刑罰と福祉のエピステモロジー (科学認識論) (課題研究 司法と福祉)

抄録

The purpose of this study is to develop an epistemology on the relation between punishment and welfare asking for the help of arguments on "Verrechtlichung (=leagalization)" mainly developed in Germany. Looking at a practical situation on the mixture between punitive codes and assist codes and the relationalization between penal and welfare systems, it is negative in the correctional stage and positive in the rehabilitative stage in general. It is extremely difficult to make punitive codes and assist codes coexist and it connect together and it has a possibility to impede functions of both systems. Now "criminal-justice-welfare" or "penal welfare complex" theories and practices are, however, being developed and are going to be developed in the near future. But if different codes, punitive codes and assist codes, are uncritically related and connected, we will be able to find "disciplinary welfare sanctions" which put crimes and criminals under surveillance and punitive control in the main. Then an outbreak of "treatment trilemma" cannnot be avoided. Conquering this trilemmma, we have to be emancipated from the "punitive myth" and "criminal justice myth" which regard the processing of crimes and treatment of criminals through penal sanctions and punitive controls as important and necessary. "Pardons" may be a moment of this emancipation. In order to construct a "symbiotic society" based on pardons, it is indispensable to acknowledge the "diversity and difference" and the "independence and autonomy" both on the social level and on the individual level and hold them in high regard. Sanctions or social controls in post welfare states have to be constructed on the "reflexivity" and "contingency". Reflexive and contingent codes which are generated in arrangement relations of plural social matrixes are needed in the future crime-processing or problem-solving systems. This new "reflexive contingent codes" in post-modern society are de-centralized and autopoietic and think a great deal of ways of problem solving by the participation and learning of the persons concerned in opposition to the precedent penal sanction systems in which states appeal to and intervene into clients in the form of punishment and assistence.