The term Risk Society, which was introduced in 1980s by a German sociologist. Ulrich Beck, is now widely used in Japan, and is referred to in a variety of issues and contexts which range from safety level of atomic power plants, dosage of antibiotics. GMO foods, or pandemic such as bird flu to anti-terrorist measures and global financial crisis. Main objectives of this year’s conference are to clarify and scrutinize the transformations in legal practice and thought with this term as a guiding index and framework, which subsequently leads to a critical analysis and diagnosis of our time, an era of uncertainty.
Three general issues are presented in the keynote speech to introduce and facilitate issue-based specific discussions in following sessions.
Firstly, the notion of risk society is re-situated in the context of history of epistemology with special reference to the notion of probabilistic revolution and the study of no-fault system, social insurance and emergence of the welfare state, which has been pioneered by Francois Ewald.
Secondly, diverse usages of the word risk are sorted out and located between two poles. i.e. risk-objectivism and risk-constructivism. Importance of the distinction made by Frank Knight a founder of the Chicago School of economics, between calculable risk and incalculable uncertainty is also touched upon, though briefly.
Thirdly, relevant topics in respective legal areas are overviewed. Those include: pros and cons of the precautionary principle in environmental law; increasing aspirations of deliberative democracy in face of incalculable risks in constitutional law; prevalence of the template contract forms over free and autonomous negotiations in private law; conflicts between preventive measures and protection of liberties and human irghts in criminal law: and loose and flexible confederation of peoples (which Emmanuel Kant and John Rawls dreamed of) versus centralized world governance over global risks in the field of international law or international relations.
Every single topic mentioned above inevitably evokes fundamental questions as to the possibilities and limits of human agents equipped with rational choice and free will, which has served as the foundation of the modern law.
The words like safety or risk have become the important concepts in the constitutional discourse today. So constitutional lawyers should take the idea of risk society seriously enough. Cass R. Sunstein is the one who took that stance, and criticized the precautionary principle from the perspective of good working deliberative democracy. But his proposition to take the precautionary principle as general principle for risk is very problematic, so we should find the way to stop the over-generalization of that principle.
Ulrich Beck developed his idea of risk society into the more general idea of reflexive modernity and he estimated this as the chance for deliberative democracy. But when we read the propositions of the democratic constitutionalists in United States after September 11. we could take risk society as the critical moment for the legal constitutionalism.
After all. we. constitutional lawyers, have many problems to be discussed in risk society, so we need the new theory to cope with that situation. But we also should cling to the existing theory and practice, if we want to deal properly with the challenge of risk society.
The issue is whether deliberative democracy can reasonably be expected to protect basic rights and liberties in risk society where people care about security and safety under the condition of deep uncertainty. According to radical deliberative democracy which John Dryzek calls discursive democracy, everything is subject to inclusive and critical deliberation, with an expectation that deliberative transformation of preferences and opinions will change things better. Against radical theorists. I think deliberative democracy at its best can not remain purely procedural and should explain somehow substantive principles and rights theoretically. In this respect, liberal constitutionalist deliberative democracy has a point At the same time, deliberative democracy should acknowledge that the final court of appeal are people themselves who are influenced by deliberative decisions. Radical theorists are right at that Deliberative democracy so understood is risky business because we can not
say for certain that actual deliberation will proceed properly and lead to desirable outcomes, panticularly in emergency situations. But although deliberation could not protect individual rights and liberties at the moment of panic, we might hope that through deliberations preceding and following panic, with constitutional rights enabling them, democracy would contribute toward protecting individuals over time.
In this risk society, one decision could have cumulative effects. i.e. a single decision to solve a certain problem leads to and produces another (unintended) problem. This paper illustrates this issue on three topics within the sphere of private law.
The first topic is the digital standard form of contract used in international swap transactions. It was formulated by ISDA (the International Swaps and Derivatives Association) and has been broadly accepted in practice. Yet further inquiries show that some of its features, such as an automatic security executing clause, are normatively dubious.
The institution of guardianship for adults is the second topic. It was newly introduced as a part of the Civil Code in 2000. Although it purports to enhance someone, lacking in legal capacity, his/her ability to realize his/her wilL the devices required for such empowerment’ would sometimes encourage others to intervene (in spite of the principal’s intent).
The third refers to the tort of personhood Courts have issued injunctions to uphold claims of the right to peaceful daily life: in one case to prevent a group of gangsters from using a neighborhood building as their office and in another case to stop supply of water which a scientific analysis found as not contaminated enough to be unfit for consumption nevertheless ordinary people felt that it was not fit for drinking and other daily usage.
