In this article, I try to investigate how the judicial system was formed in the conflict regarding differing constitutional conceptions between the Meiji government and Jiyu-Minken Movement from the late 1870's to the 1880's. I examine the judicial reforms in 1876·77 and the debate about this in the Genro-In (Senate) in order to investigate the formation of judicial system.
The Meiji government tried to gain the people's confidence in the authority of the courts and carry out smoothly the policies of Tiso-Kaisei (the Land Tax Reform) and that of enhancing the wealth and military strength of Japan by the separation of justice and administrative business through the establishment of District Court in September 1876. However this separation was incomplete because the Inner Cabinet (Naikaku) administered arbitrarily the affairs of state on the whole that is, it intensified the right of the Minister of Justice to intervene in trials in 1876·77 placing the courts under the Inner Cabinet's control. This could have brought about the loss of the people's confidence in the judgements given by such courts and have made the people's disapproval of the policies change into the disapproval of the existing structure.
This problem was pointed out by the debate of Genro-In in 1877. It insisted on solidifying the position of the judiciary through the shared control between the three branches of government. This insistance involved two constitutional conceptions in opposition. One of these was the conception which would allow for direct government by the Emperor (Tenno). The other was the constitutional formation which would solidify the judiciary by ensuring that it was the means which would secure the rule of law.
Considering the above-mentioned facts, we can get a clue to the problem how the judicial system under the Constitution of the Empire of Japan was chosen from the various choices in the 1880's.
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