Tanaka Kōtarō and World Law: Rethinking the Natural Law Outside the West
by Kevin M. Doak.
Palgrave Pivot, 2019.
Hardcover, 127 pages, $67.
Reviewed by Jason Morgan
The word “globalism” has become a—perhaps the—shibboleth of our age. Whatever the issue, globalism is the theme. The 2016 U.S. presidential election stands out for Americans, of course. A woman whom many saw as the living embodiment of well-connected extralegalism, transnational personal enrichment, and self-serving truckling to all and sundry checkwriters from Abu Dhabi to Wall Street—principles and conscience be damned—was locked in mortal combat with a man who proudly claimed to be a citizen of just one country, and not of the whole world. The contest came down to globalism vs. anti-globalism, all of the other considerations notwithstanding.
Indeed, as the undergirding of America falls apart while jet-setters keep racking up more and more records of excess, globalism has only grown in salience as a political sticking point. My ramshackle home in Alabama may be mortgaged to well above its chimneytop, but mansions along the Pacific Coast Highway and apartments on Fifth Avenue are trading hands for hundreds of millions of dollars. “Working-class unemployment” is no longer a paradox or even an irony but a permanent feature of the post-industrial heartland. Hecatombs of opioid overdoses gut rural communities—a much grittier side of drug abuse than for the celebrity in a hundred-thousand-dollar stint at a resort for rehab. And for those who can’t afford private schools, public education has been almost wholly abandoned to squads of political stormtroopers whose symbol should be, not the polished red apple, but the hand grenade. Americans who ride the globalist jetstream get rich; Americans who stay home and work for a living get the shaft.
This is hardly exclusive to America. Globalism as the separator of, well, maybe not the sheep from the goats, but certainly of the schmucks from the Gotrocks, is, as might be expected, a global phenomenon. In Hungary, for example, home of uber-globalist (and Hillary supporter) George Soros, globalism has become so unwelcome that its offshoot ideologies are banned in the public square. Hungarian universities no longer teach gender, for instance. And with good reason. When hardline communist Béla Kun became leader of the Hungarian Soviet Republic in 1919, one of his first acts was to appoint militant Marxist György Lukács as Deupty Commissar for Culture. Lukács’s first act, in turn, was to make the teaching of gender ideology mandatory, beginning with kindergarten. Thus confused, Lukács and Kun reasoned, Hungarians would be unable to resist the onslaught of globalism non pareil, namely, the Comintern (Communist International), the vanguard of Leninist socialism sweeping away tradition and stability in its wake.
The word “globalism,” then, is freighted with heavy baggage. It is rightly tied in the imagination with the Category 5 hurricane of social destruction and socialist misery that leveled so much of our world in the twentieth century. Hatred (the term is not too strong) of globalism is real, and justified, across the ideological spectrum. Globalism has brought community after community to ruin, while those who excel at “creative destruction” have profited enormously from selling off the remains of human lives as scrap.
And yet, come to think of it, “globalism” may not be very global after all, at least not in the cosmopolitan sense. To be sure, the People’s Republic of China, for its part, is very much a global player with its One Belt, One Road scheme to link all of Eurasia and beyond into a world-system anchored in Beijing. But this is not what is meant by “globalist,” which denotes, instead, a de-anchoring of institutions from nation-states in favor of free-floating individuals who govern the world from far above the masses in the streets below. The modalities of this anti-nationalist transnationalism are very much Western ones, too. Whether the ideology is liberalism or communism, as in the past, or regulatory socialism (as practiced by the European Union) or all-out “surveillance capitalism” (as practiced by Silicon Valley and its partners in the U.S. federal government espionage-industrial complex), “globalism” has been, and is, a code word for “Western.” What we think of as global standards are almost always just North American ones. And it is no accident that the world’s lingua franca is English, because “globalism” is really just the ideological residue of the Anglo-American empire.