In contrast to the first and the second cases in which one’s own decision or decisions by others on his/her behalf sometimes invite institutional intervention and control, resulting in the deprivation of his/her freedom to choose, in the third category, the use of injunctive relief based on the right of personhood indicates a different alternative where these injunctions eliminated possibilities for a string of new decisions.
This paper is a short commentary on the discussion by Yuki Asano at JALP Annual Conference in 2009. Asano’s report focused on the responsibility of decision-makers in the private law area, especially regarding standard trade form contracts in the international swap trade, guardianship of adults and current trends in tort law. Regarding the issue of the standard trade form contract. Asano criticized the dominance of the form-makers on international swap trades. Regarding the issue of the guardianship of adults, she argued that the guardian and others may exploit the ward’s self-decision-making. I agree that there is potential for form-makers in the international swap trade to have dominant positions over other traders, and guardians and others to have dominant positions over wards. In my view, however, their dominant position does not necessarily mean that they can abuse the power that they hold. Sometimes the result of the decision-making is more than their control. In a risk society, parties are not able to take decisions with impunity, and it is needed to reduce the burden of responsibility by regulations. Regarding tort law. Asano argued that there is a trend of restricting free decision-making in relation to perceived risky activities, which is likely to cause the destruction of our living conditions. She
also argued, however, that this trend was positive from the point of view of the development of the personal right (Persdnlichkeitsrecht). Asano acknowledged that this trend may bring about a closed society which doesn’t permit any innovative activities. To this summary of the debate. I would also add that the restriction of free decision-making will also potentially lead to the reduction of the burden of responsibility placed on decision-makers in the context of a risk society.
The purpose of this paper is to research Risk Society from the perspective of Environmental Law. Concretely. I took up the Precautionary Principle that has been introduced into Environmental Law both internationally and domestically.
I would like to mention two points regarding the future of this principle.
First, which paradigm should be used under this principle, the Rational-Instrumental (RI) model or the Deliberative-Constitutive (DC) model? The RI model has a presupposition that technological risks are objective, quantifiable, and the scientific uncertainty can be minimized to a manageable extent. However, the cases that don't fit this presupposition are those that this principle should be applied to. Therefore, in scientifically uncertain cases, basically the DC model should be used. On the other hand, in order to avoid giving the administration too much discretion, the Principle of Proportionality should be applied and the Cost Benefit Analysis should be considered.
Second, should this Precautionary Principle be applied to fields other than the environment and food, such as terrorism or war? If this principle is extended to other fields, its meaning will greatly change. In the fields of the environment and food, this principle has the benefit of protecting human life and health while causing the partial loss of business freedom. This principle would not cause the violation of the fundamental rights of people's physical and mental health. In the field of terrorism or war. when this principle is applied, a precautionary war will cause the violation of those fundamental rights. Thus, cases in the field of the environment and food are distinctly different from those in other fields when this principle is applied.
In other words, to extend the applicable scope of this principle beyond the fields of the environment and food will conflict with liberalism. When the principle is extended, its character will be structurally different from that applied only in the fields of the environment and food.
It has been presupposed the all individuals are free, thus the establishment of causation between activities and the damage has been required for such interventions in individual activities as regulations, levies, and administrative actions. Under the precautionary principle, to the contrary, precautionary measures should be taken before serious and irreversible damage to human health and the environment occurs even if the scientific certainty is lacking on the causation. But this principle has been counterargued that it can undermine the individual freedom, especially if applied speculatively and too broadly.
When either severity or probability of damage is not quantified, we have to choose either to wait untill becoming clear or to act before becoming clear. The latter risk-aversive attitude is based on the precautionary principle. This paper examines this principle, concludes that it can be justified in intervening into threats to human health and the environment when deemed serious and irreversible, and can be summarized in four points.
Firstly, the precautionary principle shall be applied when the threats come from economic activities, but not applied when they are of national or public security, because the loss caused by mistakes cannot be truly indemnified in the latter.
Secondly, under this principle, comparing possible alternatives is essential in confronting risk trade-offs. Economic considerations, such as cost-effectiveness analysis, can be a useful tool but shall not be used determinatively in making judgments whether to postpone actions even without full scientific certainty.
Thirdly and most importantly, this principle reverses the burden of producing evidence on risks, primarily to the industry and then to the Government because of proximity to and capacity to develop information.
Lastly, because of scientific uncertainty, the perceptions of risks differ especially among lays and experts. Thus, deliberative democracy is an affinitive decision making process under this principle, though not essential.
