The Annual Meeting of Legal Philosophy 2005 was held in NAGOYA on November12-13, 2005, under the auspice of Japan Association of Legal Philosophy (JALP).
Its general theme was “The Rule of Law in Contemporary Japanese Society-Ideal, Reality and Perspective”. In Japan, “the rule of law” has been emphasized as a basic ideal for the recent judicial reform. In this meeting, the various problems about the ideals, tasks and realities etc. of the rule of law (or Rechtsstaat) in contemporary Japanese society were discussed from the viewpoints of legal philosophy and public law. Six legal philosophers and three public law scholars gave reports and discussed these problems.

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“The Rule of law” has been used in different meanigs. But this is a legal and political ideal or principle, and there are three kinds of the rule of law. First is the rule of law in the modern constitutional laws of Western countries. Second is the rule of law in Japanese constitutional law, and third is the rule of law as a political ideal. Third one relates to what a good government or legal system should be.
At first, the history and development of the rule of law in modern constitutional laws of Western countries is considered. Next, the legal scholars' different views on the rule of law in Japanese constitutional law are examined.
Finally, formal conceptions and substantive conceptions about the rule of law as a political ideal are discussed. One of formal conceptions is formal legality, which was maintained by Lon L. Fuller, J.Raz and R.S.Summers etc. This is important for other kinds of the rule of law as well. On the other hand, substantive conceptions maintain the rule of just or good laws. But there is much controversies about what just or good laws are. Other several problems about the rule of law are also discussed.

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In this essay, I wish to explore the key elements of the idea of the rule of law in the history of Anglo-Saxon legal thought. My exploration, though sketchy, is with the perspective that the significant core of the idea of the rule of law in a historical context embraces us still today, and that its strands are grasped as a chain novel of the normative tradition of the rule of law we are required to succeed in current contexts. Based on this perspective, I analyze the various elements of the idea of the rule of law, particularly in the legal thoughts of British or American thinkers from 17th century to modern days. The place of the rule of law is recognized as an important component of constitutional justice that gives the basis of legal system; its key elements are grasped as strongly connected to a cluster of moral principles such as equal liberty for all, equal participation in democratic deliberation, and public reason. And the various strands of the thoughts of thinkers in law leading to these elements are traced in the history of legal thought mentioned above. In developing this kind of understanding, I claim that the key elements of the idea of the rule of law constitute the substantive texture or the multidimensional layers of the idea of the rule of law, and that we may utilize it as the resource for a further weaving of the web of legal rules and principles to pursue the realization of just society.

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In this article, the difference between the Recthsstaat principle and rule of law is clarified through analyses of the administrative and judicial law-making processes. Based on such analyses, pros and cons of the Rechtsstaat and rule of law are compared, and the conclusion is drawn that a way to unite the two law-making processes to work together in a balanced manner should be sought, and that reinforcement of the judicial law-making process is indispensable for rooting the rule of law in the Japanese society.

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The author first discusses why Japanese scholars in administrative law have seldom been attracted to the term “rule of law” despite frequent use of the concept in constitutional law, philosophy of law, and political theory.
Out of four possible meanings of the rule of law (1) “supremacy of law, ” (2) “prior use of very formal procedures” (either law-making in the assembly or adjudication in the court of law),
(3) “substantive adequacy of law” (including guarantee of human rights), and (4) “separation of functions” (rule-maker/rule-enforcer and prosecutor/adjudicator), the Japanese adminis-trative law theories have exclusively focused on the “supremacy of law” and the “prior use of very formal procedures” (but only the assembly version, which is commonly referred to as “doctrine of statutory reservation” meaning that prior statutory authorization of administrative activies is required).
The author argues that the rule of law as conceptualized in Japanese public law does not include, as far as administrative process is concerned, the court of law version of the “prior use of very formal procedures” nor the “separation of functions”. He also notes that administrative law scholars do not necessarily discuss “substantive adequacy of law” simply because that is for constitutional law theories.
He then discusses the importance for the Japanese administrative law to pay more attention to the court of law version rather than the assembly version of the “prior use of very formal procedures”. Though the traditional administrative law theories have focused on the assembly version, i.e., the doctrine of statutory reservation, it has become clear that in the administrative state, the failure of the assembly version is almost destined. In an effort to keep the current administrative state within the rule of law, he argues, the Japanese public law theories should reengineer its concept of the rule of law, and reform its understanding of judicial courts' role in controlling the administrative state under a new version of “rule of law.”
From this standpoint, the author discusses implications of the 1994 amendment of the Adminis-trative Case Litigation Law to the remodeling of the rule of law. He points out the two “messages” of the amendment which encourage expansion of both standing to sue and use of Tojisya (regular) suits.

