Tanaka K¨tar¨ (The Fighting Founder of the Judiciary and an Explorer of World Law)
320 pages, Paperback Pocket Edition
Japanese
November 21, 2022
978-4-12-102726-9
CHUOKORON-SHINSHA
Tanaka K¨tar¨ (1890–1974) was a professor at the Faculty of Law at Tokyo Imperial University, a scholar of commercial law, and a legal philosopher known for his Theory of World Law. Moreover, as director of the School Education Bureau of the Ministry of Education, Minister of Education, and chair of the Education Committee of the House of Councillors after World War II, he was engaged in educational reform, including the enactment of the Basic Law on Education. Furthermore, as the Chief Justice of the Supreme Court, which was a post he held for ten years, thus setting a record not beaten to this day, he established judicial power under the Constitution of Japan. He was also the first postwar Japanese judge of the International Court of Justice.
In terms of playing a central role in the legislative, administrative, and judicial branches, Tanaka was prominent in postwar politics not only as a legal expert but also as a political actor. Moreover, Tanaka had stated that there exists “theoretical unity” regarding the independence of institutions for universities, education, and the judiciary. However, Tanaka did not clarify what that “theory” is. Therefore, by tracing the course of his life, this volume attempts to elucidate this “theory” of independence in various institutions. By clarifying how Tanaka acted in each of these institutions, it seeks to answer the question “How is it possible for an institution to become independent in modern Japan?”
Looking back, Tanaka has been understood in a variety of ways, by examining his immersion in prewar Catholic thought as well as the research on legal philosophy, university history, postwar educational reform, and the Supreme Court, especially the Sunagawa case and the Matsukawa case. However, amid all this, Tanaka’s goals have been disregarded.
What is revealed from writing a biography about Tanaka? Tanaka tried to defend institutional independence by boldly fighting at certain moments, while otherwise behaving passively with regard to external forces. Be it the military in the middle of the war, the occupying forces after the war, or the conservative government after occupation ended, politics was constantly trying to interfere within independent institutions. Political movements against authority also pressured these independent institutions to avoid aligning themselves with the government.
Moreover, something that has not been pointed out thus far is that Tanaka distanced himself from arguments about defending the imperial system linked to the family system and the natural-law character of the Imperial Rescript on Education that emerged in the wartime period with the enactment of the Constitution of Japan. As Chief Justice of the Supreme Court under the Constitution of Japan, Tanaka was markedly anti-communist, but he also harshly criticized restorationist efforts to revert to the prewar system. Moreover, from the perspective of his Theory of World Law, he began to consider abolishing the era names as a member of the House of Councillors. Far from being reactionary, his aim was to ensure the steady operation of the political system under the Constitution of Japan.
This required the establishment of institutions that were independent of both political and social power. However, that also meant that they would be subject to condemnation and criticism from both the political arena and society. This is the reason Tanaka has been both slandered and praised to this day.
Tanaka, continuously facing criticism, was supported from within by his strong belief in both globalism and the desire for peace, embedded in world law. The 70-year-old Tanaka, born in one of the countries defeated in World War II, was appointed as a judge of the International Court of Justice. During his nine-year tenure, he was extremely well known for his dissenting opinion in the South West Africa case, in which apartheid was a point of contention.
The judgment, which was conciliatory to apartheid, had isolated the International Court of Justice from the international community, and ICJ sought to bolster its presence in the UN system by revising its internal rules and attending the UN General Assembly. Tanaka, as he did during his time as Chief Justice of the Supreme Court, sought to re-establish institutional independence when it was wavering.
Until now, Tanaka has been largely misunderstood, and our understanding has been only fragmentary. Through this volume, it is hoped that Tanaka’s thoughts and actions can be reframed in the context of political, legal, and social history, thus deepening research in various fields.
(Written by MAKIHARA Izuru, Professor, Research Center for Advanced Science and Technology / 2023)
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