The Annual Meeting of Legal Philosophy 2003 under the title of “GENDER, SEXUALITY AND THE LAW” was held under the auspices of The Japan Association of Legal Philosophy (JALP), in Tokyo, on November, 21-22, 2003.
Issues of this meeting were as follows:
1. From a standpoint of feminism, scholars try to criticize and reexamine the main subjects of legal philosophy (especially justice and rights), and the basic structure and fundamentals of orthodox legal theory. Furthermore, we try to find gender-bias in theories, and to restructure the political and social system.
2. Legal philosphers do not only reply to feminists' criticism of theories of justice, rights and liberalism, but also present their generous intellect which is tolerant of criticism.
3. Scholars both examine anti-feminist critiques that have occured from the margins of the feminism-debate, inspired by postmodern philosophies, and investigate the movements of feminism's self-innovation. We also try to criticize the dualism of gender and hegemonic heterosexuality, and to deconstruct identities (including the definition of ‘woman’) that are oppressive. We hope that this will lead to the recognition of diversified sexualities.

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Human beings have a double aspect: one is that of a patient and the other is that of an agent. With this aspect in mind, I try to consider evil, violence and injustice from a view of feminism as critique of violence.
In considering this theme, one of the most important legacies of liberal vocabularies seems to reemerge. That is the right to resist. I propose a question. Does contemporary liberalism take this legacy seriously in the face of evil, violence and injustice these days, especially after the 9.11 and the war on Iraq
With this question in mind, I rely on Judith Shklar's insights. Firstly, her “liberalism of fear” as a political doctrine is important for my purpose because it takes human beings as sentient beings seriously in comparison with an orthodox and “robust” liberalism. Secondly, her argument about “a sense of injustice”, which is based upon a distinction between misfortune and injustice, is also suggestive.
I also rely on Yayo Okano's insight, which follows Shklar's arguments and develops them further. She emphasizes the importance of “doing justice after the violence” and tries to reconsider “restorative justice.”
I regard Judith Herman' s Trauma and Recovery and many efforts following this innovative work as one of the various ways of “doing justice” or “restorative justice.” While I evaluate their ways of “doing justice”, they seem problematic. Their problematic points consist in their therapeutically institutionalizing disposition.
How can contemporary “robust” liberalism consider “doing justice” or “restorative justice” with taking the right to resist seriously and without yielding to this problematic way The answer depends on whether it can take its legacy seriously in our flat battlefield.

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Feminists have presented perceptive criticisms of the currently dominant theories and practices of the moral and social orders, and some of them have made efforts to replace these theories and practices with the ‘ethic of care’ and its application to distinctively institutional domains. In this paper I first look at a few of the most important attempts made in this direction; then I offer suggestions to further promote this movement.
We owe the feminist insight of the ethic of care, as opposed to the male-centered ‘ethic of justice’, to Carol Gilligan's epoch-making In a Different Voice. In Starting at Home Nel Nodding develops the ethic of care in a couple of respects. First, she shows that what matters is not just a person caring for another but rather reciprocity between the one-caring and the cared-for. Second, she applies the ethic of care to the context of social policy and develops the conception of a ‘caring society’. Mari Osawa can be said to virtually join these ethicists of care when she proposes governmental policies intended to create in the Japanese society the conditions in which men and women can participate together in politics, at the workplace and at home, and lead exciting and fulfilling lives.
I make three recommendations to advance the movement represented by these three authors. First, we should be even more aware that what may look like trifling matters in everyday life do have political significance. Second, we should take a step to implement the ethic of care in the contexts of education, broadly construed. And thirdly, we should respect people's right to define themselves; and hence we (women and men alike) should be careful as to how to address those exposed to systematic unfair treatment in the society, specifically, female persons.

