HANS KELSEN IN JAPAN

                       Ryuichi Nagao

I.        Historical Context:

Modern Japan experienced three periods of “enlightenment.”

The first period (1868-1887) was an era of wholesale Westernization set forward by the new government, which was followed by an era of partial reap- praisal of traditional values.  The second period of enlightenment (1912-1930) was an era of liberalization after the death of Emperor Meiji as the national “father figure.”  This atmosphere was destroyed by the fanatical nationalism fermented by harsh confrontation with Chinese nationalism, which eventually led to total war against the whole world except National Socialist Germany and Fascist Italy.

The third enlightenment era (1945-1965) was brought about by defeat in the war and the American occupation.  Although these psychological and ideological changes seem to be heteronomous, the reforms carried out by the American authorities were by and large welcomed by the Japanese people, who recognized the unreality of the militarist propaganda and experienced the hardships of the war, especially the intellectuals, the younger generation, and women.  This phase was followed by the partial reappraisal of the traditional values by the people who recovered their self-confidence with a view to Japan’s economic success.

Kelsen study in Japan started during the second era of enlightenment and was continued by liberal intellectuals during the militarist era.

II.         Prewar Era:

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.”  There had been academic and ideological disputes as to whether the emperor was an organ of the state or the subject of the state sovereignty. 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 to study 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 in 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 form and content could not be divided and that jurisprudence could not be a purely 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 the science of law must stop at enumerating possible interpretations within the “frame” and that choosing one possibility among them was a task of “politics” and not of science.  Kimura contended that the “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 had once referred to him.  A porter recommended him to visit a café where Kelsen and Adler met “almost every evening.”   Iwasaki visited it and found them chatting with the wife of a professor of medicine.  Iwasaki spoke English, with which neither professor was acquainted.  Fortunately the lady acted as interpreter.  Answering the question as to who were the most important theorists in the contemporary German-speaking world, Kelsen mentioned 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”

The above-quoted scholars were not specialists in public law or the philosophy of law, and their interest in Kelsen was casual.  Systematic and intensive studies by specialists started about 1925.  Several years later, 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.  Tatsukichi Minobe (1874-1949) wrote in an 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 doctoral 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 have come across.  There seem to be many others which belong to this school, however.”

Many Japanese scholars visited Vienna. For instance, the 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. The international lawyer Kisaburo Yokota (1896-1993) visited Vienna in the summer of 1927 in vain, because Kelsen was on vacation.  The 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 did not necessarily agree 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.

2.   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 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 strengthened 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 becoming 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 normative phenomena including the legal person.  He explains away everything with vague and mysterious concept of “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 is sociology or psychology.  The state is a unity of social mind.  It is the social mind which makes the will of the organ the will of the legal person.  The following passage will illustrate his naïveté vividly:

When a man becomes twenty-five years old, he will be given suffrage.  The provision of 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 in an article published two years later.

Kelsen emphasizes the difference between legal and psychological will.  Ordinary readers will assume “intention” or “malice” as typical examples of will 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 by 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 start, many readers would have been saved from misunderstanding.  Not only Kimura or Minobe, but many other readers were also 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, many of them are pseudo-sciences and myths that claim to be cognitive but are in reality value judgments.  Moreover, they are full of anthropomorphical and substantiating analogies which misled cognition.  These myths have been playing important roles in the preservation of establishments. 

Fourth, most lawyers have believed that 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 of law, 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” here included law professors.     

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

Minobe was an enlightened, liberal and rational theorist of law within the framework of the prewar Japanese regime, who harshly criticized the semi-theological doctrine of Yatsuka Hozumi (1860- 1912).  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 the “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 on 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 gave an overview of  the development of European legal philosophy since the 19th 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 are caricatures.  Tanaka refers to Kelsen’s pure theory of law as a 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 Japan’s shallow intellectual climate, in which people were always chasing 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 tomaterialize 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 Age. 　

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 only 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.  The good parts of the positive law must be justified, the bad 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 for peace over justice.  Kimura is right and Yokota is wrong, because such a view of the world cannot believe in the existence of any natural law.  One of the roots of the anarchy of Weltanschau ung, 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

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

         It is my great pleasure to present this work to 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 the state, was threatened by nationalist fanaticism in Japan.  The constitutional theorist Tatsukichi Minobe 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 led to the war with China and the United States.

The interwar period (1918-1939) can be divided into two parts: the relatively liberal era and the 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 in the  political situation.  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 impact of this crisis gave rise to the fanatical nationalists who insisted on military solution to the Chinese crisis, even at the risk of international isolation.  Attempts on 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 an atmosphere, academic freedom gradually became endangered.  One of the most conspicuous victims was Minobe.  Rightwing writers had 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.

