行政はいかに法を学ぶか

情報公開問題からみた「法治行政」の現実と行政争訟の機能

抄録

How does a public agency decide its interpretation of a law that it is going to enforce or invoke? And how does it tend to react when it faces a pressure to change the interpretation from outside? In other words, how does administration learn the law? Are there any specific characteristics or problems concerning these legal processes in Japanese public sectors? This paper examines these issues, taking up “disclosure of information” activities of a local education board and related disputes as a case. Constitutional principles require administrative legal interpretations to be consistent and legitimate. From sociological viewpoint, realization of such requirement is a dynamic social process, not automatic or mechanical. So it is worthwhile an inquiry, both academically and practically, to ask and analyze what legal/political/social mechanisms exist to try to guarantee legitimate understanding of legal rules of public sectors; how they are functioning or not functioning; how effective they are; what factors are behind those realities; whether and how they are to be improved. “Enforcement and invocation of law” studies have tended to see public sectors as a legal subject, the one to use law to attain some administrative objectives. This paper, on the other hand, treat administration as an legal object of law, the one to be required to observe law. Such a viewpoint, classic it may be, may have its renewed importance in critically discussing present-day government.