法時間論

法よる時間的秩序、法に内在する時間構造

抄録

The purpose of this essay is to examine the relation between law and time. At first, 'time by law' and 'time in law' should be distinguished. 'Time by law' is social time order constructed by law, and 'time in law' is internal time structure in law. The former is about role of law, and the latter is about structure of law. Law has time structure corresponding with its time role, and legitimacy of law consists of both kinds of time. Sense of time diverges in each person, but common time should be shared for social practice. Law is not the only instrument, but the most powerful one for construction of social time order. Predictability ensured by law enables us to make our life plans. If our memories conflict in legal practice, judge will determine which past should be regarded as true, by examining existing evidences of both sides, in the end. Both kinds of time locate in present, not in past or future. Past exists in present only as memory. and future only as anticipation. Therefore legal practices need not commit to the reality of past and future. This 'legal presentism' is well philosophically explained by 'evidence presentism'. Presentism is ontology of time which insists that the only present things are real, and that past and future are unreal. What makes propositions about past or future true is a difficult problem for presentists. In this essay. I support 'evidence presentism' proposed by Tora Koyama. that insists only present evidences can be truthmakers. This theory is compatible with legal practices. Only the present things, including conventions naturalistically described, can generate an agency with accountability and time structure of legal practices, not vice versa.