Orientation toward Authority behind Relativismus － Statements by Asao Odaka, Kameji Kimura, and Toshita Tokiwa, one historical consideration

This paper tries to clarify what papers the jurists in Japan authored and how they accommodated themselves to national power during the Second World War. So far, I have been describing, and criticizing, the papers and ideas of the jurists that accepted such national power as “the jurisprudence that committed war crimes.” This is the standing point for learning lessons from the past for the future (in Chinese, “past experience, if not forgotten, is a guide for the future”). 　Gustav Radbruch (1878-1949), a philosopher of law in Germany, is known for his great contributions to the trend of jurisprudence in Japan prior to and during the war with his democratic ideas on jurisprudence based on relativism (Relativismus). Since then, however, researchers have revealed that this so-called “relativism” might contain an orientation toward authority from the beginning. 　The three jurists discussed in this paper are among the researchers that studied the quintessence of the thought of law by Radbruch. When the second Sino-Japanese War began, which was followed by the start of the Pacific War, they accepted the orientation to authority contained in relativism as “the absolutism of positive law” (zum Absolutismus des positivien Rechts). They were then self-confident in “the legal certainty” (Rechtssicherheit) and “the validity of law” (Rechtsgeltung) that were backed up by this orientation to authority, and they elaborated their own theories to support the war. History shows us that their unique papers, which contributed to arousing a nationalistic legal system in the imperialistic environment of the spiritual climate in Japan, were constantly carried in university bulletins, academic journals, and other mediums and, thus, were widely spread throughout the country. We can easily presume that they provided a certain level of criteria to decision making, not only in terms of academia but also in the interpretation and application of “the Maintenance of the Public Order Act.” This was called a political criminal law, and this, as well as the laws for governing the colonies outside of Japan, were used in the course of running the national government, or in other words, the judiciary, legislature, and administration. 　First, Asao Odaka (1899-1956), a philosopher of law, authored, as a professor at the imperial university in colonial Korea, his thesis “Moralistic Korea and Draft System” (1942) while also contributing to the implementation of the draft system in Japanʼs colonies. He was energetic in encouraging young people in Korea to sign up as subjects of the Empire of Japan, effectively sending a large number of young Koreans to war. Second, Kameji Kimura (1897-1972), a scholar of criminal law, used the basis of the work of Karl Larenz, a philosopher of law who served the Nazis, when he wrote a large number of theses in admiration of totalitarianism. In his thesis “Criminal Law and National Morality” (1943), he asserted that Japan was “the land of God.” Based on the Prince Shotokuʼs (574-622) constitution, he emphasized his theory of national morality, saying that all crimes indicated disloyalty to the emperor and thus were tantamount to treason. He, therefore, advocated that criminals who contradicted national morality should be severely punished. Lastly, Toshita Tokiwa (1899-1978), a scholar of economic law, lived in Germany for about eight years and studied directly under Radbruch. He wrote “Radbruch and Others — the Final Day and the Final People of the Jurisprudence in Germany” (1934), the thesis of anti-Nazism, and sent it to academia in Japan. He, however, could not defy trends at the time when he returned to Japan during the war; thus, he altered his standpoint and authored a large number of theses including the thesis “The Principle of Leaders” (1941) based on the thoughts by Otto Koellreuter, a jurist of the Nazis, and others and the thesis “Uniformism” (1942). At the same time, he founded the Japan Association of Economic Law which had a fundamentally totalitarianism ideology, and which contributed to the theorization and practicality of “the laws of controlled economy.” Moreover, Tokiwa asserted the theory of “good faith in the law,” which can be understood to have contained an aspect of encouraging “the subjects of the empire” to fulfill their obligations of “loyalty” to the nation. After the war, the three scholars mentioned above neither referred to their works again, nor authored anything to criticize themselves. 　Immediately after Nazi Germany was founded, Radbruch criticized it and published a thesis (1934) asserting “the relativism that is universal tolerance — we, however, cannot be tolerant even to non-tolerance.”Furthermore, in the course of World War 2, Radbruch took up his pen and authored “Cicero deutsch” (1941), a thesis simulating a history book that deals with the theme of the democratization of Greece and Julius Caesar, in which he clarifies that “tyrants and uncontrollable dogs — he who kills th ...