Beyond International Law: The Theories of World Law in Tanaka Kōtarō and Tsunetō Kyō

Abstract

AbstractA remarkably prescient debate broke out among Japanese legal scholars in the 1930s over the possibility of moving beyond international law as the dominant jurisprudence for a world that had already become quite integrated. At the very time when some were turning away from the ideal of world order to more parochial claims of national or regional autonomy, Tanaka Kōtarō (1890–1974) and Tsunetō Kyō (1888–1967), two of twentieth-century Japan's leading legal scholars, offered the jurisprudence of world law (sekai hō) as a substitute for what they believed was an outmoded concept of international law (kokusai hō). Tanaka sparked the debate with his prize-winning 1932 study A Theory of World Law, and Tsunetō joined it with his 1936 essay, “The Essence of World Law and its Social Function.” The debate has continued throughout the twentieth century in various forms. More broadly, the jurisprudence of world law introduced by Tanaka and Tsunetō underlies Jacques Maritain's influential Man and the State (1951) and – through Maritain – Pope Benedict XVI's recent call for a “true world political authority.” Below, I critically engage this theory of world law, focusing on the difference between Tanaka's transcendental approach and Tsunetō's social deterministic approach, and offer some reflections on how world law might provide a useful way to think beyond the customary binaries of nationalism/internationalism and society/nature that still encumber so much thinking about law and social order today.