Abstract
In the postwar Japanese law and society, there has been a slow but steady development towards an expansion of the ideals and practices which can be called "the communal". For example, the postwar expansion of the Japanese welfare state has recently taken the course of putting more emphasis on state's reliance on private and voluntaristic "mutual help" among people. Also, the Japanese administration, both at national and local levels, has long been characterized by its reliance on "administrative guidance" which can be understood as a set of techniques for "consensus oriented administration." Also, the Japanese judicial system has long operated on the preference of "mutual concessions (wakai)" in the settlement of legal disputes. Also, in the residential communities of urbanized Japanese society, people have been organized in the "neighbourhood organizations (Chonai-kai)", a principal social function of which is to promote social sense of community among local residents. In all of these, and many other aspects, social technologies, and interactional patterns in Japanese law and society keep on testifying the ideological, structural, and interactional importance of "the communal".
Despite of its well accepted importance as a mundane feature of socio-legal system of Japan, the ideal of "the communal" has been regarded as a "dubious" ideal by social scientists and critics. A brief look at the debates on "the communal" among several areas of sociological studies in law shows that that may be a reflection of the ways ordinary people treat the sense of "the communal", of such ways that those ideals are made dubious and elusive so that people use it to institute claims to others.
Examples of the various ways in which the idela of "the communal" is used by ordinary people to make claims in disputes are available in Nobutoshi Nakagawa's study of "The Prefectural Musium's Exhibition of The Emperor's Portrait Debate" (N. Nakagawa, "Three Party Process in Tennno' Art Issue: A Constructionist Analysis of a Censorship Problem' at a Public Modern Art Museum" TOYAMA DAIGAKU JINBUNGAKUBU KIYO. Vol. 23 (1995), p.33), in which the various ways the regional people employed the idea of "Prefecture" to claim on the corect action of the public authority are detailed and analyzed. According to the study, the local authorities claimed on the individualistic ideal of "privacy" (of the Emperor!) because they had had to accept the people's claim that the prefecture is the representative of "the communal" so that the public museum should exhibit the comical portrait of the Emperor when it vealized that the residents wanted them to be exhibited.
The paper proposes that the scope and depth of sociological studies of law should be espanded to appreciate and better analyze the fact that ideal of "the communal" as being claimed to be the humann value and the essential nature of human existence is estensively used in the process of contemporary legal disputes in Japan. A focused study of such facts will make clear the ways in which the ideas of community, the communal life, the commonality of people in various circles, i.e. "the communal" in the wider sense, operate on the ideas and practices of legal claims making, legal regulation, legal settlement of disputes and so on, i.e. the law in the narrower sense.