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The present paper reconstructs the idea of rule of law as a response to the persistence of human conflicts and defends it against the criticism that it hides and speciously rationalizes the rule of men. It is pointed out that Hobbes, who correctly rejected Coke's perception of rule of law as a groundless defense of social tyranny of feudal powers including religious forces, provided a deep insight into the problem of human conflicts which even the Hobbesian social contract cannot overcome. This insight is developed by arguing that the establishment of the state as a collective decision making system and enforcement mechanism cannot prevent the persistent human con-flicts from degenerating into the violent clashes in the state of nature unless the state's power structure is subjected to the governance of the principles which enables the losers of the strife in political decision making process to accept its outcomes as something beyond the victor's justice and pay deference to the winners. The rule of law is reinterpreted and defended as constituting the governance of such principles. This implies that the rule of law constitutes the conditions of the legitimacy of law as distinguished form its rightness. A further elaboration of this point is given by showing that Jeremy Waldron's normative-positivist defense of the dignity of democratic legislation as a response to “the circumstances of politics” helps to clarify the distinction between the legitimacy and rightness of law although it fails to solve the question of what constitutes the conditions of legitimacy. It is concluded that an adequate answer to this question is provided by the “strong structural interpretation” of rule of law. The rule of law on this interpretation protects the proto-right to justice-review of the outcomes of constitutional as well as legislative strife and subjects them to the test of the universalizable and reversible justification which underlies competing conceptions of justice as their common conceptual core.

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How has the principle of Rechtsstaat developed in Germany? In this report I want to try to grasp how this principle has been situated in each society and situation and how its meaning has changed in its history by arresting development of various ideas of nations relating to that of Rechtsstaat. I pay my attention to what kind of significance the notion of stability has in the transition of the task of nations and to how important the notion of subsidiarity is as a principle of social ordering. I survey the meaning of principle of Rechtsstaat in German constitutional theories, situate the principle of Rechtsstaat in the developing process of the task of nations depending on the view of F.-X. Kaufmann, investigate the significance of subidiarity as a principle of social ordering, and lastly add some comments about the contemporary values of principle of Recthsstaat in connection with the progress of legalization and the existence of federal constitutional court in Germany.

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We must not forget that there are negative aspects in the idea of “rule of law.” Justice demands individual considerations as well as general fairness, and the universal character of justice sometimes opposes to individual considerations. It means that the idea of “rule of law” may become an obstacle to social changes and progress. This tendency has been discussed repeatedly. In late years, Critical Legal Studies (CLS) and post-modern legal theories that showed arising in 1980's pointed out the negative side in the idea of “rule of law.” We may think CLS to have criticized “rule of law” from a point of view of “indeterminacy of law”. In this article, I review the indeterminacy thesis brought by legal realism and CLS, and make a short discussion about post-modern topics such as Wittgensteinean paradox, reader-response theory and decon-structionist approaches to law.

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The idea of the rule of law is institutionalized and functions in different ways from country to country. The purpose of this report is to set forth a framework for comparing the different ways each state has designed the institutionalization and function of the rule of law understood as a constitutional principle. The rule of law as a constitutional principle orders the ruler, not the ruled or people without differenciation of the ruler and the ruled, to comply with law, the costitutional law in modern sense being a scheme to protect the ruled from the ruler. What interests constitutional scholars most should be the way and the extent to which the rule of law contributes to the guarantee of the fundamental values of constitutional law.
As the rule of law is a project to subject politics to law, the rule of law thinking presupposes the conceptual separation of political and legal spheres. Only when political activites can be translated into and captured by legal concepts can politics be controled by law. Controle reflects equlibrium of political forces, and in the final analysis the rule of law is a project to establish balance of powers.
We can distinguish two models of the rule of law: that of constitutional monarchy represented by British rule of law and German Rechtsstaat and that of constitutional democracy represented by American rule of law and french Etat legal. By combining with this distinction the difference between common law and civil law traditions we can decribe the disinguishing features of the rule of law of those states.

