RISK SOCIETY AND THE LAW

Risk Society and the Law: Issues and Future Outlook

Abstract

The term Risk Society, which was introduced in 1980s by a German sociologist. Ulrich Beck, is now widely used in Japan, and is referred to in a variety of issues and contexts which range from safety level of atomic power plants, dosage of antibiotics. GMO foods, or pandemic such as bird flu to anti-terrorist measures and global financial crisis. Main objectives of this year’s conference are to clarify and scrutinize the transformations in legal practice and thought with this term as a guiding index and framework, which subsequently leads to a critical analysis and diagnosis of our time, an era of uncertainty. Three general issues are presented in the keynote speech to introduce and facilitate issue-based specific discussions in following sessions. Firstly, the notion of risk society is re-situated in the context of history of epistemology with special reference to the notion of probabilistic revolution and the study of no-fault system, social insurance and emergence of the welfare state, which has been pioneered by Francois Ewald. Secondly, diverse usages of the word risk are sorted out and located between two poles. i.e. risk-objectivism and risk-constructivism. Importance of the distinction made by Frank Knight a founder of the Chicago School of economics, between calculable risk and incalculable uncertainty is also touched upon, though briefly. Thirdly, relevant topics in respective legal areas are overviewed. Those include: pros and cons of the precautionary principle in environmental law; increasing aspirations of deliberative democracy in face of incalculable risks in constitutional law; prevalence of the template contract forms over free and autonomous negotiations in private law; conflicts between preventive measures and protection of liberties and human irghts in criminal law: and loose and flexible confederation of peoples (which Emmanuel Kant and John Rawls dreamed of) versus centralized world governance over global risks in the field of international law or international relations. Every single topic mentioned above inevitably evokes fundamental questions as to the possibilities and limits of human agents equipped with rational choice and free will, which has served as the foundation of the modern law.