法社会学
Online ISSN : 2424-1423
Print ISSN : 0437-6161
ISSN-L : 0437-6161
現代法における法とモラル、法のモラル
法社会学的視座の再検討
馬場 健一
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ジャーナル フリー

2002 年 2002 巻 56 号 p. 26-39,274

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How have the issues concerning 'law and morality' or 'law and ethics' been discussed in sociological studies of law? What relations and constellations have been presupposed and given therein among the ideas of 'law', 'morality' and 'ethics'? This paper critically examines from rather a bird eye's view various mainstream theories and perspectives on this point. Through this analysis, the writer tries to identify a frame of reference underlying the diversities on the surface. It has a general tendency to take for granted the separation of law and morality in modern society and to see the modern law as a relatively autonomous mechanism. It is pointed that the mainstream discussions are themselves partially biased by the ideological influence of modern law, while they may accurately and often critically grasp the conditions of law in the modern world. And therefore those perspectives seem to have some thoretical weaknesses in analysing the conditions of law in society today.
Then in relation to the present pluralistic situation surrounding law and society, a direction and stance different from that of the mainstream discourse, inspired by the works of Roger Cotterrell, is implied. Such a perspective encourages to see the relations of law and morality as more intricate and entangled phenomena and seems to give a productive and refreshing view on the problems and challenges which the law of the present day is facing.

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