抄録
In the politics of judicial reform, there seems to be a consensus among all participants on introducing and strengthening the rule of law. Upon a closer look, however, an underlying assumption of the very rule of law is being challenged by the initiative of industrial organizations as well as of the ruling LDP, for they demand an efficiency in the legal services as its consumers and a political accountability in the judiciary as its constituency. This introduction of the market/political principles constrains the universalism and transcendentalism, which are at the core of the rule of law, for an effective access to law is rationed by the legal service market, and the neutrality of the law may be compromised by the power politics. In fact, there is a marked cleavage in the political strife over the judicial reform between the legal profession on the one hand and the industrialists, LDP and the people on the other, reflecting the struggle over the attaining/emasculating the rule of law.
This paper traces this cleavage in the judicial politics under the guise of rule-of-law as consensus and gets a deeper understanding of the concrete proposals, especially of the one selecting judges from the bar which is the most contested reform proposal. I argue that this difficulty of the rule of law being confronted by the consumer/constituency has a deep root in the contradiction of the modern liberal law. Especially, at the base of the modern law is the dichotomy of the desire/reason; i.e. the natural desire of the human being is tamed and made to coexist with other only by the capacity of reason. The law, and the judiciary represents this reason and the market/politics represent the desire to be controlled by the law. To overcome this dichotomous thinking by the help of communitarian writings hopefully yields the new conception of the judiciary in the post-industrial society in which the people's consumer/constituency consciousness is sharply awakened.
