the Emperor Organ Theory (天皇機関説)
The Emperor Organ Theory (Tenno kikan setsu) is a theory from the Study of Constitution about Emperor, and it was established under the Constitution of the Empire of Japan.
It suggested that the state, as a public authority, is sovereign, and Emperor exercises sovereignty as the highest organ while being given hohitsu (an advice on affairs of state, assistance, or counsel) by other organs such as Cabinet
Its basis is on the state authority theory mainly suggested by Georg Jellinek, a German public lawyer.
The Emperor Organ Theory had been regarded as a popular theory in the Study of Constitution over 30 years from the end of Meiji Period, and it was a basic theory related to management of politics. A constitutional lawyer, Toshiyoshi MIYAZAWA, summarizes the Emperor Organ Theory as follows.
The Theory of the State includes the state authority theory. In this theory, a state is regarded as one of legal public authorities. Assuming a state is a public authority, monarchs, diets, and courts are regarded as organs of a public authority, the state.
If you apply the theory to Japan, the Japanese Nation is a legal public authority, and this makes Emperor an organ of Japan, the public authority
This is what is called the Emperor Organ Theory, or simply the Organ Theory.
(* Bold characters described with dots in the original.)
In the Constitution of the Empire of Japan proclaimed in 1889, Emperor's position was defined as follows.
Article 1 of the Constitution of the Empire of Japan: The Empire of Japan shall be reigned over and governed by a line of Emperors unbroken for ages eternal (imperial sovereignty). Article 4 of the Constitution of the Empire of Japan: The Emperor is the head of the Empire, combining in Himself the rights of sovereignty, and exercises them, according to the provisions of the present Constitution (governing right). There were mainly two school sects regarding interpretation and operation of these provisions and the whole constitution.
The Emperor Organ Theory (also called State sovereignty theory, State authority theory) group - the Constitutional school
People in the Constitutional school such as Tatsukichi MINOBE and Soichi SASAKI focused on the constitutionalism centered around the diet to establish the theory. Concretely, it is interpreted that they attach more importance to governing right than to imperial sovereignty and even a monarch's actions are limited by "the articles of the constitution (diet)."
The Imperial Sovereignty Theory group - the Monarchism school
the monarchism school (also called Divine right school) consisting of Yatsuka HOZUMI and Shinkichi UESUGI, etc. who established the theory by focusing on 'monarchism'
Concretely, they put importance on imperial sovereignty, and they interpret the emperor's actions are not limited in principle irrespective of "provisions in the constitution."
(In the Emperor Organ Theory, it was often claimed to have been including autocracy.)
These schools conflicted with each other between Uesugi and Minobe over the Emperor Organ Theory, and then, in and after the period of Taisho Democracy, the constitutional school had an advantage and it became a prevailing orthodoxy. However, due to the incident of the Emperor Organ Theory, some of Minobe's books were banned under the publishing law, and the government effectively made an official evaluation of the theory in the government announcement.
As it is mentioned in the next clause, even in the Emperor Organ Theory, it is considered that the emperor has sovereign power with reference to a right to make a final decision on state's intentions, and the emperor's authority hasn't been denied. Attention should be given to the fact that the Emperor Organ Theory just treated of the thesis that how 'a constitutional monarch' should be. In modern age, constitutional government is meant to control monarch's actions by a diet (legislature) based on predetermined provisions in the constitution. On the contrary, pre-modern autocracy is meant to rule a nation without establishing a constitution, following laws, and considering subjects. One year after the proclamation of the constitution, the Imperial Diet session was opened, and Japan became a constitutional monarchy both in name and reality through the establishment of the party government in and after the Taisho Democracy.
However, it seems that the idea of the constitutional monarchy didn't prevail to the public (this was obvious from the difference in reactions between of the public who had read Minobe's explanation on newspapers and of the House of Peers [Japan]), and since the theory of the imperial sovereignty got an advantage after a series of turmoil, these people tended to advocate that the idea of the constitutional monarch was 'uncritical acceptance of western theory (summarized from "Kokutai no Hongi" [the primordial doctrine of the national]).'
Lack of political sense of Japanese people was increased because Seron (grass-roots opinion) grew into Koron (public opinion). Soon after, the government had no other way but to take actions (government announcement), and the thread of life of the constitutional school and the Emperor Organ Theory, which had been a main stream, was broken.
