Hozumi Yatsuka
Hozumi Yatsuka (穂積 八束, March 20, 1860 – October 5, 1912) He entered University of Tokyo 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.
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