In recent times, it is apparent that there are the trends of the toughening of punishment, the expansion of punishment range and the acceleration of punishment period in Japan, on the background of the nation’s anxiousness so called the aggravation of the perception of public order and security, despite the number of crime itself does not increase and crime does not increase brutality. I can see this is because of the indication of the nation’s desire for risk control in the risk society. It seems that this type of symbolic legislation does not aim to enhance effectiveness but just to decrease the nation’s anxiousne.ss. And this type of legislation can lead to the way that punishing some acts apart away from the actual violation of the interests protected by law (Rechtsgutsverletzung). and it could be suspected to violate the principals both of acts and responsibility in terms of posing severer punishment that loose a balance of crime and punishment. Moreover, it can run into the dysfunction even as the tool of risk control by inciting nation’s anxiety.
On difference between objective risk and risk recognition, which frequently discussed today, we need to consider not only the possibility of distorted recognition, but inappropriate risk indicator, as its cause. Especially when we suppose that democracy shall respect each citizen’s free and autonomous decision based on his own evaluation of risk, we need to accept subjective risk as the given condition. Matsubara’s opinion that the deliberation in criminal justice came to be difficult due to the lack of reversibility in that field is appropriate, and thus we need to be cautious for the horror-house society to come, in which the others are thought to be dangerous in itself and to be excluded from we. who strengthen our union and have enjoyment on their exclusion, as Kazuya Serizawa put it. Rejecting the revival of traditional society as reaction to that tendency, however, we will face the temptation to establish the mirror-house society, in which all the subjective shall he surveyed indifferent to whether he is a part of we, or the others, since at least it offers us an equal, and thus fit for justice, society. What Matsubara's opinion showed us was. inspite of his own intent, that the evaluation of this new social image shall be the next step for us.
This paper aims to conceive a world order against global risks. National risks easily cross national borders in an age of globalization. Global risks. e.g.. swine flu. global warming, financial crisis, and terrorism, require global risk governance. The Westphalian system, which consists of sovereign states, seemingly fails to tackle with global risks because it is based on territoriality. However, it is a state that has the resources necessary to cope with global risks in a modern era. Allocating responsibilities to each state is an effective way to manage global risks. The Westphalian system is a prima facie relevant world order against global risks. This paper extends this insight by taking into account government networks and the diversity of risks. A state itself consists of government actors, each of which connects to its foreign counterparts. The diversity of risks urges a state to disaggregate into a number of
functional branches. A just world order ageists global risks is a multi-layered government networks.
This short article will raise some questions concerning Professor Takikawa's presentation as well as propose an alternative to the idea of global risk.
In his presentation. Prof. Takikawa proposes the conception of government networks on a global scale as a countermeasure to global risks such as terrorism on the premise that the traditional Westphalian or sovereign state system cannot sufficiently adapt to or counter the various global risks that we face today. It is true that this conception has certain advantages of possibly adapting to indeterminate variables and uncertain risks with more flexibility. However, it is problematic in the following two ways. First, this leads to the rise or creation of a transnational surveillance state which lacks democratic legitimacy of rule. Second, since global risk itself is a subject that has been socially constructed over time, the idea of government networks cannot fundamentally eliminate all irrational fools.
From such a viewpoint. I think that it is significant and necessary to recognize the global irsks that create publicness that transcend borders. This will undoubtedly generate the cosmopolitan common sense that will adapt to various global risks. In short it is the formation of such cosmopolitan common sense that restricts or restrains the construction of the fool. poses as a fundamental countermeasure to global risks, and is the path we must take. The recent trends of global mass media or the frequent exchanges and joint efforts between and/or among various governments indicates a trend toward the increase in the opportunities of the formation of ?whether we coin the term cosmopolitan common sense or not? a global public opinion. The more important thing is that we recognize such global risks and swiftly decide upon whether to take action or not.
My purpose in this paper is to account for some possibilities how reasonably people can be motivated to act along with rules of justice which help them get many interests, through two philosophers’arguments -- David Hume’s and David Gauthier’s --.
Over the past many years, a considerable number of utilitarian interpretations have been made on Hume’s philosophy, because it has been supposed that sympathy of Hume’s theory of justice makes us possible to comprehend or regard one's pleasure from general point of view, and that, it motivates us to act for increase in the sum total of pleasures. Though such interpretations was major until 20th century, as extensive researches have recently been done on the possibility how cooperation can be formed by interaction between each persons who are selfish and rational, the reviews into Hume's theory of justice (especially into convention) have been undertook by some philosophers, contrary to the traditional utilitarian interpretations of Hume's theory.