Various sovereign power theories
Color-coded world map for comparison of state regulations
Since the word 'sovereign power' can be interpreted in various means, it is necessary to be careful.
Sovereign power as a sacred national governing authority
In 'the national sovereignty theory,' the answer to a question as 'who has sovereign power as governing right?' is the state. Even in our time, the state sovereignty theory is a popular theory in terms of sovereign power in this means.
For example, though people recalled the Constitution of Japan, they have to conform to the provisions and their actions are limited. Irrespective of monarch or general people, violating it means a violation of sovereign power, and this makes the constitutional system collapse (in this case, sovereign power means state right which shouldn't be [legally] violated in and outside of Japan, and an expression like 'infringement of Japanese sovereignty' is often used in the case of intrusion into territorial waters or abduction of Japanese civilians to other country).
Sovereign power as a right to decide state politics
On the other hand, in 'monarch sovereignty,' the answer to a question like 'who has sovereign power as the highest right to decide in the state?' is 'monarch,' and in 'popular sovereignty,' the answer is 'nation's people.'
It is necessary to be careful because the word sovereign power used in this mean is totally different from that for the state sovereignty theory.
For example, in the current Constitution of Japan, it is mentioned that 'sovereign power resides with the people' in its Preamble and 'the emperor' is 'the symbol of the State and of the unity of the people' in Article 1, however, it is actually regarded as 'constitutional monarch' (refer to Japanese Nation). Interpreting these issues are difficult, however, since the Constitution of the Empire of Japan clearly describes as 'combining in Himself the rights of sovereignty, and exercises them (Article 4),' sovereign power resides with monarch (in Article 4, sovereignty means the highest right to decide in the nation since "combining" means seizure of politics).
The state sovereignty theory balances between the monarch sovereignty and the popular sovereignty. In the state sovereignty theory, any state has its sovereign power from a viewpoint of sovereignty.
The Emperor Organ Theory of Tatsukichi MINOBE calls upon state sovereignty from a viewpoint of sovereignty, and monarch sovereignty (imperial sovereignty) from a view point of the highest right to decide in the nation. That is, constitutional monarchy state was mentioned. At that time, parliamentary Cabinet system had been already put into effect in Japan, but in modern age, constitutions have been effective in most states (excluding those colored in purple in the illustration on the right).
Development of the Emperor Organ Theory
For the interpretation of the Constitution of the Empire of Japan, the imperial sovereignty theory suggested by Yatsuka HOZUMI, a professor of the University of Tokyo, was dominating and theoretically supported the autocratic ruling structure (what is called the doctrine of superiority) by domain clique bureaucrat. The imperial sovereignty theory is a theory to proclaim the emperor has sovereign power meaning sovereignty. In addition, the imperial sovereignty theory was also regarded as 'oracle sovereignty' theory which means that sovereign power resides with 'the Founders of the Imperial Family,' ancestor of the emperor ultimately.
On the other hand, based on the state authority theory in which sovereignty resides with the state as a public authority, Kitokuro ICHIKI, a professor of Tokyo Imperial University, proclaimed the Emperor Organ Theory in which the emperor was defined as the highest position in state authorities and the emperor's divine superiority was denied. Of course, since it was to respect authority of the emperor, the highest organ in the state, he was given important posts from the bureaucracy power which was trying to compromise with the political party after Japanese-Sino War.
After the Russo-Japanese War, the Emperor Organ Theory was developed in a direction enhancing a role of the diet by Tatsukichi MINOBE, a follower of Ichiki and a professor of Tokyo Imperial University. In short, he proclaimed that the diet, a representative of nation's people, can restrain the emperor's will via the Cabinet by introducing a theory of Jellinek who reproduced the state authority theory as a theory against strengthening of monarchy in Germany in and after the period of Otto von Bismarck. Minobe's theory gave a theoretical foundation to the party government.
Minobe's Emperor Organ Theory has the following theoretical construction in general.
A state is a group and it has legal character.
Sovereignty is a right which resides with a state as a public authority.
A state acts via organs, and in Japan, the highest organ is the emperor.
