tokiyasu Fujita (1940), Professor of Tohoku University and now a judge of the Supreme Court, distinguished the theoretical and practical postulates in jurisprudence.  He admits that, although the latter aspect is inevitable in view of the social function of law faculty, the theoretical purity espoused by Kelsen and Yanase shall be preserved and shall not be influenced by the practical considerations.  His textbook on administrative law contains practical suggestions, but in its theoretical parts, we can find the ways of thinking and doctrines taught by Kelsen and Yanase. 

  Kelsen and Adolf Merkl criticized the dogma which teaches that an administrative act which violates “important” articles of law is null and void, whereas violation of “not so important ones” is only anfechtbar (revocable), because “importance” is irrelevant from the formal legal point of view (“Über Staatsunrecht,” Zeitschrift für das Privat- und öffentliche Recht der Gegenwart, 40.Bd., 1913, p.73, cf. Merkl, Allgemeines Verwaltungsrecht, 1927, p.195).  Jiro Tanaka (1906-1982), a successor of Minobe’s chair, Fujita’s teacher and the most authoritative scholar in administrative law in postwar Japan, criticized this view rather angrily and emphasized the existence of the distinction with a view to “importance” among legal rules.  Fujita points out that Tanaka’s position is reasonable from the practical point of view, whereas Kelsen’s view is correct from the positivist theory of law. 

  Masayuki Atarashi (1945-) traced the mutation of Kelsen’s theory of Rechtssatz and criticized the later-day dualism of Rechtssatz and Rechtsnorm as the result of incongruence between his positivism and Neo-Kantianism.

§6 Others

The most remarkable work on Kelsen outside Sendai was Social Rhetoric: A Dramaturgy of Law (1985) by Keiichiro Tsuchiya (1946-).  He points out that  Kelsen’s purism has its root in the Zeitgeist out of which arose the espousal of “pure economics” by Joseph Schumpeter (1883-1950), “pure novel” by André Gide (1869-1951), “pure poesy” by Paul Valéry (1871-1945), “pure art” by Le Corbusier (1887-1965) and Piet Mondrian (1872-1944), “pure cinema” by Germaine Dulac (1882-1942), “pure stage” by Jacques Copeau (1879-1949) and “pure criticism” by Albert Thibaudet (1874-1936)

In his view, Kelsen’s purism and anti-psychologism was linked to Husserl’s “pure logic.”  Kelsen distinguished the psychological will and Zurechnung and tried to construct the pure “legal world” with the latter.  It is parallel to the ideas of “pure stage” in which actors’ elocutions are strictly separated from their psychology.  The law and the stage are artificially constructed fields which belongs to Karl Popper’s “World III.”  Tsuchiya relates Kelsen’s theory of will with the theories of “speech act” by British philosophers of ordinary language school. 

  Hideo Hara’s Studies on Value-Relativist Legal Philosophies (1968) explored the problems of the dualism of “is” and “ought,” value relativism, tolerance and democracy of the Neo-Kantian thinkers (Weber, Radbruch, Kelsen etc.).

  Method and Structure of Kelsenian Jurisprudence (1979) by Hiroshi Takahashi (1948-) is an attempt at locating Kelsen’s position in the history of legal philosophy.  His conclusion is that Kelsen completed the 19th century positivism and opened the way for the 20^th century metaphysical trends, to which the author belongs.

Thoughts on Kelsenism (1981) by the public law theorist Takashi Teshima (1933-) comprehensively studied Kelsen’s life, thought and its meaning.  It includes well-documented chapter on Kelsen’s activity as the framer of the constitution.

The posthumous work of Yoshito Kaneko (1948-1992), The Pure Theory of Law, Ideology and Politics (1993) is a work by a scholar of Marxist orientation.  He compared the concept of ideology of Marx and Kelsen, and studied Kelsen’s relationship with Austro-Marxism.