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This paper comments on discussions about the rule of law (and/or Rechtsstaat) that were presented by five legal philosophers and three public law scholars at the Annual Meeting of Legal Philosophy 2005. The focal point of comments is how to deepen our understanding of institutional aspects that are designed to realize effectiuely value-oriented aims of the rule of law through facilitating discussions among competing conceptions of the rule of law. Commentator's own view on the rule of law is summarized in the part 1. After examined views of each reports in their mutual relationship, the paper refers to future tasks of discussions about the rule of law in Japan, with special regards to the significance of the Justice System Reform for the rule of law.

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The purpose of this paper is to offer a tentative plan on systems logically consistent with libertarianism that respects personal freedoms. The arguments start from proving the following thesis. Specifically, in terms of libertarianism, a deceased individual's assets become unowned property in a purely theoretical sense, and therefore, inheritance institutions are denied without contradicting the right of private property. Consequently, problems about the lives of the bereaved arise from this thesis. In this paper, three systems that satisfy both avoidance of the bereaved problems and the position of the above-mentioned purely theoretical libertarianism are drawn.
First, in the case of denying inheritance institutions, how to manage the lives of the bereaved becomes a problem if the household economy has depended on the deceased. In order to solve this problem, necessity of “the state debt system” for the bereaved to buy the deceased's assets is pointed out. Second, because the time of death between a husband and a wife usually differs, special consideration is needed with regard to the spouse who is one of the bereaved. Therefore, by thinking of family institutions based on a legal system using the analogy of general partner-ships, “a married couple organization theory” is developed. In this theory, the income of the couple who have chosen legal marriage automatically belongs to the income earner and his/her spouse at a rate of one-to-one. Third, in the case of children, even if we accept the thesis of self-ownership, children cannot usually work. Thus, children may be deprived of various freedoms. In order to solve this problem, necessity of “the independence reserve system” by which a state sets aside a constant sum from individuals' births to a certain time and pays it at the term end is proposed.

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Normative judgments and their criteria are generally excluded as subjects of science on account of the dualism of facts and values. Meta-ethical naturalism, which attempts to present criteria for values in terms of facts, is therefore regarded as a fallacy. However, as normative judgments are produced through the workings of the mind of each individual, we may find some clues for examining the foundations or criteria of our normative judgments by analyzing the process of the working of our minds by scientific methods and thereby discovering its basic rules. This means that ethical problems can be approached and solved in the field of human science.
Indeed, we can find some useful scientific knowledge related to meta-ethical problems. For example, it has been demonstrated in some studies of cognitive psychology that judgments on moral values are decided by intuition, which is an emotional reaction, rather than by rational thinking. And according to recent research in evolutionary psychology, emotions function in order to gain benefits for each person in their reciprocal relationships with others. These scientific studies suggest that the ultimate foundation of normative judgments is in human intuition as an emotional reaction and the ultimate criterion of “good/bad” or “right/wrong” is whether it is beneficial to the individual in his/her reciprocal relationships with others. While there remains much scope for further verification, these studies suggest that it is possible to examine meta-ethical problems by scientific methods and support meta-ethical naturalism, which presents the foundations and criteria for normative values through factual statements.

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In this paper, I am based on the knowledge, which social constructionism has brought, in order to point out the problems of a conventional idea of equality. On that occasion, I examine both a theory of equality in the Constitutional law and one in the philosophy of law and politics. In the former, I place importance on understanding the concept that a specific existence of sexuality such as homosexuality is an immutable characteristic. In the latter, I certify the liberalists' attempt to establish the appropriate criteria in relation to distribution of goods. So far, the consideration for diverse existences of sexuality cannot have been seen among these theories of equality. Therefore, I focus on the positionality the sexual minorities who cannot have recognized themselves as lesbian yet. Then, by showing the reality of such minorities that have not been covered by the legal discourses on equality, I expose the critical point of legal practices. In the end, I suggest that the daily interactions between sexual minorities and others are to be the first step to transform our society.