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 taught in their textbooks.  Jellinekians and Kelsenians faced a common front against nationalist fanaticism.  Now their true grit was tested.

I feel the writings of the “Kelsen students” up to this time 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 (1882-1975) and others.   

6. Toshiyoshi Miyazawa

Toshiyoshi Miyazawa was the successor to Minobe in the chair of constitutional law at 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 a theological, through a metaphysical, to a positivist stage.  Within constitutional scholarship in this country, Yatsuka 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 strongly concerned about the end of party government in Japan because of 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 wrote:

    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 seizure of power symbolizes the revival of taboos.

In 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 dictators claim to be representatives of the people? 

     The favorite argument of reactionary scholars in Germany recently 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, said, “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 “Le 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, the rule of law, tolerance and democracy.  Miyazawa pointed out that the 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 right-wing intellectuals and the students who were influenced by them, scrutinizing what Minobe’s successor would say 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” to 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 the science of law is competent to judge them.  It is not only theoretically impossible, but harmful if a public authority tries to intervene and authoritatively decide which is right.

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

It was 1936, 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 demonstrated, there were physical dangers for those who were targeted by the fanatics.

Miyazawa was not a person who dared to risk heroic martyrdom.  For 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 on the distinction between 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 intellectuals who were averse to the militarist atmosphere.  Seiichiro Ono (1891-1988), a theorist of criminal law who had not a favorable opinion of 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 either to communism or to nationalism.

This is an opinion of those who did not recognize the inherent value of cognition and presupposed that political ideology was 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 an obituary article in 1974, he recalled:

    After I graduated from the university (the Tokyo Imperial University) and worked on my article “A Historical Study of International Judicature” for a year and a half as a research assistant, I was thinking about studying basic problems in jurisprudence.  It was at that time that a bookseller showed me Kelsen’s Problem der Souveränität.  I remember it was a very difficult book, partly because my ability in the German language was insufficient but also because Kelsen’s style was not an easy one to understand.  Muddling through, however, I was surprised by its sharpness, thoroughness, freshness and boldness.  His ideas are lofty 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 had been established, and world peace seemed to have been 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 with what we wanted, I felt.  For a young student, who had just started the study of international law, it was very moving.  I put my whole heart and soul into understanding this book.

As a matter of Kelsen-interpretation, Yokota’s 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 (1931) and justified the Stimson Doctrine (1932). 

After victory in the Russo-Japanese war in 1904-05, Japan claimed special interests in 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 that year, a branch of the Japanese army occupied the area without going through legal procedure (the necessary decision by the cabinet and a commandment by the emperor). 

  Henry L.Stimson (1867-1950), Secretary of State in 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 threatened and guarded by policemen. 

  8. Tomoo Otaka

  Tomoo Otaka was born in colonial Keijo (today’s Seoul in South Korea), as the 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 the 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.  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 the state as the 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.  Disagreeing 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 can we 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 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 for 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 in a stage of free scientific development.  With a view to this situation, we must strive to keep our position as independent thinkers.

  Otaka characterized Carl Schmitt’s theory of pouvoir consituant as a Machttheorie. He literally despised Otto Koellreutter 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 young Korean 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 Prewar Kelsen-Studies

In retrospect, the perspective of prewar Kelsen studies in Japan was restricted in two or three important respects, although we cannot blame the authors because it was difficult for them to obtain relevant information.

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

Second, Rudolf A. Métall’s biography (1969) allows us to know the basic facts about his life.  It made it 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 or 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 through such books as William M.Johnston’s The Austrian Mind: An Intellectual and Social History, 1848-1938, 1972, Allan Janik and Stephen Toulmin’s Wittgenstein’s Vienna, 1973, and Carl E.Schorske’s Fin-de-siècle Vienna: Politics and Culture, 1979.  Prewar “Kelsen students” did not notice the difference in 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.  The third era of enlightenment started.  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.  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, 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 in Japan.

  Lastly, legal scholars rejected Kelsen’s assertion that jurisprudence should be purely a theoretical science. They thought that the scholars of jurisprudence should have a practical orientation, 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 “nationally 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)  A constitution can confer on a constitutional court the competence to annul treaties (“La garantie jurisdictionnelle de la constitution,” Revue du droit public, Vol. 44, 1928, p.36).

In 1948, Toshiyoshi Miyazawa published a book “The Essential Character of Democracy,” in which his “Kelsenian articles” in the prewar era were incorporated.  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 like 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 on the Constitution. 