Kelsen and Weber : Introductory Studies on the Theory of Value (2001) by Mitsuharu Sekiguchi (1957-) is his doctor thesis which explored Kelsen’s philosophical background (Husserl, Cohen, Mach, etc.).  The author critically investigated the relativist theories of value of Kelsen and Weber.

Mamoru Saeki’s recent publication Kelsen’s Legal Theory and the Postmodern (2005) is a somewhat abstruse work in which the author tried to locate Kelsen’s legal world within Hegel’s social theory on “mutual recognition.”

§7 Translations –

  Prewar translations of Allgemeine Staatslehre, Reine Rechtslehre, and Vom Wesen und Wert der Demokratie were republished in the postwar period.  Other important translations in the postwar era were Law and Peace in International Relations, Political Theory of Bolshevism, Communist Theory of Law, Foundations of Democracy, and Der soziologische und der juristische Staatsbegriff

  Moreover, there are the ten-volume Writings of Kelsen (1973-1979), in which

(1). Die philosophischen Grundlagen der Naturrechtslehre und Rechtspositivismus (1928) (revised edition)

(2) The Communist Theory of Law (1955)

(3) What Is Justice? (“What Is Justice?” “Causality and Retribution,” “Causality and Imputation,” What Is Justice?(1957))

(4)The Justice of Yahwe and Zeus (“Justice in the Holy Scriptures” (What Is Justice?) and “The Idea of Retribution in Greek Religion” (from Society and Nature(1943)))

(5) On Jurisprudence (Über Grenzen zwischen juristischer und soziologischer Methode (1911), “Die Rechtswissenschaft als Norm- oder Kulturwissenschaft,” (1916) and Two Vorredes to Hauptprobleme (1911 & 1923))

(6) Sozialismus und Staat (1920)

(7) Gott und Staat (“Gott und Staat,”“Seele und Recht,”“Die Idee des Naturrechts,”“Die platonische Gerechtigkeit,” Aufsätze zur Ideologiekritik (1964))

(8) Die Staatslehre des Dante Alighieri (1905)

(9) On Democracy (The first edition of Vom Wesen und Wert der Demokratie (1920), “Das Problem des Parlamentalismus” (1925), “Demokratie” (1927) and “La dictature du parti” (1934))

(10) Die platonische Liebe (1933)

Métall’s Hans Kelsen: Leben und Werk (1969) was also translated (1971).

§8 Decline of Kelsen Studies and the “Last Kelsenian”

 Since the 1980s, Kelsen studies in Japan have declined.  Today, most of the translations of Kelsen’s works are out of print.  There can be several explanations for this phenomenon.

(1)            The first explanation is the change of philosophical climate from episteme to doxa.  Logical positivism, which tried to establish an exact scientific world view on the empiricist basis was superseded by ordinary language school and Quine’s pragmatism (Willard van Orman Quine, 1908-2000). Husserl’s focus turned from pure logic to Lebenswelt.  In the world of jurisprudence, the aspiration to establish an exact science of law receded and, instead, attempts at understanding the legal process as dialogue and the solution of legal problems in the field of pragmatic reason have prevailed.  For the bearers of these movements, Kelsen’s attempt at establishing a pure science of law is pointless (although Kelsen’s deconstruction of legal dogmas has in reality many things in common with them).

(2)            The second explanation is the so-called “revival of normative ethics and practical philosophy.”  They say that epistemological and methodological arguments in ethics and legal philosophy are “barren.”  John Rawls’ (1921-2002) theory of justice ignited the “material” arguments between individualism and communitarianism, or liberalism and libertarianism etc.  Compared with these actual problems, Kelsenian problems have been looked upon as “idle.”  In reality, Rawls’ attempt at combining freedom, equality, tolerance and peace (cf. his proposal for the peaceful coexistence with illiberal but “decent” society in his later work The Law of Peoples, 1999) has many things in common with Kelsen’s theory of democracy.

