In recent years, the literature in the field of law and economics has grown rapidly and has attracted interest among some legal philosophers in Japan. However, the majority of jurists and philosophers seem to remain skeptical about the relevance of economics to general jurisprudence and specific areas of law. To explore this relevance, it is necessary to scrutinize the methodology of economics from the philosophical perspective and to examine the multi-faceted relationship between the market and legal institutions. This keynote paper briefly discusses some basic concepts, methodological features, and research topics of law and economics and of economics more generally. To begin with. I consider several fundamental economic concepts, such as efficiency and rationality, by refining the orthodox dichotomy between consequentialism and deontology and by referring to the implications the observations in behavioral economics have for the standard form of law and economics. Next major differences between economic methods and legal ones are identified, and the possibility of integrating the two bodies of methods is explored. Then. I discuss phenomena in interactive relationships between the market and legal institutions, including the paternalistic interferences by the legislature and the court into market transactions and the impacts of general perceptions and expectations among producers and consumers upon policy achievements. This paper concludes by summarizing the succeeding paper presentations and comments on them, each of which focuses on one or another of the topics mentioned above.
This paper consists of three parts, each one being meant to facilitate fruitful communications among economists and legal scholars.
The first part is devoted to the clarifications of the basic concept of Pareto efficiency vis a vis the related but distinct concept of social optimality which is defined in terms of the Bergson-Samuelson social welfare function. In addition, some remarks are made on the way how we should interpret the basic message of the fundamental theorems of welfare economics. It is claimed that the fundamental theorems are fruitful characterization of what the perfectly competitive price mechanism can do at equilibrium under ideal conditions, but they fall much short of justifying the use of actual competition in promoting human well-being in the market economy. Such a justification. if any. should be found elsewhere.
The second part presents some basic values other than the Pareto efficiency such as equity and social respect for individual rights. It is emphasized that there are two alternative methods for articulating these values, viz., the consequentialist method and the non-consequentialist method. Depending on the choice we make between these methods in articulating values other than the Pareto efficiency, the meaning and relevance of the basic conflicts between values as typified by the equity-efficiency tradeoff or the conflict between welfare and rights become conspicuously different from each other.
The third part turns attention to the concrete context in which we may illuminate some of the abstract points made in the paper. For this purpose, we have chosen the context of competition law and competition policy. It is claimed that the competition law is the basic design of the fair market game, but it should be constantly subject to the monitoring by competition policy authority so as to adapt to the changing economic environments.
In this paper. I comment on the importance of the distinction between the problem what is. or ought to be, qualified as a right and the problem of the extent to which an individual can concretely exercise his/her rights. That is the distinction between the qualification of right and the effectiveness of right respectively. For something to be qualified as a right implies that it is recognized as having a universal value at least for all human beings. Yet, in the exercise of a right we must consider differences in personal characteristics or social contexts, since the extent to which individuals can concretely exercise rights might differ greatly according to the differences in personal characteristics or social contexts. To respect every individual impartially, we must set up public rules concerning the effectiveness of rights, which will direct each individual in concrete terms of the doings and beings he/her can actually realize depending on his/her will. In proposing “The Impossibility of a Paretian Liberal”. Sen used a social choice framework to describe the freedom of action. He did so because he noticed that since an individual private action is nothing but a constituent of a social state, an individual is able to restrict the range of possible social states through changing his/her own action. A Broad but integrated framework of Consequentialism proposed by Amartya Sen is an idea that advances this approach. It assigns a certain array of weights taking into account the influences brought by exercising individuals’ rights. It is assumed that although the concrete array of weights may change according to variations in personal preferences or social institutions, how it changes continues to satisfy ethical criteria accepted by individual public judgments.
The law for protecting long-term employment in Japan is mainly done by case laws, which are implicitly based on common practices of large firms in the period of high rate of economic growth in the past but are not appropriate under the stagnated economy since the early 1990s. This paper first analyzes the implicit assumptions of judges to settle the disputes for dismissals such as monopolistic labor demand by a firm, homogeneous quality and preference of workers, but they are necessarily applicable to the actual labor markets. Also, there is a trade-off of interests concerning too strict employment regulations between those who are already employed and those who seek for jobs, accounting for possible impacts on the employment behavior of Japanese firms.
Secondly, the framework of desirable rules for dismissals in recession is suggested. This is to put an emphasis on procedures, rather than the judgment on adequacy of the dismissals. The procedure could be pecuniary compensations, the company's assistance to the workers for finding new jobs based on the consent of the labor union.
