法の支配と不確定性

抄録

We must not forget that there are negative aspects in the idea of “rule of law.” Justice demands individual considerations as well as general fairness, and the universal character of justice sometimes opposes to individual considerations. It means that the idea of “rule of law” may become an obstacle to social changes and progress. This tendency has been discussed repeatedly. In late years, Critical Legal Studies (CLS) and post-modern legal theories that showed arising in 1980's pointed out the negative side in the idea of “rule of law.” We may think CLS to have criticized “rule of law” from a point of view of “indeterminacy of law”. In this article, I review the indeterminacy thesis brought by legal realism and CLS, and make a short discussion about post-modern topics such as Wittgensteinean paradox, reader-response theory and decon-structionist approaches to law.