The Research On The Source Of Rechtsstaat And Rule Of Law In Modern Japan

There are some Japanese characters,'ホウチコク','ホウテキシハイ','ホウチシュギ', that have similar meaning to the Chinese equivalent of'Fazhi'. On one hand, as of German translation from RECHTSSTAAT, the Japanese characters'ホウチコク'are derived from the Meiji Restoration period, particularly from the time the Meiji Constitution was drafted. Consequently, a German-style conception of constitutional politics was put on agenda in the early Modern Times in Japan, in companion with the German constitutional model being in place, which therefore had been dominating the whole academic loop and directing those thoughts on constitutional states posed by secular society from the end of 19th century to the end of the first half of 20th century. On the other hand, as being translated from English'the rule of law', the Japanese characters'ホウテキシハイ'stands for the traditional constitutional conception influenced by Anglo-American (normally noted as common law system), and was introduced to Japan after the Second World War, a result of immigrating the American legal system and introspecting the traditional thoughts. Under most circumstances, it has been used as a comparative explanation of'ホウチコク'to interpret the theories of constitutional politics. As for'ホウチシュギ', it was usually viewed as one of the original concepts of'ホウチコク'during pre-war period, and was applied to administrative law and was often mixed with'ホウチギョウセイ'. However, additional meanings of'ホウテキシハイ'was added in during post-war period, and it was, sometimes, still considered as one of the concepts of administrative law, and sometimes as a wide concept of'the rule of law'by secular society.The main task of this paper will be embarked on the Japan's inheriting Western thoughts in the Modern Times (from the Tokugawa to the end of WWII in particular), and will closely analyse why Japan chose the German'Rechtsstaat'instead of the Anglo-American'Rule of Law'. At the same time, it will demonstrate the development and arguments of the inheritance. And finally the hypothesis, there is no relative connection between the inheritance and Japan's being militarist ideology, will be testified and compared with the German evolution. The contents of this paper are as follows,The first chapter will be about the initial stage known as'the thoughts in cradle'(a period from the Tokugawa to early Meiji Restoration). With a focus on background description for the introduction of Western thoughts, a deep demonstration and findings of Japan's being from cutting off from outside world to later on its opening policy in the first paragraph, the second paragraph will be centred on verifying'Rangaku'(literally'Dutch Learning', and by extension'Western learning'), Chinese-translated articles, scholars'works and other academics, demonstrating Japan's initial views on the way it was going to introduce Western thoughts and its understanding on'ホウチ', and also showing that Anglo-American thoughts were in leading place and others in secondary in the early days of the Modern Times. The verification of Eto Shimpei's thoughts and experience proves the failure of Anglo-Franco thoughts during that period in Japan.The second chapter will be about the staging translation of'ホウチコク'(from the Meiji Constitutional drafting period to the end of 19th century). The first paragraph will focus on the background of introducing German-style thoughts of governing; and will show the coup in 1881 (Meiji 14), Ito Hirobumi's experience in Great Britain and finally the clone of German constitution. Apart from that, a detailed discussion on origin of the German thoughts of governing will be given, centralized by those works of Kato Hiroyuki, Inoue Kowashi and Ito Hirobumi, and early stage of Hozumi Yatsuka, in accordance with the German constitutional politics which is close to its thoughts of governing. The third paragraph, from a literal view point, will be on the process of defining'ホウチコク', and will further discuss those variants of'the rule of law'appeared in the academic history and secular society, demonstrating an initial understanding from the Japanese society, shortly after the German model was introduced.The third chapter together with the fourth will debate on the theories and view points of'ホウチシュギ'(from the end of Meiji Period to Taisho Period). The third chapter will mainly verify the process of German model in Japan from its baby period to the mature period while the fourth chapter will bring forward a deep analysis based on it. The third chapter is to display how the core thoughts of'ホウチコク'-the concept of'ホウチシュギ'-was put forward whereas the fourth chapter is to point out the proper arguments on'ホウチシュギ'which is the disagreement on the essentials of a constitutional monarchy between Bureaucracy and Civil Rights. The difference fundamentally lies in their different social objectives. Thus, Chapter Four will focus on differentiating the two streams, including Hozumi Yatsuka and Uesugi Shingiji from the Bureaucracy, and Minobe Tatsukichi and Sasaki Souichi from the Civil Rights. Based on analysing the points which are of fundamental differences, I will look at the historical relation between the two streams of thoughts. The fifth chapter will discuss the establishment of'bizarre''ホウチコク'(from the beginning of Showa Period to the end of WWII). A relative comparison and interpretation caused by different understanding of'ホウチコク'which was shaped at the beginning of Showa Period, pointing that the understanding of'ホウチコク'from the society was determined to go against the academic theories-resulting in a fundamental change-whilst some other core concepts were constantly developed, would be raised in the first paragraph. Nonetheless, the second paragraph will analyse this situation and its possible influences. As the historical background in Japan and its society were sophisticated at the time, it inevitably makes the entire society go to the right, which not only has contributed to the conflict between the academics and the general people on understand'ホウチコク'-a cause of'bizarre''ホウチコク', but also has directly resulted in the failure of'ホウチシュギ', a thought mainly coming from Minobe Tatsukichi's work.Finally, this paper will end up with a summary of contrasting Japan's and Germany's progress in its own development of governing. Compared with the German Formalism governance which is considered to have connection with Nazism, the Japanese society accepted'All citizens must comply with the law'which was based on the'bizarre'theory, without practising the German model at the first stage.