Finally, in the Japanese labor market where the long-term employment commitment and seniority-based wages are prevalent, it is rather difficult to move from a firm to another either voluntary or involuntary. Thus, the principle of equal pay for equal work in the flexible labor markets would be an important safety-net for workers facing risks of bankruptcy or laying-off.
In his work. Professor Yashiro argues for the liberalization of temporary employment and easing of regulations against dismissal of employees. He suggests the deregulation of the labor market in this manner is necessary to boost the economy as well as to assure free and fair distribution of work between regular and temporary workers. This comment aims to examine his argument from the viewpoint of two significant rights: the right to self-determination and the right to personhood. If these rights warrant protection, and his proposal infringes on either of them, it may be argued that the rationale of economic utility cannot be given priority and must be adjusted so as not to devastate the social order the.se rights protect.
First, beginning with the right to self-determination. Professor Yashiro stresses that freedom of contract within the labor market provide greater assurances of this right than is provided through regulatory policy, allowing various types of work beyond standard regular employment. It must be noted, however, that many people choose such part-time and irregular employment not because they prefer it. but rather because they have no alternative.
Second, with respect to the right to personhood. Professor Yashiro argues to abolish the current regulations against dismissal in order to diminish the disparity between regular and temporary employees. However, this approach actually means that all employees would face the same risk of dismissal without special legal protection. The right to personhood protects individuals from such commodification and subjection to the arbitrary whims of purchasers.
The right to self-determination argument is suspect because of its ambiguous nature and latent paternalism in actual practice. Instead, this comment proposes a right to personhood which prohibits excessive commodification of individuals in order to protect the idea of human dignity indispensable for social order. This means that, like free prostitution, a free labor market should not be adopted.
This paper discusses economics effects of public policy in Japan by investigating recent attempts on fiscal structural reform, social security reform and tax reform. This paper emphasizes the economic constraints such as credibility, rational expectation, crowding out and commitment on various agents including consumers, firms and governments.
I consider the political aspect of fiscal reconstruction movements in Japan, and investigate the behavior of government's control on debt issuance and its effect on the real activities of private agents. I also discuss benefits and costs of fiscal reconstruction and desirable debt management policy. Since Japan is an aging country, it is important to investigate social security reforms from the viewpoint of intergenerational conflicts. Finally. I explain Japan’s tax structure and investigate desirable tax reform to attain successful fiscal reconstruction and economic growth.
Especially. Japan’s fiscal policy in 1990s created a problem of a tendency to postpone structural reforms. During the Obuchi and Mori administrations in the late 1990s. structural reforms were put on the back burner for three reasons. The first was that everyone expected that things would get better even before such hard-hitting measures were implemented. Structural measures that would reduce the budget deficit were put off in the hope that the deficit would begin to shrink once the Japanese economy recovered. The second reason was that scandals swirling around the Ministry of Finance and the Bank of Japan in 1990s undermined public confidence in the central government and the ruling political parties. Even if policymakers were correctly informed about the merits of reform, the voting public was unable to share that information and therefore could not properly evaluate their policies. Third, fiscal consolidation and other structural reforms were put off because of short-term benefits needed by the coalition governments. Finally, lobbying activities of local interest groups were exaggerated.
This paper is a reply to the Prof. Ihori's 'Economic Effects of Public Policy'. In this paper, firstly we take a glance at the
(historical) difficulty of connecting jurisprudence and public finance studies. Secondary, we try to find the core of the Ihori's argument and it can be summarized as 'the concern for the coherence of a policy'. Thirdly, examining that core argument of Prof. Ihori. we focus on the concepts such as politics, leadership and government (that is 'legislators') used in his argument so as to connect the context of this paper to the jurisprudence, especially the legisprudence. In this substantive section, we examine the normative premise of Prof. Ihori's argument and try to show the necessity of considering the problem of 'how to control the legislators'. And lastly, we put some external comments on Ihori's argument, especially about the absence of 'power' and prospect for the speculation into the anthropological foundation of legislators.
What is 'Law and Economics'? What does it inquire? How is it related to economics and law? I will find answers to these questions with reference to the economic theory of R. H. Coase as a founder of 'Law and Economics'.
Market is one of the most important concepts in economics. But market in itself, as Coase insists, has not been a subject of mainstream economic theory. It is simply assumed to be there and processes of exchange are analyzed, disregarding the function of real markets.
Exchange transactions in reality are performed in the institutional settings and with positive costs. There are many kinds of market as institutions to promote exchanges. Some legal rules, whether they are enacted and enforced by private or public sectors, are necessary' for each market to function adequately. Every transaction costs something positive including expenses for instituting and administrating law. though standard microeconomics takes costless transactions for granted.
