Judge Tanaka and his contribution towards Human Dignity as a School of Law
- Late Prof. (Dr.) S.R.S. Bedi
Former Prof. of Law
Rajiv Gandhi National University of Law, Punjab
A judge is known by the justice he delivers. And, his justice is known by the mark he leaves on the history of law and justice. And, the weight of that history is measured by how much he adds to human conscience and human dignity, for in the final analysis a judge must realize that his conscientious faculty of justice was never his own but a sacred trust of humanity wrapped in his judgeship only for a short while. Justice is conscience. Human dignity lies in human conscience. And, a judge who knows his own conscience also knows the conscience of humanity, hence the conscience of justice. It is this way that I always think of Judge Kotaro Tanaka. Judge Tanaka hailed from Japan. Born in 1890 in Kagoshima, he graduated in law from Tokyo Imperial University. Thereafter, having studied commercial law in Europe and the United States, he returned to his own university to teach commercial law and legal philosophy. The most distinguished part of his teaching career was his tutorship of the Japanese Crown Prince and Princess from 1951-1960. He also held other positions in Japan, such as Member of the House of Peers (1946), Minister of Education (1946-1947), and the Chief Justice of the Supreme Court (1950-1960). As a judge and as a jurist he was a born natural law thinker with a benevolent liberal judicial ideology that would contribute to the cause of humanity and respect for human dignity.
Judge Tanaka came to join the bench of the International Court of Justice in 1961 and served his complete term of 9 years. Having participated in some 8 cases he appended 2 Joint Declarations, 2 Separate Opinions, and 2 Dissenting Opinions, to the Court’s numerous decisions. Of these, the Dissent (http://www.icj-cij.org/docket/files/46/4945.pdf) appended to the Judgment of 18 July 1966 in the joint cases of South West Africa was his greatest contribution to the cause of human rights and human dignity. His Dissent is a jurisprudence in itself and the best ever written in promoting respect for humanity and human dignity. He shook the conscience of the Court in disagreeing with its decision in rejecting the Applications of Ethiopia and Liberia – bringing cases against South Africa for its apartheid’s regime in South West Africa, now known as Namibia. As history stands the witness, it was not the Judgment of the Court that prevailed in the United Nations General Assembly and the entire international community but what he delivered as justice in his own dissent. Any one, who wishes to go to the very conscientious core of human rights and human dignity is recommended to go through his dissent and, more particularly his following statements therein.
Respectfully disagreeing with the Court’s decision – that “the Applicants did not, in their individual capacity as States, possess any separate self-contained right which they could assert.” – Judge Tanaka -- strongly recognizing that that the “social and individual necessity constitutes one of the guiding factors for the development of law by the way of interpretation as well as legislation” – answered to the Court in the following humanitarian sense:
Judge Tanaka passed away in 1974 but his legacy to human rights is his lasting contribution to the cause of respect for human dignity, surely a vital part of Human Dignity as a School of Law.
PROF. (DR.) S.R.S. BEDI
Late Prof. (Dr.) S.R.S. Bedi had written this Article for Human Dignity International, before his untimely demise in Oct 2012.
Former Prof. of Law
Rajiv Gandhi National University of Law, Punjab
A judge is known by the justice he delivers. And, his justice is known by the mark he leaves on the history of law and justice. And, the weight of that history is measured by how much he adds to human conscience and human dignity, for in the final analysis a judge must realize that his conscientious faculty of justice was never his own but a sacred trust of humanity wrapped in his judgeship only for a short while. Justice is conscience. Human dignity lies in human conscience. And, a judge who knows his own conscience also knows the conscience of humanity, hence the conscience of justice. It is this way that I always think of Judge Kotaro Tanaka. Judge Tanaka hailed from Japan. Born in 1890 in Kagoshima, he graduated in law from Tokyo Imperial University. Thereafter, having studied commercial law in Europe and the United States, he returned to his own university to teach commercial law and legal philosophy. The most distinguished part of his teaching career was his tutorship of the Japanese Crown Prince and Princess from 1951-1960. He also held other positions in Japan, such as Member of the House of Peers (1946), Minister of Education (1946-1947), and the Chief Justice of the Supreme Court (1950-1960). As a judge and as a jurist he was a born natural law thinker with a benevolent liberal judicial ideology that would contribute to the cause of humanity and respect for human dignity.