(3)            Kelsen’s targets of critique were such quasi-theological dogmas as Staatslehre or Willensdogma established by the 19^th century German jurisprudence.  In postwar Japan, most of such dogmas have been things of the past.  Under Anglo-American influence, jurisprudence became pragmatic.  Kelsen’s critiques were regarded as mostly pointless.  To some extent, Kelsen’s critiques were already accepted by the scholars of positive law and became pleonasm (e.g., critique of the dualism of public and private law or of international and national law).

(4)            The revival of religious interests among younger intellectuals is not favorable to the interest in the laic mindset of Kelsen.  Freud-students are probing his intellectual background in Hasidism.  Weber-students are exploring his Protestant religious experience.  Schmitt-students are arguing about his place in German Catholics.  Compared with them, Kelsen’s religious background has very little to attract their attentions.  He was an assimilationist Jew who was baptized twice only for secular reasons.

  However, there is at least one person who is studying intensively and writing frequently about Kelsen even now.  Nagao seems to be the last Kelsenian in Japan.  He began to study Kelsen in 1961 when he was 22 years old.  He has followed Kelsen’s orientations for nearly half a century, and now is deviating from the master’s route.

(1)    The root of Kelsen’s dualism of “is” and “ought” in the history of philosophy is the dualism of pure forms of theoretical and of practical reason formulated by Immanuel Kant (1724-1804).  Kelsen, however, asserts that there is not such a thing as “practical reason” (Reine Rechtslehre, 2^nd ed. pp.420-425).  Then, Kelsen’s theory of human mind is akin to the one which Arthur Schopenhauer (1788-1860) taught, according to whom the human world is composed of the world of phenomena ruled by causality and the irrational will.

(2)    Kelsen did not know Hermann Cohen’s philosophy when he wrote Hauptprobleme.  Only after he read the book review by Oskar Ewald (1881-1940), he systematically attempted to develop the parallelism of Logik der reinen Erkenntnis and Ethik des reinen Willens.  As Aomi and other Japanese empiricists pointed out, Kelsen’s enthusiasm with Cohen (1842-1918) was not a fortunate one for legal theory.  If there is no practical reason in the Kantian sense, the pure form of “is” and of “ought” cannot be so parallel.  Most of the debate between Kelsen and Fritz Sander (1889-1939) might have been a waste of energy.  In this respect, the relationship between Rechtssatz and Rechtsnorm shall be reconsidered (As Tsuchiya pointed out, the world of .Rechtsnorm might belong to the world of “illocutional language behavior” as John Langshaw Austin (1911-1960) formulated, whereas formulating Rechtssatz is a cognitive behavior).

(3)    Human beings who have no category of causality and have only irrational passions are, according to Kelsen, the “primitives,” whose category is the principle of retribution, i.e., lex talionis.  But lex talionis is in reality a deliberate and artificial principle in order to put an end to the infinite chain of revenges.  If one follows one’s passion without any check, one would destroy a whole city for revenging an abduction of a woman.  One may doubt whether such a deliberate, artificial and a posteriori principle can be the origin of the principle of causality, which Kant believed to be an a priori category.

(4)    Kelsen’s “primitive man” who has not the category of causality is a caricature.  If human beings must live in two environments (society and nature), they must adapt themselves to both laws which regulate them in order to survive.  Kelsen teaches that the principle of primitive myth is that of retribution, but if one carefully observes them, there are other types of myths, for example success-failure myths, whose category is causal law. 

(5)    Kelsen’s separation of law and morality cannot be justified.  If a society as a normative order shall exist, coercive and non-coercive norms must somehow form a unity.  In traditional China, Fa (penal law), Li (ritual rules), Hsiao (norms within the family) and Jen (humane morality) constituted a unitary system.  The so-called “Jewish law” (Halakha)　contains many kinds of norms but they are unified under the Grundnorm: “Obey the orders of Yahwe.”  Collisions of their contents are examples of the conflict of norms for which Kelsen has a simple solution (Reine Rechtslehre, pp.84-85).  Moreover, one may doubt whether coercive and un-coercive norms can conflict with each other.  A behavior can be morally justified and legally punished without contradiction just as a behavior can be a crime according to criminal law but not a tort according to civil law.

