Political Order and Political Decay (55 page)

Under the new system, the Japanese emperor did not actually rule; real power was held by a small circle of oligarchs including Itō Hirobumi, Yamagata Aritomo, and Inoue Kaoru, as well as various anonymous officials in the Imperial Household, who operated behind the scenes to make policy in the emperor's name. One of their first acts was to create a modern Weberian bureaucracy, whose departments they themselves often supervised. Over time, it was difficult to distinguish between this more political group and the upper levels of the bureaucracy itself. Personnel from the old
han
or domain governments became the core of a new national bureaucracy. These local governments lost their independence in the period 1868–1878 and were turned into prefectural administrative units subordinate to the central government in Tokyo.

As in Europe, education became the gateway into higher bureaucratic service. The Law Faculty of Tokyo Imperial University (now Tokyo University) became the preferred entryway into elite ministries like Finance and Commerce and Industry. By 1937, over 73 percent of higher bureaucrats were Tokyo University graduates.
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The growth in capacity of the Japanese bureaucracy was remarkable for both its speed and quality. Of those appointed prefectural governor before 1900, more than 97 percent had no formal university education; in the period from 1899 to 1945, fully 96 percent of such officials had not only a university education but a Western-style education from one of the many new universities that had been established in the last decades of the nineteenth century.
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It is hard to think of many contemporary developing countries outside of East Asia that have succeeded in building human capital within their state administrations so rapidly.

As in the Prussian bureaucracy, Japanese officials were screened in competitive examinations and entered as a class. It was difficult to make patronage appointments because there was almost no opportunity for lateral or midcareer entry. A civil service career track was created in 1884 with a pension system that rewarded long service. The examination system was established in 1887 and strengthened in 1893 to put strong emphasis on jurisprudence and law. By 1899, the Chokunin Civil Service Appointment Ordnance restricted recruitment into the highest levels of the civil service to those who had passed through the upper civil service.
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This, plus the fact that many bureaucrats came from the former domains of Satsuma and Ch
ō
sh
Å«
that had led the Meiji Restoration, resulted in a high degree of internal cohesion among a very small group of senior public officials.
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Like the German state, the Japanese state was forged in war. Japan fought China in 1894–1895, after which it annexed Taiwan, defeated Russia in the 1905 Russo-Japanese War, gained a foothold in China, and colonized Korea in 1910. As in Prussia, modernization of the administrative structure of the military was seen as key to national survival. The army and navy received huge increases in their budgets, and new academies were set up to train officers in European military techniques. The state paid special attention to those who had fallen in the country's wars, opening the Yasukuni Shrine in Tokyo in 1869 as a place to inter the souls of the war dead. The Tokugawa regime had always been a military oligarchy infused with the warrior ethic of bushido. This ethic was merged with modern organizational techniques in an increasingly autonomous military bureaucracy. Japanese nationalism had a military flavor from the beginning. This tradition continues up to the present day, as conservative politicians seek to visit Yasukuni much to the consternation of Japan's Chinese and Korean neighbors.
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THE SPREAD OF LAW IN JAPAN

By the time of the Russo-Japanese War, Japan could take for granted the existence of a modern Weberian state. Its problem, then, was completely different from that of the vast majority of contemporary developing countries: rather than build state power, it needed to create institutions that would limit the power of the state. This was necessary to protect property rights, and hence the prospects of economic growth, from an overweening state, as well as protection of individual citizens from abuse. This meant the establishment of a rule of law.

Like China, premodern Japan had a long history of rule by law, as opposed to rule of law. That is, law was seen as the regularized administrative commands of the sovereign, binding on subjects but not on the sovereign himself. Japan's first written law was borrowed from the Chinese Tang Code of the seventh and eighth centuries, the Taiho Ritsury
ō
and Yoro Ritsury
ō
in
A.D.
702 and 718, respectively. Like its Chinese counterpart, early Japanese law was largely a schedule of criminal penalties; there was no concept of private law, including contracts, property, or torts. As in China, but differently from Europe, India, and the Middle East, law did not grow out of an independent religious authority with its own hierarchy of judges and interpreters. Law was simply the administrative arm of the government, whether national or domain based. By the time of the Meiji Restoration, traditional Japanese criminal and administrative law was written, formal, and relatively uniform across the whole of the country. Administrative regulation penetrated deeply into rural Japanese society, as evidenced by the personal registration system that identified every individual citizen within the country's borders.
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As part of their modernization effort, the Japanese invited Western legal scholars to come to Japan to advise them, and sent out students and officials to study Western law. The fact that traditional Japanese codes did not cover entire large domains of law, especially in areas related to the economy, meant that this had to be imported from the outside. Indeed, there were much deeper problems: the Japanese language had no word equivalent to the French
droit
, German
Recht
, or English
right
. There was no concept, so basic to European and American law, that rights inhered in individuals prior to their coming together in society, and that part of the role of government was to protect those individual rights. The idea of natural rights embodied in the U.S. Declaration of Independence was considered but explicitly rejected in the formulation of the Meiji constitution.
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Given this tradition, then, it was probably inevitable that after studying English Common Law, Japan passed it up in favor of a civil law system based on those of France and Germany. The English version, with its sprawling decentralized system of judge-made law, was less suited to Japanese traditions than the more compact civil system that could be grafted onto existing Japanese bureaucratic traditions. Many parts of the civil code were imported wholesale, culminating in an expanded Civil Code in 1907; traditional Japanese law was retained in family matters, where rules regarding the
ie
or household were extended from the samurai class to the whole of society.
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By adopting the Civil Code, Japan had implemented a modern rule by law. Rule of law, however, implies further the notion that rules will be binding not just on ordinary citizens but also on the sovereign himself, which meant in this case the emperor. In modern political systems, this is typically done through adoption of a formal, written constitution that spells out the source of sovereign authority and clearly defines (and thereby limits) the powers of government. The Japanese government did this in 1889 by promulgating the Meiji Constitution, which remained in effect until adoption of the American-written post–World War II constitution in 1947.