It is in this moment of globalism and its discontents that my friend and colleague Kevin Doak has, in a timely manner, rediscovered a globalism very different from the brand with which most of us are familiar. Doak, a professor at Georgetown University and a specialist in East Asian intellectual history, religion, and law, has just published Tanaka Kōtarō and World Law: Rethinking the Natural Law Outside the West. This slim volume, part of Palgrave Pivot’s “Global Political Thinkers” series, is a landmark work. In just 120 pages, Doak has given us not only a biography of one of the most intriguing figures of twentieth-century jurisprudence, but also a glimpse of an entirely different vision for globalism, grounded not in anti-national institutions or private greed but in the natural law. And not just any old natural law—not the thin gruel of breezy platitudes that remains when the particularities of national statutes have been boiled off—but the natural law of St. Thomas Aquinas and St. Paul, a fully Catholic natural law rooted in real human life and applied vigorously and unapologetically to the most pressing problems around the world.
Tanaka Kōtarō’s (1890–1974) name is probably unfamiliar to most readers. Indeed, even those who study Japan for a living are not guaranteed to have heard of him. This aporia is difficult to explain at first, because in his day Tanaka was globally renowned. From humble beginnings in rural Japan, Tanaka worked tirelessly at his studies and eventually graduated from the University of Tokyo, later becoming a professor there and eventually dean of the faculty of law. During the American Occupation of Japan following the Greater East Asia War, Tanaka was appointed to work in the Japanese government, where his liaisons with the Americans (and his struggles with rival intellectual giant Nambara Shigeru, 1889-1974) helped define the course of the Occupation and of Japan’s future beyond it.
In the last decade of his career, after having served as chief justice of the Japanese Supreme Court, Tanaka was a judge in the International Court of Justice in The Hague. His decisions on cases requiring transnational arbitration, such as his principled stand against racism in a case involving South Africa’s claims on what is now Namibia, are still studied today as models of jurisprudential wisdom. At the culmination of a lifetime of achievement, Tanaka received honorary doctorates from three American universities and was inducted into legions of honor and orders of merit in countries throughout Latin America and Europe. Pope Pius XII inaugurated him into the Pontifical Equestrian Order of St. Sylvester. He received Japan’s highest civilian award. There could have been few worldly wise people just forty or fifty years ago unfamiliar with Tanaka Kōtarō’s name.
Why then is Tanaka so obscure today? The answer to this is part of the attraction of Doak’s new book, as Doak shows in Tanaka Kōtarō and World Law that the current tendency to ignore religion when writing history blinds us to much of the truth of the past. Tanaka was in the middle of the religious tensions warring for the heart and soul of Japan during the late nineteenth and twentieth centuries, but much of that is dismissed now as irrelevant. And yet, religion was central to Tanaka’s life, and to the lives of so many other Japanese. Without taking religion into account, we fail to understand the fundamental elements of many Japanese historical subjects.
Raised without any solid religious affiliation, Tanaka as a young man entered the circle of Uchimura Kanzō (1861–1930), the anti-church Christian who exercised an outsized influence over the intellectual and spiritual landscape of early twentieth-century Japan. Tanaka broke with Uchimura over the latter’s dogmatism over divorce, Tanaka preferring to view the question of a friend’s broken marriage not as one of strict adherence to the black letter of the Old Testament, but as one requiring charity and discernment. Tanaka, then a Protestant, began to question the religious assumptions of his co-religionists. But in his painful, and yet thoughtful, separation from his mentor Uchimura, Tanaka had inadvertently stumbled on the natural law. Tanaka’s growing dedication to the natural law would eventually lead him to join the Catholic Church. (His wife, Mineko, had already preceded him in baptism and confirmation.) This was the formative, defining moment that made Tanaka who he was.