David Gauthier, who is a philosopher of them, insists that Hume's theory which criticizes the theories of contact law of Hobbes and Locke should be interpreted as a kind of contractarianism in respect of making a point of mutual advantages (he calls mutual expected utility) in convention. On the one hand. I agree with Gauthier’s insistence in the point of clearly explaining motivating reason to form convention through translucency that is a supposition from his contractarian position, but. on the other hand. I argue against his insistence in virtue of the difficulty in explaining how people are inclined to observe their rules of justice without regard to justice in our moral sense which Hume emphasized.
In conclusion, through the contrast between Gauthier’s position and Hume’s one. I will demonstrate that the rationality of our motivations to do justice should be sustained by translucency or value of justice, which are supposed in some realistic positions.
The aim of this paper is to clarify the relationship between liberal egalitarianism and nationalism in the context of immigration justice. I will begin by outlining Joseph Carens’ liberal egalitarian argument for open borders and Michael Walzer’s and David Miller’s nationalism argument for immigration control. I will conclude that the theoretical controversy over immigration admission lies not in whether you are in liberal egalitarian camp or nationalist one. but in three following points. First, whether you think freedom of movement is a fundamental freedom. Second, how much the international movement of people contributes to the global economic redistribution. Third, which criterion for selection of immigrants is morally permissible.
This article examines the limit of harm principle by paying attention to the opinions of three American moral and legal philosophers - Gerald Dworkin. Jeffery G. Murphy and Michael Moore - who reevaluate Lord Devlin in the so-called Hart-Devlin debate about the legal enforcement of the morality and by referring to the recent analysis of the collapse of the harm principle by Bernard Harcourt. The reason why I am interested in this topic is that the harm principle seems to be nowadays in a very difficult condition as a ground to justify and control the criminal regulation especially in the field of biomedical technology. Dworkin. Murphy and Moore are given a clue to the examination of the harm principle by Joel Feinberg. who has presented a liberal, fine criminal legislation theory in the tradition of J.S. Mill. While maintaining liberalism and the retributive theory of legal punishment, they give us the possibility of taking into consideration the moralistic reasons besides harm as justifying grounds of criminal legislation. To the harm principle, they each show an alternative viewpoint: conservative liberalism, perfectionist liberalism and legal moralist liberalism. From this, it is confirmed that ways open out to overcome the difficulty that the harm principle faces by developing the theory of justifying the criminal legislation which gives any other reasons than harm fair consideration and weight.
In this article. I shall examine why organ sales should be prohibited. First of all. I overview and analyze the current debate regarding organ sales. The analysis proves that the previous studies on organ sales have not paid attention to placing the burden of proof of the discussion and that they could not determine whether organ sales should be banned or not In order to overcome the shortcomings of the previous studies. I attempt to place the burden of the proof of the discussion by presenting the three legal conditions for endorsing organ sales. For each condition. I try to put the burden of the proof on the side of the pro-organ-sales debater or the con-organ-sales debater. By virtue of clarification of places of the burden of the proof, it is possible to understand how persuasive the previous arguments were. In addition. I scrutinize the argumentation supporting organ sales from the concept of self-ownership, which is thought of as the most powerful argumentation for organ sales. Finally. I opine that the right to organs should be construed as the right on the basis of family law. not as the right of property law.
This paper has two purposes. The first purpose is to make clear the structure of Dworkin’s theory on the political obligation. The second purpose is to grasp some implications of his theory for the theoretical studies of the constitutional law.
For Dworkin. the political obligation is founded on the basis of the membership of a genuine political community. To be genuine, a political community have to satisfy the democratic conditions. The democratic conditions consist of the following three principles.
1. The principle guaranteeing of the equal status for the participation to the collective decisions.
2. The principle guaranteeing of the equal concern to the interests of all members when the community makes collective decisions.
3.The principle guaranteeing of the moral independence of the individuals.
Dworkin interprets the modern constitutional law as a concretization of the democratic conditions. In other words the practice of the moral readings of the constitutional law works as the continuous concretization of the democratic conditions. On the basis of this understandings I propose the thesis that the appeal to the constitutional fundamental rights by the citizens should he understood as one way of the fulfillment of the political obligation at the genuine political community.
It is often understood in Japan that Michael Ignatieff was skeptical about the human rights norm when he published Needs of Strangers in 1984 and later on. has turned to the human rights supporter.
However, this understanding cannot explain why Ignatieff supported the U.S. military operation in Iraq War in 2003. Ignatieff also concluded that Kosovo operation was illegal, strictly speaking, under the International Law. but legitimate and even necessary morally.
Judging from the above statements. Ignatieff can not be considered as simple human rights supporter.
My interpretation is that it is his political belief as liberal democratic internationalist, embodied in his human rights theory, which supports even active intervention into other states such as Iraq by U.S. force as long as the goal and ideal is universal.