(6)    The unitary normative system of law and moralities can be constructed on the principle of the (1) primacy of positive law, (2) primacy of a morality, or (3) primacy of the third authoritative norm under which law and morality coexist. According to (1), norms of positive law (e.g., the articles which guarantee the freedom of conscience or religion) delegate moralities to rule the people.  According to (2), norms of one morality (e.g., Romans 13:1) delegate the positive law and other moralities to regulate.  According to (3), the higher authority delegates law and morality to regulate their respective realms of validity.  This construction is parallel to Kelsen’s theory on the relationship of international and national legal order.

(7)    We can separate Kelsen’s normativism from his positivism.  From the viewpoint of pure normativism, we can conceive of a non-effective or a least effective normative systems (e.g., “Be ye perfect, even as your Father which is in Heaven is perfect.”  Matthew, 5:48).  Here we face the problem of the effectiveness of moral systems.  Even with regard to　  “positive morality,” there are many moralities side by side within a pluralistic modern society.  The degrees of their effectiveness differ from district to district and from group to group.  The minimum effectiveness is the probability as to how often one person obeys to his subjective morality.  We can choose a Grundnorm for our behavior which delegates to such a normative system.  As it is a hypothesis, it “may or may not be accepted.” (“Why Should the Law Be Obeyed,” What Is Justice? p.263)  Because the choice of the Grundnorm in this context is arbitrary, this world is a world of the Kampf der Götter (struggle of gods) in the Weberian sense. 

(8)    Radbruch and Kelsen confused two concepts of relativism: theoretical and practical.  The former is the cognitive theory which asserts that any normative system cannot be absolutely justified, whereas the latter prescribes tolerant attitude toward other values.  That there is no logical connection between them is the conclusion from the premise that we cannot deduce ought sentences from mere cognition.  Max Weber’s position can be interpreted as the combination of cognitive value relativism and practical value absolutism as far as he says that one must choose one god among warring gods, and that after the choice one must fight against others as devils.

(9)     In the world of practice, Kelsen preferred autonomy to heteronomy and became a liberal and democrat.  If we want to call him a relativist in practical sense, he introduced a very important exception here.  He is first an autonomist and secondly a relativist in the practical sense.　　He quoted a passage of Joseph Schumpeter (1883-1950) approvingly:

To realize the relative validity of one’s convictions and yet stand for them unflinchingly is what distinguishes a civilized man from a barbarian. (Capitalism, Socialism and Democracy, 1942, p.243 quoted in Kelsen, “Foundations of Democracy,” Ethics, LXVI, Number 1, Part 2, 1955, p.4)

　　　　　　  Kelsen stood for autonomy unflinchingly as a man of practice but recognized that the relativeness of its validity as a man of cognition.     In cognition, however, he cannot prove that autonomy is better than heteronomy.

(10) Critics argue that value relativism is in reality value nihilism, because it does not prohibit any behavior including holocaust.  If they are right, Kelsen as a theorist is a value nihilist.  He was a liberal, democrat and internationalist only as a man in practice.  It is, however, the supreme tenet for Kelsen that we shall not shrink before moralistic accusations. Nihilism is one of the most important philosophical problems in the history of philosophy.  It has been the starting point of Buddhist speculations, which Schopenhauer succeeded.  Was not Schopenhauer Kelsen’s favorite philosopher in his younger days? 

In 1932, when the ship of democracy was sinking, Kelsen said, “We shall be true to our flag, even if the ship is sinking.  We shall bring the hope to the sea bottom with us; the hope that the ideal of freedom cannot be destroyed and that the deeper it sinks, the more passionately it will revive.” (“Verteidigung der Demokratie,” Demokratie und Sozialismus, 1967, p.68)

  Now Kelsen studies in Japan seems to be an endangered species vis-à-vis the overshadowing “practical approaches” in jurisprudence.  My hope is, however, that the ideal of cognition cannot be destroyed and that the deeper it sinks, the more passionately it will revive, even in the field of law.