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Sexual harassment has three types-Quid Pro Quo, hostile condition of work, and gender discrimination types.
Sexual harassment is defined as unwelcome sexual behavior toward partner or people.
Sexual harassment is abuse of human rights, and is sexual and gender discrimination.
Harm caused by sexual harassment is various from use of words to rape.
Places where sexual harassment can happen are also various.
First, office. Sexual harassment is recognized as happening at office. At Japanese offices, “gray zone” is a special problem. This gray zone is connected with the employment custom in Japanese companies.
This Japanese employment custom is that Japanese companies do not regard working women as equal partners. For example, male bosses and co-workers call a working woman “obasan”, which means middle-aged woman, or “ojousan”, which means miss or young lady. But working women have their own names. Working women must do odd jobs for example, “ochakumi” or making copies.
Second, university or college. Sexual harassment at universities and colleges is called “campus sexual harassment” in Japan.
Probably, the campus sexual harassment is connected with academic harassment in Japan. Academic harassment means harassment by professors. A professor criticizes a student for her or his academic record.
Third, school elementary school, junior high school, and high school. Sexual harassment at schools is called school sexual harassment in Japan. It is no exaggeration to say that school sexual harassment is a big issue in Japan. This issue features even on such magazines as are mostly read by men.
Fourth, sports. Sportswomen are threatened with sexual harassment by their coaches.
Fifth, hospital or medical institutions. In Japan, “power harassment” by doctors becomes a big issue. And sexual harassment by doctors becomes an issue, too.
Sixth, area-neighborhood. Sexual harassment is caused by neighbors.
Seventh, the power of the State jail or prison. In Japan, female prisoners had been raped by keepers in prison for a long time ago. Another problem is the treatment of women in death cells.

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In Japan, people's sexual and reproductive issues have been controlled by two laws, i. e., the Penal Code, which stipulates that abortion is illegal and the Eugenic Protection law, which is now revised as the Maternal Protection Law under the Ministry of Health, Welfare and Labour. The very existence of illegal abortion (prohibition of abortion) implies that in Japan people do not have the freedom to decide whether to have a child or not. This situation remains unchanged.
Meanwhile, one of the slogans which was advocated more than 40 years ago by one of the most adical challenged people's groups in Japan was “Mothers, do not kill!” This slogan expresses challenged people's anger at the reality of the time when those parents raising challenged children kill their children by themselves or when those parents commit both infanticide and suicide so that the general public's sympathy is directed not to the children who have been killed but to the parents who have killed them.
Now challenged people in Japan express repulsion at the ongoing practice of aborting challenged fetuses. They are focusing their attention on whether the concept of women's reproductive rights includes the right to abort challenged fetuses. They feel threatened by women's claim for the abortion of challenged fetus as their right.
The debate on prenatal testing in Japan often focuses on the opposition between “women and challenged people” and “eugenic issues”, rather than the relationship between “women and fetuses, ” because of the aforementioned backgrounds of challenged people's movements. Now women's groups and challenged people's groups are starting to have joint discussions with the rights of both women and challenged people in scope.
We need to notice these discussions, and seek ‘Justice’ to regulate technologies, which intrude into human reproductive and sexual issues.

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Following the end of the Cold War, the collapse of the communist regimes of the Eastern Bloc led to large changes in social theories. One of the changes was a revival of liberalism. Although liberalism was expected to solve social inequalities, it was also criticized because of its justification of social inequalities. This paper argues how liberalism could possibly justify gender-related inequalities. Firstly, I argue that the characteristic logic of liberalism could be described as universalism. Next, I make two arguments which explain how liberalism has excluded women; firstly, for historic sociopolitical reasons, and secondly, because of its universalist character.

