Ceremony as the Expression of Institutional Identity — Minobe Tatsukichi and the View from International Law
Introduction: What a Letter of Credence Is Really Asking
When a foreign ambassador arrives in Japan, they present their letter of credence to the Emperor.
A grand palace hall, white gloves, formal dress. A solemn ceremonial scene. Anyone who has glimpsed it in a news broadcast has probably thought little of it — a quaint tradition, a diplomatic formality, nothing more.
But what is actually happening, in legal terms, at that moment?
The Vienna Convention on Diplomatic Relations (1961) establishes that an ambassador presents credentials to “the head of state of the receiving country,” and that this act formally constitutes the diplomatic relationship between the two nations. This is not mere pageantry. It is an act with binding effect under international law — the legal point at which one state formally recognizes the representative of another.
The Emperor performs this act under Article 7, Item 10 of the Japanese Constitution.
Which forces a question that rarely gets asked.
What does it mean for a “symbol” to authenticate a letter of credence? Article 4 of the Constitution specifies that the Emperor “shall perform only such acts in matters of state as are provided for in this Constitution and he shall not have powers related to government.” How can a legally powerless “symbol” stand at the legal origin point of an act with consequences under international law?
The mainstream of contemporary Japanese constitutional scholarship has never answered this question directly. More precisely: it has carefully avoided answering it.
Minobe Tatsukichi (1873–1948) almost certainly saw the question coming. His insistence, maintained until the end of his life, that “the Emperor is an organ of the state” was not the stubbornness of an old professor clinging to a theory past its time. It was a fundamental legal objection to the vacancy at the heart of the word “symbol” — a vacancy that, he believed, carried real danger.
This essay takes that question seriously, and attempts to illuminate the blind spot that Japanese constitutional scholarship has long preferred to leave in the dark.
I. What the Organ Theory Actually Said
To understand what is at stake, we need a precise account of what Minobe argued.
In his 1912 work Kenpō Kōwa (Lectures on the Constitution), Minobe drew on the state corporate theory of the German public law scholar Georg Jellinek to reread the Meiji Constitution. The core argument was simple: sovereignty belongs to the state as a legal person (a corporate entity), and the Emperor is the highest organ of that state, exercising sovereign power in accordance with the Constitution.
The Emperor is not the state itself. The Emperor is an organ of the state.
A brief note on the term “organ” is useful here, since it is a word of art in legal scholarship. In law, an “organ” refers to a body, office, or position that acts on behalf of an organization — deciding its will or carrying out its acts. A company’s board of directors is an organ of the corporation; a parliament is an organ of the state. The critical feature is that an organ’s acts are treated legally as acts of the organization itself, not of the individual who holds the position. And equally important: an organ is bound by the organization’s rules. A director cannot act outside the company’s articles of incorporation; a constitutional organ cannot act outside the constitution. To be “an organ” is, precisely, to be “under the law.”
The revolutionary power of this argument lay in what it achieved without changing a single word of the Meiji Constitution. If the Emperor is the state, the Emperor’s will stands above the law. But if the Emperor is an organ of the state, even the Emperor must operate within constitutional constraints. Imperial rescripts issued without ministerial countersignature become constitutionally invalid. The independence of the supreme command becomes legally challengeable. The logic of constitutionalism — that no one is above the law — could be imported into a constitutional order that seemed to preclude it.
The organ theory was the theoretical foundation of Japanese constitutionalism. This is why it was widely embraced during the Taishō Democracy era, and why by the 1920s it had become, in effect, the official constitutional doctrine of the Japanese state. Emperor Hirohito himself is said to have accepted it as natural.
Then, in 1935, a coordinated political assault by the military, right-wing organizations, and the Seiyūkai party destroyed it. Minobe was accused of lèse-majesté. His books were banned. He was forced to resign from the House of Peers. The following year, a right-wing assailant broke into his home and shot him, leaving him severely wounded.
The essential point is this: the suppression of the organ theory was not the correction of a scholarly error. It was a political purge. The goal was not to refute Minobe’s legal argument on its merits — no serious counterargument was ever mounted — but to demolish the theoretical pillar of constitutionalism itself. What followed — the de facto repudiation of the Kellogg-Briand Pact, withdrawal from the League of Nations, all-out war — can be read as the consequence of a logic that placed the Emperor above the binding force of international treaties.
Minobe lived to witness this entire arc.
II. The Postwar Settlement and the Question It Sidesteps
When constitutional revision became unavoidable after Japan’s defeat, Minobe was reluctant. He believed that returning to the state corporate theory could achieve democratization within the framework of the Meiji Constitution, without the rupture of a new document.
