裁判における視点と法の内部観測

抄録

This paper aims to examine the meaning and the possibility about 'internal-measurement' in law, and more specifically, to demonstrate that internal-measurement relativizes the judge's viewpoint Although this aspect has already been introduced and applied to an analysis of politics or economics by Koichiro Matsuno, little attention has been paid to its implications to legal studies thus far. In a word, internal-measurement is an act of identification that is indispensable in any interaction. It is an idea about interactions between watching and acting. The judge is an actor in a situation of decision. At the same time, he is also an observer. Therefore the above mentioned interaction is also provided on the judicial agents. Of course, we have no doubt about the impossibility of separating between an actor and an observer. However, there also emerges some difference. In terms of tense, a court decision is a synchronous phenomenon that these differences contract, and disappear. In synchronization, the disagreement of these two points of view will be adjusted and it is the internal observer who will do this. (The internal observer who has double sides—actor and observer—appears not merely as a judge, but the other judicial agents such as the lawsuit parties.) The presence of plural internal observers implies to that the system of law can provide an opportunity in which the judge's viewpoint will be relativized. In judicial viewpoint there is no privilege that is transcendental and universal An instance is open to various possibilities, as Critical Legal Studies (CLS) has disclosed. It means that the transcendental instance, a premise in the traditional legal theories, will not be found in anywhere. Therefore, it is required to distinguish what is in charge of an instance from an instance itseff And it is a being that is interchangeable. In conclusion, the results of the present study indicates that the courts as the core of the system of law is a place where the viewpoints of actors and observers will be relativized, which suggests a negative aspect of the privileged judge's viewpoint.