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In this paper I argue for two claims: that liberal feminism can adequately capture the critical insights of the second-wave feminism so as to rescue the latter from its own self-defeating tendencies; and that the internal tension between the liberal and feminist perspectives of liberal feminism generates important issues that must be addressed to reinforce feminism and to deepen liberalism. In the fist section I defend the first claim by showing the following points. The second -wave feminist critique of the public/private dichotomy is based on the doctrine that the personal is political, which must be complemented by the liberal tenet that the personal is personal for everyone, in order to protect against “private” and social pressures the autonomy and equal status that women have as individuals. The anti-essentialist deconstruction of gender, another secondwave feminist insight, must be coupled with the liberal commitment to critical morality based on justice and human rights to get out of the trap of comprehensive deconstructionism that undermines the feminist reformative vigor. In the second section I substantiate the second claim by comparing Ayako Nozaki's conception of liberal feminism and mine. Nozaki attempts to reconstruct liberalism from a feminist perspective by incorporating Hannah Arendt's conception of equality and Amartya Sen's capability-based approach to distributive justice into her theory. I argue that her feminist concerns can be more adequately captured and defended from a liberal perspective in which the universalistic idea of justice and resource-based approach to distributive

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The Second Wave Feminism has criticized the modern concepts of ‘Universal Human Rights and Citizenship’ through the criticism on the public-private dichotomy. It had a tremendous impact on Feminist Jurisprudence or Women's Legal Theory established in 70's, which has developed into the Gender Law Studies since 90's.
We have to reconstruct ‘Human Rights and Citizenship’ Theories in the aspect of the Gender Law Studies and improve the relation between Gender and Sovereignty or State Power. Because it is indispensable for women to participate in the political decision making toward the Gender Equal Society. Gender Law Program which provides the theoretical standpoint and perspectives for Gender Equal Society should be established for the consciousness raising, critique or textual deconstruction, theorizing law's gendered nature, and feminist practical reasoning. The role of Gender Law Studies would be enormous in order to promote the Gender Equal Society in the 21^st century.

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Feminism has been considered to be imcompatible with biological sciences such as anthropology. In particular, minimalism-oriented feminists tend to dislike studies on sex difference. Actually, some biological scientists have been apt to justify the discriminative status quo. However, we should inquire the way for feminism compatible with biological sciences. In addition, we should be aware that feminism asserted to the Third World countries would be in collision with the request for respect of their cultures, and hence with cultural relativism.

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In this article, I argue that we should abandon the dualism of gender, male/female, and that we must recognize that gender is gradational. By so doing, it may benefit many sexual minorities (for example, homosexuals, transgenders, intersexuals, etc.) who are oppressed by the dualism of gender and hegemonic heterosexuality.
A plan of this article is as follows:
1. I inquire into the causes of the dualism of gender and hegemonic heterosexuality in modern society. I deal with the causes as follows: (1) modern patriarchy and capitalism, (2) marriage system as means of reproduction, (3) restraints on our daily performance by gender, and so on.
2. I consider a theoretical framework for the reduction of that hegemony including: (1) identitypolitics, (2)“gender-performativity” (by J.Butler), (3) criticism of homophobia, (4) queer theory, and so on.
3. I consider the extent to which we can trust administration and legislation to construct “a sexually free society”. In conclusion, I argue that legal intervention in sexualities should be avoided as much as possible, and that sexual identity should be left to each individual.

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Due to the terror on the 11th September 2001, we are aware of the imminent problem of “the clash of civilizations”. It is important for legal philosophers to find out a common perception of justice, so as to overcome political, economical or religious conflicts. By the assassination, the terrorist must confront with the question about the legitimacy of his act. If he justified his murder, he could also justify the terrorism. This justification, however, would come from nihilism. If he cannot justify his murder, his assassination must be injustice. But then, why should he victimize his own life There is a leading case for this problem in the Russian revolution. On the 2 nd February 1905, one of the terrorists, Kalj aev, went to assassinate the Great Prince of Sergius with a bomb, but found a nephew and a niece of this in the wagon. At this moment, he forwent to explode the bomb, in order not to kill the children. After two days, he killed him successfully. According to Boris Savinkov's autobiography, the terrorists aimed to rescue the suffering fellows from the Czarism and to realize the peaceful world. They could not, however, achieve this ideal, because they combated with the violence. They must be agonized, because they murdered another person, even if an evil politician, and contradicted their own idea. Three authors brought up the Kalj aev's action into the literature: Savinkov himself in “The Sallow Horse” (1907), Jiro Osaragi in “The Poet” (1933) and Albert Camus in “Les Justes” (1949). And then Kazumi Takahashi compared these literatures in “Philosophy of Assassination” (1967). We can find, nowadays, a basic approach in this historical affair and these intellectual goods to orient the living of the humankind in the 21 st century to a common idea of justice beyond cultural or religious differences.