History ignored him. In 1946, the Constitution drafted on the basis of the MacArthur draft was promulgated. The Emperor became a “symbol.”
Postwar constitutional scholarship theorized this transformation through Miyazawa Toshiyoshi’s “August Revolution” thesis: the acceptance of the Potsdam Declaration constituted a revolution that transferred sovereignty to the people, and the new Constitution was the legal expression of that revolution through the amendment procedures of the old Article 73. The discontinuity between imperial sovereignty and popular sovereignty was thus theoretically secured.
From this, mainstream scholarship drew its conclusion: the organ theory had lost its foundation. The Emperor was no longer the highest organ exercising sovereign power — he was a “symbol,” a categorically different kind of constitutional entity. The organ theory had served its historical purpose and could be retired.
The lineage of Miyazawa → Ashibe Nobuyoshi → Takahashi Kazuyuki has carried this settlement forward as the dominant tradition in Japanese constitutional law.
The account is coherent on its own terms. But it quietly sidesteps one question.
What is the “symbol” under international law?
Mainstream scholarship does not ask this. It treats the Emperor’s legal status as a matter of domestic constitutional law alone, never examining the interface with the international legal order. Why that omission is significant is the subject of the next section.
III. The Cabinet Legislation Bureau’s Candid Admission
It turns out that the Japanese government itself has half-answered the question mainstream scholarship avoids.
Before the constitutional investigation committee of the Diet, the Cabinet Legislation Bureau offered this assessment of the Emperor’s status: “Although the Constitution contains no provision defining a head of state, there is a view that even an entity lacking substantive powers of governance may be regarded as a head of state if it holds the position of the nation’s symbolic head. Since the Emperor is the symbol of Japan and, in a limited sense, represents the nation in diplomatic affairs, the government considers it unobjectionable to say that the Emperor is the head of state.” (June 6, 2001)
“Represents the nation in diplomatic affairs.”
That phrase cracks the wall mainstream scholarship has built.
Under international law, the entity that acts on behalf of a state is an organ of that state. Not a representative in the loose sense, not a symbol, not a figurehead — an organ. “Representing the nation” means that the act is legally attributed to the state, not to the individual who performs it. When the Emperor authenticates a letter of credence, that act is not a private act of a symbol; it is an act of Japan as a state, carrying legal consequences in international law.
The Cabinet Legislation Bureau reaches for the politically neutral language of “head of state” to soften the conclusion. But translated into legal terms, the conclusion is this: “The Emperor, at least under international law, functions as an organ of Japan as a legal entity.”
Is that not precisely Minobe’s formulation?
The mainstream treats “symbol” and “organ” as mutually exclusive categories. But the government’s own logic shows they are not. Even a symbol can represent the nation in diplomatic affairs — that is, function as an organ. Minobe’s insistence, under the current Constitution, that “the Emperor is an organ,” was not anachronism. It was an honest refusal to pretend that a contradiction did not exist.
IV. Ceremony Is Not the Negation of Institutional Identity — It Is Its Expression
Here is the deepest blind spot in mainstream constitutional scholarship.
The inference that “the Emperor’s acts of state are ceremonial and formal, therefore the Emperor has no institutional character” is wrong as a matter of international law. The truth runs in precisely the opposite direction. Ceremony is the form through which institutional identity is expressed.
Consider the comparative constitutional evidence.
Every autumn, King Charles III delivers the King’s Speech at the State Opening of Parliament. He arrives by white carriage, takes his seat on the throne wearing the Imperial State Crown, and reads aloud from a text written entirely by the Cabinet. Not a word of the speech represents his personal views. The act is wholly formal, wholly ceremonial, and in substantive terms is simply the government’s legislative program read in the monarch’s voice.
And yet no one in British constitutional law argues that the monarch is therefore not an institutional actor. The monarch is understood to be a constitutional organ through which governmental authority is expressed and legitimized. The ceremonial character of the act does not negate the institutional character of the role — it is the institutional character of the role.
Sweden’s 1974 Constitution makes this most explicit. The monarch performs no governmental functions whatsoever. Every last power has been transferred to the Speaker of Parliament and the Cabinet. Yet the monarch remains a constitutionally defined organ of the state. The same is true in the Netherlands, Belgium, Norway, and Denmark: in every constitutional monarchy, the monarch is a “ceremonial organ” — explicitly, constitutionally, unambiguously an organ, precisely because the acts performed are ceremonial.
Japan’s “symbol” stands alone in constitutional theory: the only monarchical institution in the democratic world classified as not an organ because its acts are ceremonial. This is, from a comparative constitutional standpoint, a highly anomalous construction.
