Echoes of the Past, Shaping the Future: The Meiji Constitution's Legacy in Modern Japanese Governance

To understand the currents that shape contemporary Japan—its political dynamics, legal culture, and even aspects of its business environment—it is illuminating to look back at its foundational period of modernization. The Constitution of the Empire of Japan, commonly known as the Meiji Constitution, promulgated in 1889 and in effect until 1947, was the cornerstone of this era. It was a pioneering document, representing one of the first attempts by a non-Western nation to adopt a modern constitutional framework. While it ultimately gave way to the current post-war Constitution, the Meiji era's successes, struggles, and failures have left an indelible mark, offering crucial context for anyone engaging with Japan today.

The Birth of a Modern Constitution in a Nation in Flux

The latter half of the 19th century saw Japan undergo a period of unprecedented transformation. The Meiji Restoration in 1868 ended centuries of feudal rule under the Tokugawa Shogunate and propelled the nation onto a path of rapid modernization. This drive was fueled by both internal ambitions and external pressures.

Internal Dynamics: The Call for Representation
The new Meiji government, while revolutionary, was initially dominated by a small group of oligarchs, primarily from the former samurai class of influential western domains. This concentration of power soon led to internal dissent. The Freedom and People's Rights Movement (自由民権運動 - Jiyū Minken Undō), emerging in the 1870s and 1880s, became a significant force. Comprising disaffected former samurai, landowners, and intellectuals, this movement advocated for greater public participation in governance, the establishment of a national assembly, and a written constitution. Their demands were not necessarily for radical democracy but for a system that allowed for broader "public deliberation" (公論 - kōron) in the affairs of the state.

External Pressures: The Quest for Sovereignty and Recognition
Externally, Japan faced the challenge of asserting itself on an international stage dominated by Western powers. The "unequal treaties" imposed in the mid-19th century, which granted extraterritoriality to Western nationals and limited Japan's tariff autonomy, were a source of national humiliation. Adopting a modern constitution and legal system was seen as a crucial step towards revising these treaties and gaining recognition as a sovereign equal among nations.

Ito Hirobumi and the Drafting Process
Ito Hirobumi, a leading statesman of the Meiji era, was tasked with overseeing the drafting of the constitution. He embarked on a mission to Europe in 1882-1883 to study various constitutional systems. While he examined British parliamentarism, he was particularly influenced by the German (Prussian) model and the constitutional theories of scholars like Lorenz von Stein in Vienna. Stein's emphasis on a strong, autonomous executive and a monarch as the symbol and locus of state sovereignty, operating within a constitutional framework but above direct party political control, resonated with Ito's vision for Japan. He sought a constitution that would provide stability and strong leadership for Japan's modernization, while cautiously introducing elements of popular participation.

Preparatory steps included reforms to the Imperial Household, the establishment of a cabinet system (1885), the creation of the Privy Council (枢密院 - Sūmitsuin) as a high-level advisory body to the Emperor, and the founding of Imperial Universities to train a new generation of bureaucrats.

Key Features of the Meiji Constitution (1889)

The Meiji Constitution was granted by the Emperor to his subjects, a "gift" establishing a constitutional monarchy. Its key characteristics defined the political and legal landscape for nearly six decades:

1. The Emperor (天皇 - Tennō)
The Emperor was the central figure, described as "sacred and inviolable" (Article 3) and the head of the Empire, "combining in Himself the rights of sovereignty, and exercises them, according to the provisions of the present Constitution" (Article 4). This established the Emperor as the sovereign, though his powers were to be exercised within the constitutional framework.
Crucially, the Emperor held extensive Imperial Prerogatives (大権 - taiken) that were largely outside the control or scrutiny of the Imperial Diet. These included:

• Supreme command of the Army and Navy (統帥権 - tōsuiken, Article 11).
• Determination of the organization of the different branches of the administration and salaries of officials (Article 10).
• The power to declare war, make peace, and conclude treaties (Article 13).
• The power to issue Imperial Ordinances (勅令 - chokurei) in place of laws when the Diet was not sitting (Emergency Ordinances, Article 8) or for administrative purposes (Independent Ordinances, Article 9), provided they did not alter existing laws.