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Severe and extensive poverty persists while there is great and rising affluence today. The question to be asked is, What should we in the rich states do according to the principles of justice
Arguments about justice in an international society are often divided broadly into two approaches. One is a ‘global justice’ approach which applies principles of liberal justice directly to an international society. The other is a particularist approach which restricts the domain of justice to nations or societies.
If strict cosmopolitanism, which claims that duties to provide aid applied to all without distinction of nationality is right, then global justice command us to help the poor. Even if it is false, moderate cosmopolitanism is compatible with the global justice. And even if particularist approach is right, particularist approach is compatible with Pogge's theory of global justice.
He suggests what he calls an institutional understanding of human right. According to this understanding, having human right means any society ought to be organized that all members have secure access to the objects of their human rights. Responsibility for a person's human rights falls on all and only those who participate with this person in the same social system.
He also suggests that present global order imposes severe poverty on the poor who cannot resist this order. According to Pogge this imposition deprives them of the objects of their most basic rights and it is human rights violation. Then what we must do is to diminish the injustice of the global order through institutional reforms. We must stop thinking about world poverty in terms of helping the poor.

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The school of liberal legal philosophy has existed in Hungary since the end of the 19th century. It comprised the following thinkers, who had formed teacher-disciple relationship:
Pulszky, TAmiogost (1846-1901, The Theory of Law and Civil Society, London, 1888.)
Pikler, Gyula (1864-1937, The Psychology of the Belief in Objective Existence, London, 1890.) Somló, Bódog (1873-1920, Juristische Grundlehre, Leipzig, 1917) Moór, Gyula (1888-1950, Macht, Recht, Moral, Szeged, 1922.)
Horvath, Barna (1896-1973, Rechtssoziologie, Berlin-Grunewald, 1934.)
Bibó, István (1911-1979, Democracy, Revolution, Self-Determination, New York, 1991.)
All these thinkers were considered to be excellent scholars not only in Hungary but across the whole world. Moreover, each of them had published some books in other countries. Without exaggeration, they can be described as legal philosophers who gained worldwide recognition dvring their lifetime.
However, during the Cold War, especially from 1956 to 1989 in Hungary, the scholars had been officially disregarded because of their non-Marxist thought.
After the Cold War, they were allowed to study freely and some of their works had begun to be published in Hungary. We have gradually been able to obtain a perspective of their lives. In this paper, I would like to describe some characteristics of their thought, with reference to the Hungarian historical and scientific conditions in that period.

