Kant’s rechtsstaatand its reception in Japan

• Main Author: Hasebe, Yasuo
• Other Authors: Asian constitutional law recent developments and trends : Vietnam, Hanoi, 6th and 7th December 2019. Volume 1
• Format: Conference or Workshop Item
• Language: Vietnamese
• Published: Đại học Quốc Gia Hà Nội 2020
• Subjects: objective legal order; Rechtsstaat; The Kantian Rechtsstaatin Japan
• Online Access: http://repository.vnu.edu.vn/handle/VNU_123/94782
• Institution: Vietnam National University, Hanoi

Minobe tried to purify the public law theory of Japan of foreign factors like political, historical and metaphysical ideas. What he employed as its instrument was the state=corporation doctrine, which was a legacy of the Kantian legal theory. Unconsciously, he endeavoured to realise a Rechtsstaatthat is, according to Kant, an unrealisable ideal, to which humanity should eternally strive to get closer. Minobe’s disciples regarded the state - corporation doctrine as an old-fashioned foreign device, whose utility lapsed once the popular sovereignty principle was established by the new constitution. They did not grasp the lineage of thoughts behind the public law theory that Minobe imported from Germany, including the Kantian Rechtsstaat. Nor were they concerned about whether a coherent legal doctrine can be constructed at all without the aid of the state - corporation doctrine. And this attitude is still prevalent in Japan. In my view, the same applies to legal theory. When some legal concepts or doctrines are claimed as being ‘superseded’ or ‘surmounted’, we should think twice about whether the claim is warranted by sufficient reason; in particular, when the genealogy of the concepts or doctrines are forgotten and are not inquired into seriously.