2. The Imperial Diet (帝国議会 - Teikoku Gikai)
The Diet was Japan's first national legislature, established as a bicameral body (Article 33):

• The House of Peers (貴族院 - Kizokuin): Composed of members of the Imperial Family, hereditary peers, and Imperial appointees (scholars, major taxpayers). It was designed as a conservative check on the elected lower house.
• The House of Representatives (衆議院 - Shūgiin): Members were elected, but suffrage was initially very limited (to males aged 25 or older paying a significant amount of direct national tax).
  The Diet's primary functions were to deliberate on and consent to laws (Article 5, Article 37) and the national budget (Article 62). However, its powers were circumscribed:
• If the Diet rejected the budget, the government could implement the previous year's budget (Article 71).
• Expenditures based on Imperial Prerogatives (e.g., military spending, Imperial Household expenses) and those resulting from existing laws or contracts were largely insulated from Diet cuts (Article 67).

3. Ministers of State and the Cabinet (内閣 - Naikaku)
The Constitution did not explicitly establish the Cabinet as a collective body responsible to the Diet, as is common in parliamentary systems. Instead, "Ministers of State" were to give their advice to the Emperor and be responsible for it (Article 55). Each minister was individually responsible to the Emperor. While a Prime Minister existed, the ideal promoted by the drafters, particularly in the early years, was often that of "transcendental cabinets" (chōzen naikaku), supposedly standing above partisan politics and loyal directly to the Emperor and the state's interests. All laws and Imperial Ordinances required the countersignature of a Minister of State, signifying their responsibility.

4. The Judiciary (司法権 - Shihōken)
Judicial power was exercised by the courts in the name of the Emperor (Article 57). Judges were appointed and their independence was formally protected (they could not be removed except by criminal sentence or disciplinary action, Article 58). However, disciplinary actions were administered by the Ministry of Justice, creating a potential avenue for executive influence. A system of administrative courts, separate from the ordinary courts, handled cases against administrative authorities.

5. Rights of Subjects (臣民の権利 - Shinmin no Kenri)
Chapter II of the Constitution enumerated various rights and duties of "subjects," including freedoms of speech, publication, assembly, association, and religion, as well as property rights and due process protections. However, a critical feature was that most of these rights were guaranteed "within the limits of law" or "except in cases provided for in the law." This "legal reservation" (法律の留保 - hōritsu no ryūho) meant that laws passed by the Imperial Diet could significantly restrict these rights. This differed markedly from constitutions where fundamental rights are more absolutely protected against legislative infringement.

Intended Operation:
The Meiji Constitution was designed to create a strong, centralized state led by a revered Emperor, advised by experienced statesmen (the Genro or elder statesmen played a crucial, albeit extraconstitutional, role in the early decades) and a professional bureaucracy. The Diet was intended to provide a forum for public opinion and to grant consent to laws and budgets, but not to be the primary driver of policy or to control the executive. This system aimed to ensure stability and consistent leadership for Japan's ambitious modernization programs.

The Constitution in Practice: Evolution and Tensions (1890s – 1920s)

The practical operation of the Meiji Constitution often diverged from the framers' initial blueprint, evolving through political struggle and changing circumstances.

Early Years: Executive-Diet Confrontation
The first Imperial Diets, convened from 1890, were scenes of conflict. The elected House of Representatives was often dominated by "popular parties" (mintō) advocating for tax reductions ("relief of the people's burdens") and greater government accountability. They frequently clashed with the oligarchic Meiji government, which prioritized military expansion and industrial development, leading to budgetary deadlocks and dissolutions of the House. The government's ideal of "transcendental cabinets" proved difficult to maintain in the face of partisan opposition that held the power of the purse, however limited.