Turn now to the list of imperial acts of state under Article 7 of the Japanese Constitution: promulgation of constitutional amendments, laws, cabinet orders, and treaties; convocation of the Diet; dissolution of the House of Representatives; proclamation of general elections; attestation of the appointment and dismissal of ministers of state; authentication of full powers and letters of credence of ambassadors and ministers; authentication of instruments of ratification and other diplomatic documents; receiving foreign ambassadors and ministers.
Focus on the authentication of instruments of ratification.
To authenticate an instrument of ratification is to confirm that a treaty now carries the formal legal force of Japan as a state. If this act is performed by a “symbol” floating in legal space without institutional grounding, the domestic legal foundation of treaty obligations becomes theoretically unstable.
Article 98, Paragraph 2 of the Constitution provides: “The treaties concluded by Japan and established laws of nations shall be faithfully observed.” The subject obligated to “faithfully observe” is “Japan.” The legal identity of the entity that authenticates “concluded” treaties is therefore directly relevant to the basis of that obligation.
The organ theory resolves this cleanly: the Emperor, as a constitutional organ, authenticates treaties under the advice and approval of the Cabinet; Japan, as the treaty party, bears the obligation of faithful observance under Article 98(2). The logic holds together.
The “symbol” theory leaves the connection uncertain.
V. What History Proved
Abstract argument alone may not carry conviction. The historical sequence deserves examination.
In 1928, Japan signed the Kellogg-Briand Pact — the international treaty by which signatory nations renounced war as an instrument of national policy.
Under the organ theory’s construction, “Japan” as a legal entity is bound by that treaty. The Emperor, as the highest organ, must operate within constitutional and treaty constraints. Even the independence of the supreme command becomes subject to treaty law. The logic is coherent.
What happened after the organ theory was destroyed?
The Manchurian Incident of 1931. Withdrawal from the League of Nations in 1933. Full-scale war with China from 1937. War with the United States from 1941. Every step was carried out under a logic that placed the Emperor’s supreme command above international treaty obligations — that kokutai (the national polity) could supersede international law.
Under the divine-sovereignty construction, the Emperor’s authority is hierarchically superior to treaty obligations. Since treaties were concluded through imperial sanction, a change in “imperial will” could in principle invalidate them. This is a direct contradiction of the foundational principle of international law: pacta sunt servanda — treaties must be kept.
Minobe’s attachment to the organ theory may have been, in part, an awareness of where the alternative logic would lead. Without the framework of a state as a legal person bearing treaty obligations in good faith, Japan could not be a reliable member of the international legal order.
The Preamble and Article 98(2) of the postwar Constitution can be read as the institutional response to that failure. The Preamble’s declaration that Japan will “trust in the justice and faith of the peace-loving peoples of the world” is not abstract idealism — it is a specific answer to the experience of a nation that broke its treaty obligations and went to war. The core of that answer is the proposition that Japan, as a state, acts in good faith as a treaty party.
The organ theory was the attempt to build that proposition into the constitutional order under the Meiji Constitution. The postwar Constitution’s Preamble and Article 98(2) represent its belated institutional achievement.
VI. The Political Danger of “Symbol”
There is a second reason Minobe remained uncomfortable with the concept of “symbol” throughout his later life: its political plasticity.
A legally empty concept can be politically refilled.
“Symbol” carries no intrinsic content in law. Symbol of what? In what manner does one symbolize? What counts as a symbolic act? None of these questions is answered by the Constitution. All are left to interpretation.
This vacancy invites colonization from multiple directions.
Consider the argument that because the Emperor is the symbol of Japanese culture and tradition, the performance of Shinto rituals in public capacities is naturally a symbolic act. Or the argument that because the Emperor is the symbol of national unity, political utterances — the “imperial addresses” (o-kotoba) — fall within constitutionally permissible symbolic activity. Or the argument, recurring in conservative constitutional revision proposals, that the symbol of the nation should be explicitly designated as head of state.
In 2016, the then-Emperor’s public address signaling his desire to abdicate divided constitutional scholars and commentators sharply. For some, it was an unconstitutional transgression into political speech, a violation of the Emperor’s constitutionally defined passivity. For others, it was the highest expression of the Emperor’s symbolic role — defending the Constitution by embodying it. The disagreement has never been resolved.
It has not been resolved because “symbol” provides no answer. The concept’s legal outline is too indistinct to adjudicate competing claims.
The organ theory would resolve it. “The Emperor is a constitutional organ whose authority is limited to the acts of state enumerated in the Constitution; outside that domain, neither political acts nor cultural acts may be performed in the name of the organ.” The boundary is clear.