For the Tanakas, as for so many other public figures in Japan at the time, religion was not the accessory to liberal secularism that is has largely become in both East and West today. Tanaka’s Catholicism was everything to him. He made no attempt to hide his religious beliefs, and refused to accommodate them to the evils he saw in the world around him. Tanaka’s principled stands annoyed his rival Nambara, and many others, too, with the tendency of men and women everywhere and at all times to be bending the truth to let the lie pass by. But Tanaka held fast. He was a Catholic and a natural lawyer, and he advocated for both Catholicism and the natural law on the national and world stage for most of his public career.
If Tanaka Kōtarō and other deeply religious men have largely faded from historical memory today, it is surely to the extent that religion has been systematically overlooked by secular historians. Doak’s book is therefore a shot in the arm. It is to be hoped that the study of Tanaka will lead other academics to revisit Japanese history with an integralist eye, a sensitivity to the holism of belief and act that marked many historical subjects, even if such integrity is largely brushed off today as not dispositive to historical narrative.
As important as this much-needed revisionism is, Doak’s book has an even bigger import, for Tanaka Kōtarō and his vision for the natural law that he called “World Law” are together a serious challenge to our current conceptions of globalism. Unlike the globalism of Brussels and Washington, DC, Tanaka’s World Law is firmly rooted in social practice and transcendent justice. This is a globalism of principle, not profit. Tanaka’s favorite maxim was ubi societas ibi jus—for him, law and civilization were husband and wife. You could not have one without the other. World Law was not a list of airy apothegms, but the wisdom of societies everywhere in their struggle to learn, and do, justice in a fallen world. One did not arrive at World Law by denying the particularity of the various world legal systems, but by embracing the manifold ways in which societies around the world have managed to bring good legal order out of endlessly variegated patterns of human sinfulness.
Tanaka’s World Law, which he explicated in detail in three hefty volumes in Japanese (the revised version of his doctoral thesis) and in countless other books and articles throughout his career, is a meticulously argued and deeply principled attempt to combat the extremes of nationalism and communism (Tanaka was against both, the latter much more vociferously than the former) by modeling global courts on the long experience of the Catholic Church. I can think of few, if any, intellectuals in the twentieth century writing in any language who have presented as clear and humane a vision of how to put the natural law into practice as did Tanaka Kōtarō. Even—especially—for those opposed to globalism in its current iteration, Doak’s new book on Tanaka is a must-read, as it opens up entirely new vistas of thought onto globalism’s possibilities. There is much more to globalism, Tanaka teaches us, than the shenanigans of the World Bank and the International Monetary Fund.
Tanaka’s initial fascination with globalism grew out of his early study of commercial law, which found a way to enable commerce among vastly different civilizations based on common beliefs about right and wrong. Later, Tanaka read the works of the Russian spiritual thinker Vladimir Solovyov (1853–1900), and his commercialism grew tinged with a universalism beyond the level of transactions and exchange. Finally, Tanaka discovered the natural law and his vision for a globalism of peace and prosperity matured in the image of the church’s understanding of who man is and what is his purpose on earth. This is the enormously rich backdrop to Tanaka’s life and thought, and Doak’s book is truly a masterpiece of concision, readability, and research. By the end of the volume, the reader feels that he or she knows who Tanaka is and what he stood for. Tanaka was a hero of the twentieth century, someone who consistently chose the narrow high road over the expedient superhighway. His ideas are very much worthy of our attention, and Doak’s introductory volume is heartily recommended to anyone with an interest in law, politics, religion, or even just the human spirit and the lifeways of that rarest of things: a decent human being.
But it is precisely in his lifework, World Law, that Tanaka presents us with questions that go to the heart of what he attempted to do. In his greatest success we can see the greatest possibilities for failure. Take, for example, the Sunakawa Case, a famous 1950s Supreme Court case in Japan in which the legality of Article 9 of the Japanese Constitution (forbidding the maintenance of land and sea forces) was challenged by local peace activists. The plaintiffs contended that the presence of American military bases in Japan contravened Article 9 and was therefore unconstitutional. The Supreme Court, perhaps borrowing a page from the John Marshall playbook, said that because the bases belonged to another country the constitution of Japan did not apply. Perhaps, but this hardly answers the bigger question: if globalism is to be put into practice, how, exactly, will it work?