The Rise of Political Parties and Pragmatic Alliances
Over time, the Genro and bureaucratic leaders recognized the need for some level of cooperation with political parties to ensure stable governance. Figures like Ito Hirobumi himself organized a political party, the Rikken Seiyūkai (Friends of Constitutional Government) in 1900, to create a pro-government force in the Diet. This marked a shift towards a more complex interplay between the executive, the bureaucracy, the military, and the emerging political parties. Governance often involved pragmatic alliances between these groups, with the Genro continuing to wield significant influence in selecting Prime Ministers.

"Taishō Democracy" (roughly 1912-1926)
The Taishō period (named after Emperor Taishō) witnessed a flourishing of more liberal political trends. Key developments included:

• Party Cabinets as Convention: It became an accepted, though unwritten, convention (known as 憲政の常道 - kensei no jōdō, or "normal constitutional government") that the Prime Minister would typically be the leader of the majority party in the House of Representatives. This brought Japan closer to a parliamentary cabinet system in practice.
• Expansion of Suffrage: The most significant legislative achievement of this period was the passage of the Universal Manhood Suffrage Act in 1925, which granted voting rights in House of Representatives elections to all males aged 25 and over, greatly expanding the electorate.
• Vibrant Civil Society: There was increased public debate, a more active press, and the growth of various social and labor movements.

This period represented a high point of pre-war liberal constitutionalism in Japan. However, it's crucial to note that these developments occurred through operational practices and evolving interpretations of the Meiji Constitution, rather than through formal constitutional amendments. The fundamental power structures—the Emperor's prerogatives, the independent status of the military, the influence of the bureaucracy and the House of Peers, and the "legal reservations" on rights—remained intact.

The Path to Collapse: Erosion of Meiji Constitutionalism (1930s – 1945)

The promise of Taishō Democracy proved fragile. From the late 1920s and particularly in the 1930s, a combination of domestic and international factors led to the erosion of liberal practices and the ultimate collapse of the Meiji constitutional system into authoritarianism and war.

Internal Factors:

• Economic Crisis: The Great Depression and the subsequent Shōwa Depression in Japan created widespread economic hardship and social unrest, discrediting the established political parties and fueling extremist ideologies.
• Rise of Militarism: The military, particularly the Imperial Army and Navy, grew increasingly assertive and autonomous. Invoking the Emperor's prerogative of supreme command (tōsuiken), they often acted independently of, and sometimes in defiance of, civilian government control. Incidents like the Manchurian Incident (1931) were largely engineered by military factions.
• Political Instability and Violence: Assassinations of political leaders (including Prime Ministers), attempted coups, and growing intimidation by ultra-nationalist groups created a climate of fear and instability, weakening parliamentary government.
• Decline of Party Cabinets: The convention of party cabinets broke down. "National unity" cabinets, often led by military figures or senior bureaucrats, became the norm, sidelining the political parties.

External Factors:

• Growing International Tensions: Japan's expansionist policies in Asia, particularly in China, led to increasing isolation and conflict with Western powers.
• Breakdown of Arms Control: The collapse of international naval arms limitation treaties contributed to a renewed arms race and emboldened militarist factions.

Constitutional Flaws Exploited:
The Meiji Constitution's inherent weaknesses were cruelly exposed and exploited during this period:

• The Emperor's Prerogatives: The military's ability to act under the guise of the Emperor's supreme command, without effective civilian oversight from the Cabinet or Diet, proved disastrous. The "dual structure" of government—civilian and military—each reporting directly to the Emperor, led to a lack of unified policy and accountability.
• Weak Protection of Rights: The "legal reservations" attached to subjects' rights meant that as authoritarian laws were passed, individual liberties could be, and were, systematically suppressed. The Peace Preservation Law (治安維持法 - Chian Iji Hō), initially aimed at communists, was expanded to crush all forms of dissent. Freedoms of speech, assembly, and the press effectively vanished.
• Limited Power of the Diet: The Diet was unable to act as an effective check on the executive or the military. Ultimately, the National Mobilization Law of 1938 granted the government sweeping powers to control the nation's human and material resources for the war effort, largely bypassing the Diet.