   Miyazawa’s constitutional theory contains a non-Kelsenian aspect, which has been hotly debated to this day.  In 1942, during the war, he published a textbook on constitutional law, in which he argued that the essential principles of the constitution (Kokutai) cannot be amended even by the procedures stipulated by 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’s 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 an 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 any revision necessary.  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’s has been called the “August Revolution Theory,” which invited a lot of criticism.  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 were 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 obituary of Kelsen (1974), he quoted Kelsen’s words from “Die platonische Gerechtigkeit” (1933):

    The desire and longing for justice, which is more than mere compromise and peace, and the 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 seeks thepath 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 in the last days of his long life?  Had he continued to hold this unorthodox opinion?  Had he not reeled into Plato’s path, 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 out to be a Schmittean and justified the war time legislation 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 a proponent of the “Greater East Asia Co-prosperity Sphere.”  His interest in Kelsen, however, continued into 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 as the fundamental principles of positive constitutional law instead of a hypothetical presupposition.  Through 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, inherited this revision and taught that “basic norms” could not be amended even by the procedure of a 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 were married in legitimatizing the positive law.  He also inherited the contention of Otaka about the multidisciplinary character of the Staatslehre.

§4 Ukai and Aomi

Nobushige Ukai (1906-1987), theorist in constitutional and administrative law, studied at Harvard in 1939-1940.  He was one of the first Japanese law scholars to be interested in 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 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.  Its translation by him remained in print until today.  Ukai was also the first Japanese who noticed the importance of Society and Nature.

One interesting point 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 (1928-2007), 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 a 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 an orientation to 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 emigrant 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 the Neo-Kantianism of the Marburg School 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 on the former, although he sometimes differed from Kelsen on particular issues.  His espousal of criticism of the distinction between public and private law, and of the presumption of legality for 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 a guest lecturer.  Terushiro Sera (1917-1989), a legal historian of the European Middle Ages, intensively studied Max Weber’s methodology of social science and history.

  Under the influence of these scholars, the so-called “Sendai school of Weber-Kelsen-Schmitt studies” was formed and became academically very active in the 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 a 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 an 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 obituary essay on 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 favorite passages from his work:

              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-), who was a professor of Tohoku University and a judge of the Supreme Court, distinguished between the theoretical and practical postulates in jurisprudence.  He admits that, although the latter aspect is inevitable in view of the social function of the law faculty, the theoretical purity espoused by Kelsen and Yanase shall be preserved and shall not be influenced by 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), the successor to Minobe’s chair of administrative law, 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. 

  Ryuichi Nagao has studied Kelsen’s theories for half a century and translated many of his works.  He inherited many of Kelsenian theses such as anti-irrationalism, nominalist epistemology and value relativism.  However, from the beginning he reserves his skepticism about fundamental Kelsenian theses:  whether “ought” is a category, and whether law and morals belong to different normative systems, etc.  He thinks that Kelsen’s concept of “primitives” who think only in terms of the normative category is mistaken, that “primitives” do not equate crime and punishment, so that Kelsen’s thesis that the idea of the equivalence of cause and effect originated from “primitive principle of retribution” is erroneous, that Kelsen’s lack of language theory is fatal, etc., etc., etc.  He intends to elaborate these ideas in a few years.

  Masayuki Atarashi (1945-) traced the mutation of Kelsen’s theory of Rechtssatz and criticized the latter-day dualism of Rechtssatz and Rechtsnorm as the result of incongruence between his positivism and Neo-Kantianism.  He recently published a book on the constitutional court.

§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 between the psychological will and Zurechnung and tried to constructa 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 belong to Karl Popper’s “World III.”  Tsuchiya relates Kelsen’s theory of will with the theories of “speech act” by British philosophers of the ordinary language school. 

  Hideo Hara’s Studies of 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 19th-century positivism and opened the way for 20th 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 a 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 in 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 doctoral 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, The 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), published by Bokutaku-sha Co., in which

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

(2) The Communist Theory of Law (1955)

(3) articles in 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).

In 2009, Jugaku-sha Publishing Co. started publishing Kelsen’s Writings in 6 Volumes, most of which are re-publication of the former Ten Volumes.  Four volumes (Works on Greek Thought, Democracy, Jurisprudenceand Critique of Marxism) have come out already and other three volumes (Critique of Marxism, Critique of Natural Law Doctrine, and History of Ideas) are in preparation (Critique of Marxism will come out in May, 2010).  They are mostly republication of former translations, but some new ones are added (“Die hellenisch-Makedonische Politik und die Politik des Aristoteles,” the second half of Vergeltung und Kausalität, the second half of Peace through Law, Marx oder Lassalle etc.).