Hozumi Yatsuka

Hozumi Yatsuka was born in 1860 in Japan. He entered Tokyo University at the age of nineteen after studying English for six years because many professors were foreigners who lectured in their own language. In 1883 after his graduation he entered the graduate school to continue his studies of political science. In August 1884 he went to Germany to study European institutional history and constitutional law. During his stay in Germany he studied at three universities: Heidelberg, Berlin and Strasbourg. In Strasbourg he studied under Paul Laband whose influence on Hozumi was profound. Laband was the foremost German representative of the school of legal positivism. In this usage positivism means an exclusive preoccupation with positive law, the law actually promulgated by a competent lawgiver. The central concept of Laband's theory was that of the legal personality of the state. He grounded sovereignty in this legal personality above and apart from its constituent members.

In 1889 Hozumi returned to Japan and gradually shifted away from legal positivism, but he did not reject his positivist heritage outright. Within a very few years after his return attacks from the left together with issues of interpretation of the Meiji constitution led him to seek in ancestor worship and the family state concept the true source of Japan's greatness.

In his analysis of the state Hozumi speaks of "kokutai" and "seitai." The general and also broad meaning of "kokutai" has already been discussed in the previous paragraph. Hozumi defines "kokutai" anew. He gives "kokutai" a specific legal meaning without stripping it of its historical and ethical connotations. For Hozumi "kokutai" refers to the locus of sovereignty. Two forms of "kokutai" are important: monarchy and democracy. In a monarchy the locus of sovereignty lies in the monarch and in a democracy in the people.

And the form of "kokutai" is also important for the kind of constitution a country has. He distinguishes two kinds, the authorized constitution and the national contract constitution. Authorized constitutions are ordained by a sovereign at his own will. While national contract constitutions arise from an agreement among sovereign individuals.

The term "seitai" is used by Hozumi to denote the specific governmental organization under a given "kokutai." An important distinction is the difference between a despotic "seitai" and a constitutional "seitai." A despotic "seitai" contains all powers in an undivided form while a constitutional "seitai" is characterized by the division of powers.

In his view democracy is the characteristic of European "kokutai" while the Japanese "kokutai" is a monarchical one. And thus the Meiji constitution is an authorized constitution.

Yatsuka is the first who gives "kokutai" its legal meaning and links this with the family idea. His ideas about the Meiji constitution differ from the thoughts of Ito Hirobumi but his writings on the constitution are written within the framework of the Meiji constitution. Hozumi died in 1912 but his ideas about the Japanese state and the Meiji constitution remained the standard interpretation till 1945.

cite book
title=Japanese Tradition and Western Law: Emperor, State, and Law in the Thought of Hozumi Yatsuka (Harvard East Asian Series)
author=Richard H. Minear
date=1970-01-01
publisher=Harvard University Press
isbn=0674472527
url=http://www.amazon.com/gp/product/0674472527 This article is based on Richard H. Minear, Japanese Tradition and Western Law: Emperor, State, and Law in the Thought of Hozumi Yatsuka