The journey from a constitutional monarchy with nascent parliamentary practices to a militarist, authoritarian state culminated in Japan's entry into the Pacific War and its eventual defeat in 1945, leading to the end of the Meiji constitutional order.

The Legacy: How the Meiji Era Continues to Inform Modern Japan

While the Meiji Constitution was superseded by the current Constitution of Japan in 1947, its nearly sixty-year history has left a lasting legacy that continues to inform, both directly and indirectly, modern Japanese governance and its legal and business environment.

1. The Strong, Professional Bureaucracy:
The Meiji government prioritized the creation of a highly educated, elite civil service to lead the nation's modernization. This tradition of a powerful and respected bureaucracy continues to be a significant feature of Japanese governance. For businesses, understanding the role, influence, and operational style of Japan's ministries and agencies remains crucial for navigating regulations, obtaining approvals, and engaging in policy discussions.

2. Historical Context for Executive-Legislative Relations:
Although the post-war Constitution firmly establishes parliamentary sovereignty, with the Cabinet collectively responsible to the Diet, the historical experience of a strong, often dominant, executive under the Meiji system provides a backdrop to contemporary discussions about the balance of power between the executive and legislative branches.

3. The Conception of "Public Interest":
The Meiji state often operated with a top-down approach to defining and pursuing the "national interest." While modern Japan is a democracy, the historical emphasis on a centrally defined public good can sometimes be discerned in how certain regulatory policies or large-scale projects are justified and implemented. Businesses may encounter this in sectors requiring significant government oversight or coordination.

4. Foundations of the Modern Legal System:
Japan's modern legal codes (Civil Code, Commercial Code, etc.), first developed during the Meiji era, were heavily influenced by European civil law systems, particularly German law. While these codes have undergone numerous revisions, their foundational structure and many core concepts trace their origins to this period. This civil law tradition continues to shape legal reasoning and practice in Japan, which can differ significantly from common law systems like that of the U.S.

5. Lessons from Constitutional Failure – The Strength of the Current Constitution:
Perhaps the most significant legacy of the Meiji Constitution is the set of lessons learned from its failings. The current Constitution of Japan, drafted under Allied occupation, directly addresses the weaknesses of its predecessor by:

• Unequivocally vesting sovereignty in the people.
• Providing extensive and robust guarantees for fundamental human rights, without the broad "legal reservations" of the Meiji era.
• Clearly establishing parliamentary supremacy and a cabinet system responsible to the Diet.
• Ensuring strict civilian control over the military.
• Strengthening judicial independence and establishing the Supreme Court's power of constitutional review.

For businesses, this means the current Japanese legal and political system operates on a foundation that is, by design, more democratic, rights-protective, and stable than its Meiji predecessor. This provides a more predictable and secure environment for investment and operations.

6. Continuity in Institutional Culture (Subtle Influences):
Beyond formal structures, certain institutional cultures or ways of thinking within government or established organizations may have subtle historical roots. Understanding that Japan's modern institutions were forged in an era with different constitutional values can sometimes offer insights into current practices or attitudes encountered in business or legal dealings.

Conclusion: Understanding the Present Through the Past

The Meiji Constitution was a landmark achievement in Japan's journey to modernity, a bold attempt to create a stable and strong nation-state. It facilitated remarkable progress in many areas. However, its structural imbalances, particularly the concentration of unaccountable power in certain institutions and the insufficient protection of individual liberties, ultimately proved to be its undoing, leading to tragedy.

For U.S. legal and business professionals, the story of the Meiji Constitution is more than a historical footnote. It provides a deeper understanding of the foundations of modern Japan, the evolution of its governance structures, and the values enshrined in its current democratic constitution. Recognizing these "echoes of the past" allows for a more nuanced appreciation of the complexities and strengths of Japan's contemporary legal and political system, which continues to shape the environment for international business and cooperation.