If transaction cost were zero, legal positions would not have any effects on allocation of resources and the value of production would be maximized at any rate. This is the famous Coase's theorem. It has been, however, misunderstood in two ways by many economists. Firstly, it is often referred to in the context of negative externality such as pollutions. But Coase notes reciprocal character of the problem. If the polluter is supposed to be liable to the damage, he in turn will be damaged. It is essential to avoid the more damage. Secondly, with Coase's theorem he intended to demonstrate real transactions never happen without costs and to prompt the study of institutional framework of economic actions, but almost all economists have concentrated their attention to so-called the Coasian world, that is. the unreal world without transaction costs.
I think 'Law and Economics' as a subject can take two forms. The first is the Coasian type, which studies how legal system influences the working of economic system. This belongs to economics. The second type, by contrast, is engaged by jurists including legal philosophers. It aims at mastering economic way of thinking and making use of it to understand and interpret law. Jurists who use 'Law and Economics'. however, cannot and should not propose any legal policy or interpretation without knowledge of the facts about economic working, which is the subject of positive economics. Economic theory, however, is incapable of answering a well-known normative question, that is. whether law should be efficient or not. for it only analyzes how people or economic system behavior when the goals are given. Economics thus cannot and does not take seriously rights in the sense of natural ones.
This short comment on the presentation by Professor KAMEMOTO Hiroshi is to explore the new waves in economic analysis of law. understood as a methodology to model and evaluate the society. I showed that theories and findings in various academic fields such as brain science, cognitive science, social psychology, computer simulation, and evolutionary theory are enriching the scholarship of law & economics as well as economics. I concluded this comment by saying that abstract debate on a methodology would be of little value and that constructive criticism on concrete findings should be welcome.
Professor Yashiro applied standard logic of Law and Economics to Labor market and deduced conclusions which are commonplace among economists but surprising among lawyers; legal intervention for the purpose of protecting workers’ job will hurt the least advantaged by causing their unemployment etc. Although such inference looks solid within the model of microeconomics, we still have to wait and see the results of each policy because in real markets competition is far from perfect and transactions are anything but costless. Professor Ihori discussed the social and economic reactions, both facilitating and obstructing, to big policies: financial, social welfare, and tax reforms. Law, he said, sometimes works in order to have interest groups trust government's commitment. But since full commitment of‘ ‘at any cost’ type in such cases is neither feasible politically nor good as itself, people will understand such commitment of the government or of the party in power in more political terms than legal. Professor Suzumura analyzed the concept of Pareto efficiency and defended ’compound-eye approach’, i.e. at the same time consequentialist and proceduralist in evaluating social institutions. Considering the fact that our social institutions are operating in the circumstance of huge transaction cost (TC which makes the whole process pass-dependent and historical the explanatory power of modeling theories of social choice school might be limited especially when the number of the actors are millions or more rather than two or three. Professor Kamemoto’s study of Ronald Coase was impressive that main implication of Coase’s concept of TC is rather to analyze and explain the existence of such social institutions as laws, corporations and markets in the real world with TC rather than to speculate about counterfactual world of no TC as in so called Coase's theorem.
It is obvious that economists would be better with legal training and lawyers with economist’s perspective. There are vast area of theoretical interest between law and economics. But practically, we should also have to know the limitation of each knowledge while maintaining common sense skepticism to both.
The purpose of this essay is to examine the relation between law and time. At first, 'time by law' and 'time in law' should be distinguished. 'Time by law' is social time order constructed by law, and 'time in law' is internal time structure in law. The former is about role of law, and the latter is about structure of law. Law has time structure corresponding with its time role, and legitimacy of law consists of both kinds of time. Sense of time diverges in each person, but common time should be shared for social practice. Law is not the only instrument, but the most powerful one for construction of social time order. Predictability ensured by law enables us to make our life plans. If our memories conflict in legal practice, judge will determine which past should be regarded as true, by examining existing evidences of both sides, in the end.
Both kinds of time locate in present, not in past or future. Past exists in present only as memory. and future only as anticipation. Therefore legal practices need not commit to the reality of past and future. This 'legal presentism' is well philosophically explained by 'evidence presentism'. Presentism is ontology of time which insists that the only present things are real, and that past and future are unreal. What makes propositions about past or future true is a difficult problem for presentists. In this essay. I support 'evidence presentism' proposed by Tora Koyama. that insists only present evidences can be truthmakers. This theory is compatible with legal practices. Only the present things, including conventions naturalistically described, can generate an agency with accountability and time structure of legal practices, not vice versa.