Crucially, the organ theory does not diminish the Emperor. The opposite is true. By providing legally clear contours, it protects the institution from the unlimited expansionary potential that the poetic language of “symbol” makes possible — the very expansionary potential that, in prewar Japan, enabled the concept of imperial sanctity to override constitutional and international constraints.
From an international perspective, a constitutionally grounded understanding of the Emperor as an organ — bound by the Constitution, operating within defined limits — is itself a declaration of Japan’s commitment to the rule of law and to faithful treaty observance. It tells the world: the entity at the head of Japan’s state ceremonies operates under law.
VII. A Question for Contemporary Constitutional Scholarship
Hasebe Yasuo (Waseda University), in a 2007 essay, took a nuanced position on the organ theory — defending its logic in one respect while adding significant qualifications in another. Ishikawa Kenji (University of Tokyo) has pursued a systematic historical and theoretical reassessment of the organ theory and its suppression, particularly in work marking the eightieth anniversary of the 1935 incident.
But the mainstream constitutional law textbooks have not followed. They have not subjected the proposition “the symbol is not an organ” to scrutiny under international law. They have not asked, in comparative constitutional terms, how Japan’s “symbol” differs from the constitutionally explicit “ceremonial organ” that characterizes every other constitutional monarchy in the democratic world. They have not connected the act of treaty ratification authentication to the question of the Emperor’s legal identity.
Why not?
Almost certainly because of political sensitivity. The proposition “the Emperor is an organ” is vulnerable to attack from the right as disrespectful — a diminution of imperial dignity — and from the left as a legitimation of the imperial institution itself. A legal argument that can be assailed from both sides simultaneously is, professionally speaking, uncomfortable territory.
But the task of legal scholarship is not the management of political discomfort. It is the precise examination of concepts and the honest prosecution of argument.
What Minobe suffered in 1935 was not, as the phrase “political suppression” might suggest, a single blow. It was a triple erasure.
First, intellectual erasure. A scholarly doctrine that had functioned as the governing constitutional theory of Japan for over thirty years was invalidated not by superior argument but by political decree — the branding of the organ theory as incompatible with the kokutai. Minobe was summoned before the House of Peers to “clarify” his own scholarship, as if a scholar defending his published work required official permission to do so. His books were banned. He never returned to the classroom. An entire intellectual project was extinguished by power.
Second, social and civic erasure. Charged with lèse-majesté, forced to resign his parliamentary seat, labeled publicly as a man who had dared to call the Emperor a “mere organ” — the stigma was not confined to academic circles. Right-wing organizations mounted sustained campaigns of denunciation. His standing as a public figure was destroyed.
Third, the attempt at physical erasure. In 1936, a right-wing assailant broke into his home and shot him. He survived, severely wounded. His life was targeted.
After all of this, Minobe did not alter his position. In the final years of his life, under a constitutional order in which the Emperor had been reconstituted as a “symbol,” he still would not let go of the claim that the Emperor is an organ of the state. This was not stubbornness. A question that remains irresistible after that degree of violence is a question of fundamental importance. “A legally empty concept is dangerous.” That was the conviction he defended with his life.
Ninety years later, the warning remains in force.
Conclusion: The Weight of Ceremony, the Weight of the Question
Return, one last time, to the ceremony of credential presentation.
A foreign ambassador stands before the Emperor and presents a letter of credence. At that moment, a formal diplomatic relationship between Japan and the sending state is constituted. International legal effect is produced.
To call this “mere ceremony” is easy. But ceremony is form, and form is the carrier of legal effect. Legal effect without form does not exist. The weight of the ceremony is the weight of the legal consequences it bears.
Ceremony is not the negation of institutional identity. Ceremony is the form through which institutional identity is expressed.
If that proposition is taken seriously, the claim that Minobe Tatsukichi maintained under the current Constitution — that the Emperor is (a constitutionally limited) organ of the state — cannot be dismissed as simply as the mainstream has wished. It survives as a constitutionally honest reading, one that is consistent with the reality of international law, and with what Japan’s own government quietly concedes when it acknowledges that the Emperor “represents the nation in diplomatic affairs.”
The question that mainstream constitutional scholarship has preferred not to ask deserves to be asked plainly.
What is the “symbol,” in international law? The entity that authenticates instruments of ratification, receives letters of credence, and authenticates documents of full powers — what is its legal identity within the logic of the international legal order?
Without answering that question, can Japanese constitutional theory claim to be complete?
The question Minobe Tatsukichi left behind remains, seventy-seven years after his death, open before us.
This essay is written for the purposes of critical examination of constitutional doctrine. It does not advocate for any particular political position. The question of the organ theory’s contemporary relevance is a question of legal theory, entirely separate from any debate about the institution of the imperial system itself.