現代福祉国家論と治安刑法

抄録

In modern society, state authority increasingly expands power on the grounds of “improvement of people's welfare.” This trend is also revealed in the sphere of criminal law.
In the sphere of criminal law, theory of the welfare state rationalizes security measures. One defender of the theory assessing between personal rights and social demands for public seculity and another defender evaluating them on the grounds of the necessity for the security of civil life, both deem them favorable. In the process of amending the criminal law in Japan, security measures are considerd on the basis of their rationality, results, and the social welfare thought.
The classical civil criminal law rejected security measures. In present days criminal law involves the dangers of infringing on human rights and political abuses. Security measures are applied particularly to criminals subjective and emotional jeoparday rather than to his objective jeoparday. These abuses are typically shown in precautionary measures of the Public Order Acts in prewar Japan and also in the Nazis' concentration camps. In the process of amending the criminal law, therapeutic measures and habit remedy measures tend to be adopted, but the essentials are not always clear. Indeed, there is an opinion that therapeutic measures should be applied to psychopathic personality types. However, since the concept of psychopathy is not clearly established, there is danger that ideological evaluation could easily intervene. In fact, considerable numbers of democrats and socialists were consigned to oblivion in the past by being branded as “psychopaths.” Another ambiguous concept is revealed in indeterminate sentences upon habitual criminals. Moreover, since poor medical administration is quite bad for the name of the welfare state, there is a great possibility with regard to security measures that the preservation of public security may precede medical treatment and education for criminals.
The Juvenile Law in principle gives priority to educational treatment under the concept of “parens patriae” of the welfare state. In fact, however, educational treatment is neglected because of poor conditions in human and material service, and instead the public security is stressed. The Japanese Ministry of Justice is working out a scheme for amending the Juvenile Law, pursuing a policy to further restrain juveniles. Though this policy emphasizes for its reason the increasing and worsening tendency of juvenile crimes, it shuts its eyes to social causes for those crimes. It must be added that this amendment will play an important part in the “policy of educating people.”
police intervention into citizen's lives has become a serious problem since the revision of the U. S.-Japanese Security Treaty in 1960. The state has always stressed its role as a protector of citizens, and has especially advocated the “elimination of violence.” In effect, however, the policy of “elimination of violence” is mainly directed against the exercise of fundamental human rights. People's objections make it quite difficult to establish or apply an act designed for political restraint. It is also true that the government has expanded the security organization including the Self Defense Force. Indeed, there is a trend that the government may propose a new bill, preparing for the year 1970, the time for re-examining the U. S.-Japanese Security Treaty. This trend is closely related to the enlargement of state crimes and public crimes in the process of amending the criminal law. Thus, the enlargement of the “security criminal law” is a product among the ruling class of the consciousness of a critical situation. Yet, the ruling class explains that these actions are necessary for protecting the “democratic state and the welfare state” as they call it.