Inverted founding: Emperor organ theory, constitutionalism, and koku-min
| Author | Chungjae Lee,Stacey Liou |
| Published date | 01 April 2022 |
| DOI | 10.1177/1474885119882835 |
| Date | 01 April 2022 |
| Subject Matter | Articles |
Article EJPT
Inverted founding:
Emperor organ theory,
constitutionalism,
and koku-min
Chungjae Lee
University of California, Irvine, USA
Stacey Liou
University of California, Irvine, USA
Abstract
This article presents Minobe Tatsukichi’s emperor organ theory as a novel understand-
ing of the temporality of founding. In contrast to a conventional framework of founding
which legitimizes the constitution by postulating the pre-constitutional power of “the
people,” emperor organ theory invents “the people” out of the Meiji Constitution as a
democratically empowered subject to-come. In so doing, emperor organ theory calls
upon the transformation of shin-min (臣民), the presumed subject of the emperor, into
koku-min (国民), the people of this constitutional state. However, emperor organ
theory also highlights the contingency of founding moments: though koku-min emerged
through the Diet as a conceptually new political actor in Japan’s nascent constitutional
state, it never solidified its sovereign status as “the people.”
Keywords
comparative political theory, constitutionalism, emperor organ theory, founding
moments, Minobe Tatsukichi, temporality
Corresponding author:
Stacey Liou, University of California, 3151 Social Sciences Plaza, Irvine, CA 92697, USA.
Email: sliou1@uci.edu
European Journal of Political Theory
!The Author(s) 2019
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DOI: 10.1177/1474885119882835
journals.sagepub.com/home/ept
2022, Vol. 21(2) 345–367
Introduction
Japan during the Meiji period (1868–1912) witnessed a major political, economic,
social, and industrial revolution, emerging at the dawn of the new century as a
world power.
1
While the Meiji emperor presided over a period of modernization
and growth to which the Japanese still refer proudly, his son and successor Taish
o
was a decidedly less influential ruler. His poor health kept him from fulfilling
the duties expected of his role, and he increasingly delegated decision-making
authority to the Diet, the newly constituted legislature first convened in 1890
(Large, 1992: 11–13). The growth of party politics during this time, compounded
by the liberalizing forces of Japan’s increasing openness to trade and its intellectual
exchanges with European scholars, promoted “the greater political pluralism of
‘Taish
o democracy’” (Large, 1992: 13).
In the midst of this seismic change in Japanese politics and society, Japanese
intellectuals attempted to reconcile constitutionalism as a modern concept with
monarchy as a pre-modern political structure. Minobe Tatsukichi was a liberal
legal scholar whose emperor organ theory sought to do just that: the theory pos-
ited a constitutional state in which the emperor functioned as an organ alongside
the legislature as representatives of the Japanese people.
Partaking in a growing trend within constitutional studies of investigating non-
Western constitution-making processes (e.g. Arato, 2006, 2009, 2016, 2017; Bernal,
2017; Hahm and Kim, 2015; Olson, 2016),
2
in this article we explore Minobe’s
emperor organ theory as a noteworthy approach to “the paradox of founding.”
According to this paradox, “the people” as constituent power subvert the tradi-
tional authority of monarchy and originate a new, democratic order. However,
“the people” lack the authorization to do so because a legitimate first step in
founding a constitution requires legally acceptable authority that cannot exist
prior to constitutionalization. This conventional logic of the paradox of founding
posits the emergence of “the people” as constituent power and the founding of the
constitutional order as two temporally separate, sequential events.
By contrast, we argue that Minobe’s emperor organ theory founds “the people”
by reference to the constitution itself. “The people,” or koku-min, emerges only
after constitutionalization and its representation through formal political institu-
tions; as the meaning of its characters suggests, koku-min—koku for state and min
for people—is born within and from the constitutional state. Emperor organ theory
thus illustrates a model of founding in which “the people” does not originate the
constitutional order but is a future-oriented subject posited in the constitution
itself. Such an “inverted founding”—one in which a modern political subject
unfurls from the constitution—thereby complicates the familiar logic of founding
and attendant concepts of constituent power and democratic legitimation.
Though it does not solve the paradox of founding, we focus here on Minobe’s
emperor organ theory because it provides an intriguing and particularly illuminat-
ing non-Western example of inventing “the people” of the constitution, one which
differs from models of founding rooted in European history. To be sure,
346 European Journal of Political Theory 21(2)
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