Judge Tanaka came to join the bench of the International Court of Justice in 1961 and served his complete term of 9 years. Having participated in some 8 cases he appended 2 Joint Declarations, 2 Separate Opinions, and 2 Dissenting Opinions, to the Court’s numerous decisions. Of these, the Dissent (http://www.icj-cij.org/docket/files/46/4945.pdf) appended to the Judgment of 18 July 1966 in the joint cases of South West Africa was his greatest contribution to the cause of human rights and human dignity. His Dissent is a jurisprudence in itself and the best ever written in promoting respect for humanity and human dignity. He shook the conscience of the Court in disagreeing with its decision in rejecting the Applications of Ethiopia and Liberia – bringing cases against South Africa for its apartheid’s regime in South West Africa, now known as Namibia. As history stands the witness, it was not the Judgment of the Court that prevailed in the United Nations General Assembly and the entire international community but what he delivered as justice in his own dissent. Any one, who wishes to go to the very conscientious core of human rights and human dignity is recommended to go through his dissent and, more particularly his following statements therein.
Respectfully disagreeing with the Court’s decision – that “the Applicants did not, in their individual capacity as States, possess any separate self-contained right which they could assert.” – Judge Tanaka -- strongly recognizing that that the “social and individual necessity constitutes one of the guiding factors for the development of law by the way of interpretation as well as legislation” – answered to the Court in the following humanitarian sense:
- There is no reason why an immaterial, intangible interest, particularly one inspired by the lofty humanitarian idea of a “sacred interest of civilization” cannot be called “interest”.... The historical development of law demonstrates the continual process of the cultural enrichment of the legal order by taking into consideration values or interests which had previously been excluded from the sphere of law... Each Member of a human society ¾ whether domestic or international ¾ is interested in the realization of social justice and humanitarian ideas. The State which belongs as a member to an international organization incorporating such ideas must necessarily be interested. So far as the interest in this case affects the rights and obligations of a State, it may be called a legal interest.”
- “Well, those who pledge themselves to take action in co-operation with the United Nations in respect of the promotion of universal respect for, and observance of, human rights and fundamental freedom, cannot violate, without contradiction, these rights and freedoms. How can one on the one hand, preach respect for human rights to others and, on the other hand, disclaim for oneself the obligation to respect them? From the provisions of the Charter referring to human rights and fundamental freedoms it can be inferred that the legal obligation to respect human rights and fundamental freedoms is imposed on member States.”
- “…the legislative imperfections in the definition of human rights and freedoms and the lack of mechanism for implementation, do not constitute a reason for denying their existence and the need for their protection.”
- “…human rights which require protection are the same; they are not the product of a particular juridical system in the hierarchy of the legal order, but the same human rights must be recognized, respected and protected everywhere man goes. The uniformity of national laws on the protection of human rights is not derived, as in the cases of the law of contracts and commercial and maritime transactions, from considerations of expediency by the legislative organs or from the creative power of the custom of a community, but it already exists in spite of its more-or-less vague form. This is of nature jus naturale in roman law.”
- “The existence of human rights does not depend on the will of a State; neither internally on its law or any other legislative measure, nor internationally on treaty or custom, in which the express or tacit will of a State constitutes the essential element… A State or States are not capable of creating human rights by law or by convention; they can only confirm their existence and give them protection. The role of the State is no more than declaratory. Human rights have always existed with the human being. They existed independently of, and before, the State.”
- “If a law exists independently of the will of the State and, accordingly, cannot be abolished or modified even by its constitution, because it is deeply rooted in the conscience of mankind and of any reasonable man, it may be called “natural law” in contrast to “positive law”… Provisions of the constitutions of some countries characterize fundamental human rights and freedoms as “inalienable”, “sacred”, “eternal”, “inviolate”, etc. Therefore, the guarantee of fundamental human rights and freedoms possesses a super-constitutional significance.”
Judge Tanaka passed away in 1974 but his legacy to human rights is his lasting contribution to the cause of respect for human dignity, surely a vital part of Human Dignity as a School of Law.
PROF. (DR.) S.R.S. BEDI
Late Prof. (Dr.) S.R.S. Bedi had written this Article for Human Dignity International, before his untimely demise in Oct 2012.