Doak allows in the closing chapter of the book that the geopolitical realities with which Japan is faced today may have persuaded Tanaka to rethink his support of the Japanese Constitution. Indeed, since Article 9 hamstrings Japan’s ability even to defend against nearby nightmare states like North Korea and the People’s Republic of China, there would be something perverse, Tanaka would surely say, about adhering to a dream of peace while laying hundreds of millions open to foreign invasion. Could even a globalism as principled as that advocated by Tanaka in his World Law tame Beijing and the DPRK? This remains very much in doubt. China, for example, continues to ignore a 2016 Permanent Court of Arbitration ruling against it in favor of the Philippines, whose islands and territorial waters China has invaded and outright stolen. If rogue states may flout justice to the degree that power, or even just contrariness, allows, then what are the implications for World Law? How does the natural law counter a Hobbesian state of nature? In short, what are the limits of globalism? If globalist Japan must stand up to chauvinist China, then it will be a country—the United States—and not the world community that decides the fate of the contest.
But the Americans are not as heroically anti-globalist as might first appear. True, they have a remit to defend the left flank of their empire by making a stand along the Sea of Japan, but the price of American dominance in East Asia has been steep. One example of the hidden cost of the Pax Americana figures prominently in Doak’s book: abortion. The story is entirely unknown in the West today, but the American Occupation, and in particular the Freemason surgeon general of the Occupation, Crawford Sams, pushed Japan to pass one of the most permissive abortion laws on earth at the time, the chillingly named Eugenics Protection Law. Abortion was still illegal in the United States at the time, but the deeply globalist-minded Occupation authorities wanted to make Japan the vanguard for eugenicist “science” and they had little time for natural law objections to their positivist, pragmatic schemes. In this they were hardly alone. Margaret Sanger, for example, was enormously popular in Japan, and long advocated for the kind of eugenics engineering that Sams and the Occupation forces rammed through the Japanese Diet in 1948. Tanaka, as a Catholic, of course strenuously objected to this outrage against innocent human life. But here the question of suasion versus force comes back into view. Tanaka and other Catholics (along with Protestants, Buddhists, and many others) were appalled by the Eugenics Protection Law. But what could they do?
One of Tanaka’s early literary models, German memoirist Wilhelm Georg A. von Kügelgen (1802–1867), wrote in his autobiography about first being made aware of the existence of a world beyond his hometown when Napoleon rode through his village. The Napoleonic Code that was forcibly implanted on much of Europe and North America by France’s imperial conquests was in many ways a rejection of the organic, traditional, natural law laws that Tanaka rightly celebrated and championed. Time after time, the world has witnessed anti–natural law forces running roughshod over the jurisprudential treasures of premodern societies. Japan was no different. And so the dilemma remains the same. For World Law to work, it would seem to require a Napoleon of its own—precisely the sort of Hegelian figure that the natural law abhors.
Tanaka foresaw this difficulty, and argued that “for World Law to exist there must also exist a world society, or ‘world community’.” But, as Doak points out, “this is where his argument seems to falter.” Tanaka’s world was divided into Soviet and American camps, and his World Law was a kind of judicial non-aligned movement, a refusal to be drawn into the ideological binary in order to preserve the depths of discernment required of natural lawyers everywhere. Now that that contest of East and West is over, a new globalism of consumerism, Keynesianism, “surveillance capitalism,” and institutional exploitation is ascendant. For all of globalists’ talk about a “global village,” Marshall McLuhan’s dream is nowhere in sight.
Tanaka Kōtarō might say that the Catholic Church should foster such a community. But with even the current pope seemingly on the side of the secularist globalists, Tanaka’s vision of World Law—of peace and harmony through the natural law rooted in living human society—seems more distant now than ever.
Jason Morgan is associate professor at Reitaku University in Chiba, Japan. His book on Japanese legal scholar Suehiro Izutaro is forthcoming this year.