In this essay, I shall explore the relationship between feminist legal theory and contemporary studies on the concept of law. I shall then .seek the possibility of more productive dialogue rather than mere accusation among themselves.
Feminist legal theorists have fiercely criticized law's claim to neutrality or autonomy. Yet their attitudes toward law are diversified into the broad spectrum from the optimistic reformism within law to the detached pessimism over such legal reforms.
I shall argue that feminist legal theory needs to tackle the studies of the concept of law to escape from the predicament caused by rigid dichotomy between legal optimism and pessimism. The main focus of my argument is the thoughts of normative legal positivism.
Legal positivism is often caricatured and criticized as a formalistic approach which disguises gender biases behind purportedly value-neutrality. Its worth, however, must not be overlooked. There are the affinities for several themes such as anti-essentialism between legal positivism and feminism (at least concerning its post-modern strands). The appreciations of the affinities and differences deserve to a close research.
In the course of argument, we can use the sketch of the problematics figured by feminist legal theorist Nicola Lacey, who has been committed to the tradition of English analytical jurisprudence and at the same time influenced by the deconstructive thought of Drucilla Cornell. To connect Cornell's utopian imagination to the actual institutional reform of the legal system. Lacey scrutinizes the argument of normative positivism, especially ethical legal positivism (EP) set out by Tom Campbell.
EP encourages to engage in more radical social reform through democratic process rather than judicial process, although EP's antagonism toward judicial review of democratic legislation has a substantial danger for minority protection against the tyranny of majority. I try to show both EP’s advantages and dangers for feminist legal theory and construct a standpoint for further research.
Most issues had traditionally been considered trivial, or 'no problem' until feminists identified them as attention-worthy, and undertook to resolve the imbalances.
As these issues entered the judicial system, the recognition of 'the difference/equality dilemma' became apparent. Typical examples concerned the unequal treatment of women and men: where one side stressed perceived differences that mandated different treatment between women and men, while the other side dismissed such differences as discriminatory, and urged for equal treatment under the law.
This article focuses on various approaches to this dilemma taken by Martha Minow and Drucilla Cornell. Minow's analysis concludes that there are unstated assumptions, which cause the dilemma. She proposes a new approach, which she terms the 'social-relations approach', to expose these assumptions and draw attention to many real differences in our society. Cornell examines the fundamental concept of 'person', and argues that an 'imaginary domain' should be secured equally for each person. Cornell's theoretical work makes it possible to argue about many issues in the name of an equality that rests on differences.
There are many articles referring to L. Lessig and his regulation theory, especially his concept of 'architecture' also in Japan. But what is the architecture, not in cyber-space but in real-space, and where is his theory in the American legal thought arc obscure and ambiguous for us Japanese. Especially, the ambiguity of 'architecture' seems to have led to a misunderstanding.
In this article, by applying Lessig's regulation theory to K. Pound's Social Control theory, the author verifies that 'architecture' in cyber-space is the code, and it in real-space today is information or date. And I suggest Lessig's 'regulator' corresponds to Pound's 'agency'. It is necessary that the framework of Lessig's regulation theory is grounded on another superior architecture in real-space, if Lessig desires his theory to be legal theory in real-space.
The author suggests that Lessig tried to seek this architecture, but can not succeed it. It is in Pound's Social Control theory, especially ideal elements. Lessig is not aware that, so he could not find out it in himself. Otherwise he is one of legal realists today who tries to place the ideal element out of law.
But if these indications are right he is at least one of the legal pragmatists today. If so. he could add the concept of 'market' and 'architecture' to agencies of Pound's Social Control theory. But the higher and higher the utility of agencies, 'market', 'information' or 'architecture' and so on which we have acquired, the more important the ideal element in legal theory. We jurist, especially legal philosophers, have been embracing this problem from the past to the future, because the utility requires a conscious control by human nature.
The purpose of this paper is to discuss the relation between legal methodologies and theories of constitution of C. F. v. Gerber and Paul Laband who are positivists of constitutional law (Staatsrecht) in the 19th century in Germany.
Positivist theory of constitutional law and its view of state as artificial person are criticized for its formalism as outdated theory.But.in this paper. 1 will confirm that they tried to ensure that the juristic independence from other fields by limiting its object to description of national power. Moreover. I will insist following two points: (1) Gerber’s theory of status-constitution retreated as his legal methodology progressed. (2) the views about the national power in later Gerber and Laband corresponded with the modern constitutional theoretical model which distinguished state and society strictly. Finally I’d like to propose a more consistent alternative model.