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Gustav Radbruch (1878-1949) presented his famous formula under the direct influence of 12 years of National Socialism. It reads: “Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely ‘false law’; it completely lacks the very nature of law.” Many scholars claim that this proposition differs from the legal philosophy expressed in his earlier works. I will argue that his legal philosophy has commonly been misinterpreted in such a way that it is apparently inconsistent with this proposition, and that when correctly interpreted, it supports the proposition. The reinterpretation presented in this paper is based on two arguments. The first concerns Radbruch's concept of law. Many scholars believe that Radbruch developed his concept of law with reference to Heinrich Rickert's “value-reference”, according to which any false statute is acknowledged as “law”. However, I will argue that Radbruch developed this concept under the guidance of Emil Lask's teleological principle. The second argument concerns Radbruch's theory about the purposes of law, and his closely interrelated notion of relativism. I will present a manuscript that Radbruch wrote for his lecture at the University of Kiel in 1919 (Gustav Radbruch. Rechtsphilosophische Tagesfragen [Current Questions of Legal Philosophy]. Ed. Hidehiko Adachi and Nils Teifke. Nomos-Verlag: Baden-Baden 2004). In this manuscript, Radbruch gave preference to what he called the “transpersonal view”, in which personality values and collective values (i. e., the values of nations) are subservient to work values. However, he added to this the argument that personalities and nations are at the same time the precondition of any true community of work. In addition, relativism, from which standpoint he developed his theory before 1919, is critically described in this paper. Pursuant to this, I will maintain that his legal philosophy after 1919 should be reinterpreted as non-relativistic and that, as argued in his proposition, any statute that completely denies one of three given values is non-law.

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Most of us would accept that Rudolf von Jhering converted his methodology of law from the Begriffsjurisprudenz to the Zwecksjurisprudenz around 1860. It seems reasonable to say that something changed in his mind because Jhering himself said he had made a wrong way in his method of Roman jurisprudence. However, there must be considerable doubt that his change from the Begriffsjurisprudenz to the Zwecksjurisprudenz was a complete about-face.
The purpose of this paper is to point out a consistent concept of the jurisprudence that Jhering had accepted throughout his life in spite of some change in his mind.
It is important to summarize the concepts of the Begriffsjurisprudenz because it has some different concepts, one of which Jhering was said to have criticized after his “conversion.”
We may say that jurisprudence should deduce a conclusion from a text even if it is strange to approaches. One is a ‘global justice’ approach which applies principles of liberal justice directly to an international society. The other is a particularist approach which restricts the domain of justice to nations or societies.
If strict cosmopolitanism, which claims that duties to provide aid applied to all without distinction of nationality is right, then global justice command us to help the poor. Even if it is false, moderate cosmopolitanism is compatible with the global justice. And even if particularist approach is right, particularist approch is compatible with Pogge's theory of global justice.
He suggests what he calls an institutional understanding of human right. According to this understanding, having human right means any society ought to be organized that all members have secure access to the objects of their human rights. Responsibility for a person's human rights falls on all and only those who participate with person in the same social system.
He also suggests that present global order imposes severe poverty on the poor who cannot resist this order. According to Pogge this imposition deprives them of the objects of their most basic rights and it is human rights violation. Then what we must do is to diminish the injustice of the global order through institutional reforms. We must stop thinking about world poverty in terms of helping the poor.

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Whenever Mill's On Liberty is interpreted, it has been interpreted as the philosophy of autonomous but selfish human being. Most interpreters have thought as if On Liberty consists only of the chapters I, II, and III. This interpretation of On Liberty caused the conception of two Mills, the author of On Liberty and the author of other writings, principally Utilitarianism. And also, it makes the peculiarity of On Liberty prominent. But Mill himself declared in chapter IV of On Liberty, that “it would be a great misunderstanding of this doctrine to suppose that it is one of selfish indifference”. So, restricting On Liberty to the selfish-individualistic philosophy is inappropriate and to see only one side of the story.
The purpose of this paper is to reinterpret On Liberty by referring to the chapters IV and V which have not been taken seriously.
Especially in chapter IV, Mill claims that it is important to recognize that we care each other the part of a person's life which concerns only to him, out of good office. This is the clue. In my paper, I will name this relationship as altruistic mutuality, and point out that the feature of this concept is to present alternatives for others, not to control him. Moreover, I will argue that altruistic mutuality is legitimately founded on his principle of liberty.
And furthermore, I will show that On Liberty interpreted in this way opens the possibility of perfectionism whose end is not to accomplish each person's faculties but to create morally healthy society, and that On Liberty is the preparation to Mill's subsequent writings.