The Meiji Constitution was drafted in secrecy by five men, one of whom was a German constitutional expert, Carl Friedrich Hermann Rösler. It followed on a thirteen-month trip to Europe undertaken by the most powerful Meiji oligarch, It
ō
Hirobumi, to study European constitutionalism. The fact that he chose to spend this much time abroad studying the issue, and the fact that his colleagues allowed him to do so, is indicative of the importance the leadership accorded the law for Japan's future. (Itō would later serve as resident-general of Korea, and was assassinated in 1909 by a Korean nationalist.)

The Meiji Constitution rejected the English model of parliamentary sovereignty in favor of a more conservative one closer to the Bismarck constitution of the German Empire.
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It vested sovereignty not in the people of Japan, but in the emperor. All of the powers of subordinate bodies were therefore derived from the emperor's authority. He had the right to appoint ministers, make war and peace, and thereby had exclusive control over the military. The constitution provided for a hereditary House of Peers and a Diet that was elected under an extremely limited property franchise that included no more than 1 percent of the population. The Diet had budgetary authority, but it lacked the power to lower the budget; in the event it failed to support the government's proposed budget, the previous year's one would take effect. The constitution enumerated a long list of citizen rights but immediately qualified them by saying that they were subject to law and the requirements of peace and order. These rights were regarded, in any event, not as natural or God-given but as the result of the generosity of the emperor who bestowed them.
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Evaluations of the Meiji Constitution vary substantially depending on whether the observer sees the glass as half empty or half full. George Akita points out that Japan's turn to militarism during the 1930s has led many contemporary Japanese scholars to emphasize the Meiji Constitution's deviations from good democratic practice, and to see those as inevitably preparing the ground for later unbridled authoritarianism. He argues, however, that it makes more sense to see the glass as half full. Japan went from a situation in which there were no formal limitations whatsoever on imperial power to one in which power was regularized and limited in a variety of ways. Although the emperor appointed ministers, all of his decrees had to be countersigned by one of them. Executive powers were shared with the privy council (modeled on the British precedent), a council of elder statesmen known as the genro, and, during the 1910s and '20s, with the prime minister and his cabinet. And the elected Diet's ability to in effect veto budget increases gave it substantial leverage over the government in an era of steadily rising fiscal expenditures, a power that became evident the moment the first Diet was seated. As in the German Rechtsstaat, the formal vesting of sovereignty in the emperor did not lead to the capricious and arbitrary exercise of authority, since the sovereign was committed to governing through a rule-bound bureaucracy.
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It is of course much better to have a fully democratic constitution protecting individual rights than the kind of semi-authoritarian one represented by the Meiji Constitution, or for that matter the Bismarck constitution. Political orders that concentrate too much power in a small set of hands invite abuse in both economic and political affairs. A true rule of law has to be binding on the state itself and the major elites that stand behind the state. Since there is no third party to enforce the constitution, its durability depends much more on the degree to which major interest groups see it in their self-interest to abide by its terms. So the question that needs to be asked about Japan's constitution is, Who were the social and political actors that were pushing for limitations on the sovereign powers of the emperor? Why did the Japanese oligarchs accept legal limitations on their power, when they could have ruled in a much more arbitrary fashion?

In this respect, the Japanese settlement of 1889 was very different from the English one of 1689 because the Japanese state faced very few organized opposition groups, of either an elite or a grassroots variety. The most powerful and dangerous class were former samurai, who had suffered the greatest loss of status and income as a result of the Meiji Restoration. Not allowed to carry their swords and made to cut off their traditional topknots in favor of shorter Western hairstyles, many of them were forced into ignoble occupations like business or farming, or else sank into poverty. Former samurai staged half a dozen armed uprisings after the restoration, but with the military defeat of the Satsuma Rebellion in 1877 they disappeared from politics. Another disgruntled group were peasants, many of whom were hit hard by the Meiji reforms of the land tax and military conscription. They staged a number of protests during the 1870s, but in the end discontent remained local and the group was never organized into a national movement or party. Finally, there were middle-class liberals who adopted Western ideas of freedom and democracy. This group formed the Popular Rights Movement and established a Jiy
Å«
t
ō
(Liberal Party). They circulated petitions and organized protests, and faced repression by the Meiji regime, which led some members to turn to assassinations and armed resistance. But the wind was taken out of the sails of the Popular Rights Movement when the government announced in 1871 the emperor's intention to grant a constitution by the end of the decade.
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Thus the Japanese constitution, in contrast to the English one, was not the result of a prolonged conflict between two well-established social groups who agreed, in effect, to share power. Nor was the Meiji Constitution the product of grassroots mobilization on the part of middle- and lower-class social groups who sought to force a constitution on a reluctant monarch, as happened during the French Revolution. Virtually all observers agree that both the writing and the granting of the new constitution were heavily top-down processes, pushed by actors at the pinnacle of power like It
ō
Hirobumi. The oligarch's hand may have been forced by the Popular Rights Movement, but he remained in control of the political process at all times. There was no equivalent of the Arab Spring in Japan.
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