In this article, I explore whether we should be able to criticize other cultures, and if so, how we should criticize them when we face others who commit to cultural practices which we do not share in the culturally plural world. For example, should we be able to criticize illiberal culture on the basis of liberalism? To address these questions, I focus on the arguments of Joseph Carens.
At first. I examine Carens' general methodology on the question of justice. He adopts a contextual approach. He is significantly influenced by Michael Walzer's. above all Spheres of Justice's, methods. Then I turn to Carens' arguments about cultural criticism. It consists of three parts. First, I consider his 'concentric circle' model as a method for identifying 'us' (the agent of criticism) and 'the others' (the objects of criticism). This model is based on a consideration of the thickness of culture. Second. I consider the kinds of arguments for criticism and counter-criticism. Third. I offer some 'manners' which we should keep in mind when we criticize other culture. They are derived from several concrete examples and contextual considerations which Carens provides. And one of the most important 'manners' is to avoid self-righteous criticisms which are based on biased view or ignorance about others or ourselves.
Finally I briefly review the implications which Carens' arguments have for the problems of cultural plurality.
This paper aims to demonstrate the thesis that the duty to obey the law is not particular. To show this. I begin by examining the difference between the duty to obey the law and political obligation, though they are usually used interchangeably. I argue that aliens staying in a host state do have the former but not the latter. Thus the duty to obey the law does, pace John A. Simmons, not meet the particularity requirement, while political obligation does. The duty to obey the law is rather regarded as the duty to reach a global juridical state (status iuridicus), which is discussed by Immanuel Kant. I conclude that we owe political obligation only insofar as it is a useful way to discharge such a universal duty.
For the theory of the duty to obey the law. its introductory discussion is as important as its main discussion. In order to bring out the importance and role of theory of the duty to obey the law. we cannot avoid examining its practical significance as well as its theoretical specificity. Here I propose to focus not only on the traditional problem of 'evil law' but also on the problem of 'doubtful law'. Each provides the means to overcome the skepticism about the importance (or, theoretical specificity) of the theory of the duty to obey the law. The former, 'evil law' approach have pointed out that the concept of law's content-independent morality - legality, or L. L. Fuller's 'inner morality of law' - is the key to establish the general duty to obey the law. Besides, the latter, 'doubtful law' approach opens up the perspectives to a new domain of inquiry on the conditions of subjects who are expected to obey and respect their law that is, the conditions of citizenship or law-abiding morality.
Must we adhere to ask and solve the problem of obligation to obey the law? An affirmative answer to this question is not self-evident. On one hand, legal positivists (like Matthew Kramer) who attempt to build a comprehensive descriptive theory of law which covers all the phenomena of law around the world, deny any necessary relations between the concept of law and morality. So they wholeheartedly accept that an evil law is also a law. but they reject the idea that law in general has a value which deserves the basis of obligation to obey the law. On the other hand, for natural law theories (like Michael Moore's) that argue we should recognize the normativity of law only when the law is morally just, an evil law is basically not a law (except when the evil law is useful as a heuristic to find what is morally just), so the problem whether and why we should obey evil laws just because they are law, is not a problem from the very beginning. Legal theories mentioned above treat useless the arguments to solve the basis of obligation to obey the law. But if we recognize that when we fulfill our obligation to obey the law. we should not only comply with laws, but also occasionally we should disobey them in order to improve the law to conform to common values of our society, it becomes clear that it is not sufficient to ask whether laws are useful for us to follow good or right reasons. Rather we must ask whether law's have the intrinsic value of law sufficient to ground obligation to obey the law.
J. S. Mill thinks of individuality as the most essential of human interests. Individuality is equivalent to freedom as meaning self-determination - the principal condition of and main ingredient in self-development. Accordingly, non-interference is, for him, a vital prerequisite of the good life: it is a fundamental presupposition of his liberalism that individuals should not be interfered with unless their activities can be shown to injure the interests of others. But in addition to the individualist-functionalist strain in Mill's thought there is also a strong strain of skepticism and this is a fundamental component of his liberalism. As well as presupposing a particular view of the nature of man. Mill’s liberali.sm also rests on an empiricist view of the nature and possibilities of human knowledge. From this point of view, fallibilism is seen to be one basis of his belief in toleration, k corollary of Mill's fallibilism is his conception of human nature as essentially open and incomplete. His doctrine of individuality and self-development, on the other hand, appears to imply that the individual is definable by certain necessary and permanent characteristics. Following a discussion of the empiricist and fallibilist strain in Mill's liberalism, this paper offers an interpretation of Mill's view that reconciles these two seemingly discordant elements in his understanding of man.