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“Organ donation for transplant should be done on a voluntary basis without payment in any case” - this is considered a global theory in the current transplant medicine, which is also written in recommendations and statements by WHO and World Medical Association. Most of the countries with organ transplant laws have set rules based on this principle.
But slower increase of donated organs now hinders further dissemination and growth of organ transplant medicine, as everyone knows, and the principle of voluntary donation by individuals seems to have run into a blind alley in terms of its effectiveness.
In recent years, primarily in the United States, there has been a debate over the introduction of financial incentive, that is, reward at the time of donation for motivating people to donate organs, and some states have already employed it as a policy. Advocates of incentive policy claim that payments to donors can increase donated organs as well as people whose lives are saved through organ transplant.
This paper will compare legal and ethical arguments of paid and unpaid organ donations, examine distinctions between them, and discuss the potential of paid donation as an alternative in modern society.

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Robert Putnam, who introduced the concept of social capital into political thinking, insists that this is crucial for “Making Democracy Work”. According to Putnam, “social capital refers to connections among individuals social networks and the norms of reciprocity and trustworthiness that arise from them.” The Neo-Tocquevillean Putnam proposes that it is through contact with neighbors and active participation in community groups or voluntary associations that people learn to communicate, to become interested in the public affairs and then to participate in politics. If an adequate stock of social capital is created through interpersonal connections, he argues, it is unnecessary to rely on laws, courts and enforcement by the state the rule of law.
Certainly, if all people were virtuously tolerant and never abused or harmed by others, demands for the rule of law would be less cogent. History tells us, however, that in spite of Putnam's ideal, human beings, especially majorities, are highly fallible. The rule of law is a last resort which encourages us to aim at universality, objectivity, stability and neutrality.
Furthermore, we need to recall accurately the views of Alexis de Tocqueville himself, who was swayed by misgivings that democracy might decline into standardization. He expressed anxiety that people would regard every new theory as dangerous, every innovation as onerous, and consequently cease to pursue ideals. It should be permissible for a person to be alone and to remain apart from the community in order to pursue higher aims.
Nevertheless, there is some truth in Putnam's thesis that social capital, incorporated in such things as trust, norms, and networks, makes democracy and our institutions work. Although “Making Social Capital Work” seems inadequate and risky on its own, we should make the best possible use of it.

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Berard Mandeville has been exposed to various criticisms. But I believe the critics were sticking only to his texts so superficially that they failed to discover what Mandeville really meant with his apparent contradictions. But once we penetrate deep into his writings, we can see what he really wanted to insist was a pessimistic anthropology, which is not only compatible with but also inevitable component for a more honest understanding of the free society.

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On the 10^th of July 2003, a bill cleared the Japanese Diet and was promulgated six days later ironically under the name and with the seal of the Emperor which is often said to represent the ‘patriarchal symbolic system’ of Japan. In defiance of the long-accepted idea that Parliament “can do everything except make a woman a man, or a man a woman”, this law enabled people with ‘gender identity disorder’ to legally change the sex registration on the family register (koseki). In this article we offer a brief description of this legislative process and a certain normative argument on it. Firstly, we examine the very concept of transgender, transsexual and gender identity disorder from medical and sociological viewpoints. In addition, the history and environment surrounding transgender in Japan is outlined here. Secondly, we take a look at the legislative process itself on its two phases formal and informal. The formal phase is concerned with the public/visible procedures mainly in the Diet, and the informal one with the ruling party's internal/nvisible examination. Standing on these analyses based on social and political reality, we go further to examine the contents of this law. Compared with similar laws in such countries as Sweden, Germany, Italy…, this new Japanese legislation is more severely termed, notably in that only people without children are allowed to change their registered sex. At the same time, the law contains a proviso that it is to be reviewed and opened to revision in 2007 (three years after its enforcement). Though legal philosophers have traditionally paid less attention both theoretically and practically to legislature than to judiciary, this epoch-making legislation and its process in Japan seem to offer us a meaningful insight into the former.

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