Sovereign power, the highest right to deal with sovereignty, resides with the emperor.
Differences in the structure of the highest organ lead a distinction of constitution.
('Fundamental Materials on Meiji Constitution and the Constitution of Japan' created by House of Representatives Constitution Research Council secretariat)
In the early Taisho Period, there was an argument between Shinkichi UESUGI of Tokyo Imperial University, a follower of Hozumi, and Minobe.
Though they both proclaimed imperial governing by the emperor, Uesugi mixed the emperor with the state and said 'the emperor rules for himself' and 'he can exercise governing right at his will without hohitsu by Minister of State', whereas Minobe said 'the emperor rules for nation's people, not for himself.'
After the argument, Soichi SASAKI, a professor of Kyoto University, proclaimed almost the same theory, and Minobe's Emperor Organ Theory became a popular theory in academic circles. Along with the democracy, the Emperor Organ Theory supported practices in the parliamentary Cabinet system, and party government and Taisho Democracy, and also because Minobe's book became a bible of examinees for high civil officers, the theory became a constitutional doctrine approved by the state from the middle of Taisho period through early Showa period. The Emperor Showa, who was Sessho (emperor's chief advisor) and also the emperor at that time, accepted the Emperor Organ Theory as a matter of course.
The incident of the Emperor Organ Theory
The Emperor Organ Theory, which became a popular theory of the Study of Constitution, focused on roles of the diet and supported the way of party government and constitutional politics. However, when malfunction of the party government became pronounced and the military which wasn't controlled by the diet gained power, the militarism was insisted and the concept accepting the emperor as holy writ prevailed. When Prime Minister Tsuyoshi INUKAI was assassinated in the May 15th Incident in 1932 and the way of constitutional politics was collapsed, the trend was strengthened. In 1935, the Emperor Organ Theory was officially driven out in the House of Peers with political strife between parties involved, and Minobe, who was an advocator of the theory and a councilor by Imperial command, addressed the Diet in his own defense. He ended up being inspected on suspicion of lese majesty (suspension of prosecution) and resigned as a member of the House of Peers. His three books, "Kenpo Satsuyo" (Compendium of the Constitution), "Chikujo Kenpo Seigi" (Additional Commentaries on the Constitution), and "Nihonkoku Kenpo no Kihon Shugi" (Fundamental principle of the Constitution of Japan) were banned for violation of Publishing Act.
Okada Cabinet at the time declared in August 3 that 'saying the sovereignty didn't reside with the emperor and the emperor was an organ to exercise it was an incomparable action to damage the primordial doctrine of the fundamental character of the nation.'
Furthermore, on October 15 of the same year, he published a government announcement saying that 'the Emperor Organ Theory, as it is called, damaged the primordial doctrine of our divine fundamental character of the nation and this should be eliminated' to officially eliminate the Emperor Organ Theory, and the instruction of it was also prohibited.
The view of the Emperor Showa
The Emperor Showa himself was pro-Organ Theory, and he worried about freedom of learning being violated by the elimination of Minobe. For the government announcement, he distrusted the military and said 'peace of mind through faith or ascetic practice wouldn't be obtained' ("HONJO Shigeru Nikki" (Shigeru HONJO's Diary).
In addition, he told Kantaro SUZUKI, a head of Grand Chamberlain, as follows:
I can still understand if they argue about which of monarch or state has sovereign power, but it's really nonsense to discuss whether the Organ Theory is good or bad.'
For me, I think state sovereignty is better than monarch sovereignty, but for a country like Japan where there is no difference between the monarch and state, it doesn't matter.'
… Though people talk various things about Minobe, I don't think he is disloyal at all.'
How many people like Minobe do you think are there in Japan today.'
It's a shame to ride a scholar like him out on a rail.' ("Duke Saion-ji and Political Situation")
The Emperor Organ Theory after the war
After the World War II, Minobe violently disagreed on a constitutional amendment while a trend toward constitutional amendment was growing. All constitutional drafts made by the government, Liberal Party (Japan), and Japan Socialist Party were structured based on the Emperor Organ Theory. However, with the enactment of the Constitution of Japan which doesn't set the emperor as the highest organ and is based on the principle of popular sovereignty, the Emperor Organ Theory ended its duty as an interpretation theory.