![Hozumi Yatsuka, taken in August 1912](https://upload.wikimedia.org/wikipedia/commons/1/11/Hozumi_Yatsuka%2C_taken_in_August_1912.jpg)
was a Japanese scholar and lawyer.
He was active in characterising the legal systems of the
Japanese state, and his writings especially focused on the
Meiji Constitution
The Constitution of the Empire of Japan (Kyūjitai: ; Shinjitai: , ), known informally as the Meiji Constitution (, ''Meiji Kenpō''), was the constitution of the Empire of Japan which was proclaimed on February 11, 1889, and remained in for ...
.
Education
Hozumi entered
University of Tokyo
, abbreviated as or UTokyo, is a public research university located in Bunkyō, Tokyo, Japan. Established in 1877, the university was the first Imperial University and is currently a Top Type university of the Top Global University Project by ...
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
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin de ...
. 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.
Legal scholar in Japan
In 1889 Hozumi returned to Japan and gradually shifted away from
legal positivism
Legal positivism (as understood in the Anglosphere) is a school of thought of analytical jurisprudence developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin de ...
, 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
The Constitution of the Empire of Japan (Kyūjitai: ; Shinjitai: , ), known informally as the Meiji Constitution (, ''Meiji Kenpō''), was the constitution of the Empire of Japan which was proclaimed on February 11, 1889, and remained in for ...
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
is a concept in the Japanese language translatable as "system of government", "sovereignty", "national identity, essence and character", "national polity; body politic; national entity; basis for the Emperor's sovereignty; Japanese constituti ...
'' (national body/structure) and ''seitai'' (government body/structure). 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 characteristic of European ''kokutai'', but the Japanese ''kokutai'' is monarchical and so the Meiji Constitution is an authorized constitution.
Legacy
Hozumi 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 drafter
Itō Hirobumi
was a Japanese politician and statesman who served as the first Prime Minister of Japan. He was also a leading member of the ''genrō'', a group of senior statesmen that dictated Japanese policy during the Meiji era.
A London-educated samur ...
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.
References
* This article is based on Richard H. Minear, Japanese Tradition and Western Law: Emperor, State, and Law in the Thought of Hozumi Yatsuka
{{DEFAULTSORT:Hozumi, Yatsuka
1860 births
1912 deaths
Japanese political scientists
University of Tokyo alumni
University of Tokyo faculty
Japanese legal scholars