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Following Rousseau's theory of people's sovereignty and his concept of law, Immanuel Kant described his ideal state as “Gemeinwesen”. He consciously and intentionally denied world republic in his book “Zum ewigen Frieden”. According to Rousseau, the virtue can become fruitful only within the context of “l'amour de la patrie” (patriotism). Rousseau's patriotism and republic theory is to be expected in a small city state, not in a large state. As such, anti-world republic dogma by Kant reflects the significance of patriotism in small state posited by Rousseau. Unlike Rousseau, however, Kant interpreted “patriotism” as directed at “Land”, and “Volk” as being a group with single ethnic identity, not as an universal “Volk”. Such distinctive characteristic of Kant's state theory has generally been assumed to have derived from his pre-modern character and historic circumstances.
In this paper, I suppose that the source of difference in the concepts held by the two distinct philosophers can be found in the difference of the size of states they presupposed. Rousseau considered his “republic” as a small sized city state, so the object of his patriotism could be pure and abstract fatherland, ignoring the traditional framework of property system (societas civilis). To the contrary, Kant struggled to form his state theory as a middle-sized territorial state, which aimed to destroy traditional and privileged property system and to separate territorial sovereignty from economical private land property rights. Therefore Kant's concepts of “Land” and “Volk” played an important role to build a theory of modern and republican territorial states. This indicates that it was logically natural for Kant to deny the concepts of the world republic.

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This paper will consider the legal validity of Georg Jellinek's legal theory.
Jellinek's theory on legal order is as follows: in his theory, legal validity stems from “the legal belief” of the members of the legal community. “Legal belief” consists of two elements, one is the “normalizing function of facts, ” and the other “the factual function of norms.” The former element originates from extracting norms from facts, and the latter element originates from normative consciousness that transforms into a ‹normative› fact. These two elements are in a competitive relationship, which results in legal order always encompassing an opportunity to progress and continuously develop and evolve.
However, this kind of theory on legal order contains two problems. First, there is a danger that this kind of theory on legal order to fall into a limitless relativism. This problem can be solved if and when the legal judgment of the legal community is based and rely on the unchanging and unique historical and cultural value of the community. Second, there is fear that this theory of legal order continuously enforce only the element of “normalizing function of facts, ” and that such a situation will result in a conservative society. To solve this problem, Jellinek emphasizes the element of “normalizing function of facts, ” while weakening the element of the other, thus, the concept of injustice (in German “unrecht”) and legal struggle becomes crucial in Jellinek's theory. Injustice (unrecht) is an illegal act committed on purpose, while legal struggle is a struggle to gain justice from the members of the legal community. Jellinek thought that the act of injustice (unrecht) and legal struggle will assure that the two elements will work competitively; therefore, insuring the progressiveness and continuous development of legal order.

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This article is aimed at clarifying how concepts and techniques of legal interpretation have developed in legal history by introducing “Recht als Wissenschaft” by Jan Schroder, a legal historian in Germany.
His study is important for contemporary theory of legal interpretation, especially how he explains the concept of legal interpretation in three periods by showing its connection to the concept of law. According to Schröder, the three theories of legal interpretation from 1500 to 1850 can be characterized as follows:
(1) From 1500 to 1650, legal interpretation was to pursue rational reason of law, for jurists considered law as God's commands or human rational commands. In this period, jurists were able to extend rational reason of law quite freely. So jurists were not aware of the difference between analogy and interpretation.
(2) From 1650 to 1800, legal interpretation was to pursue actual legislator's intensions, for jurists considered (positive) law as mere commands of a sovereign. Positive law had nothing to do with rationality. In this period, jurists were able to go beyond the meanings of words by interpretation, but not legislator's intensions.
(3) From 1800 to 1850, legal interpretation was to clarify the historical meanings of words by means of philology, for jurists (of the historical school) considered law as historical documents that a nation had produced over a long time. In this period, jurists could not go beyond the meanings of words by interpretation because interpretation was philological exegesis. Therefore, the concept of legal interpretation became the narrowest of the three periods.
Historically, it is obviously that the theory of legal interpretation is strongly connected with the concept of law. To construct the best theory of legal interpretation today, we must always consider not only what interpretation is but also what law is.

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