The Annual Meeting of Legal Philosophy 2004 was held in Hiroshima on November 13-14, 2004, under the auspice of the Japan Association of Legal Philosophy (JALP). Its general theme was “Libertarianism and Legal Theory”.
The concept of liberty or freedom has been discussed in philosophy of law in many different ways, but JALP had not yet devoted an annual meeting to this topic. In order to fill this gap, libertarianism both in theory and practice was focused on in this meeting, because libertarianism can be considered to be a purified version of classical liberalism as contrary to contemporary welfare liberalism. 7 speakers and 2 commentators were asked to make clear evaluations of libertarianism.

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It is often assumed that libertarianism presupposes rational, autonomous, strong individuals and is committed to “rugged individualism”. Not only critics of libertarianism, but also some libertarians themselves believe this is so. However, I disagree. In this paper, I argue that libertarians should not advance any particular controversial conception of human nature. Rather, they should acknowledge the great diversity amongst humankind as an undeniable fact and be wary of presenting some ideal form of human life.
With respect to human nature as it is, it is partly because real people vary in so many respects such as their beliefs, ideals, values, talents, capacities, inclinations, tastes, temperament, knowledge and so on that everyone is to be allowed the liberty-right to pursue their own individual happiness at will and governments should abstain from imposing any particular ideal on their citizens and inhabitants.
As for the ideal of human life, libertarianism must remain neutral among competing conceptions of the good life. It is true and only natural that libertarians, like others, should have their own views regarding human happiness and excellence, which are likely to differ from those of communitarians, welfare liberals and conservatives. However, libertarians do not hold such views qua libertarians, for a libertarian may voluntarily lead a life in a collectivist community or a disciplined monastery without any self-contradiction. Libertarianism is a doctrine of justice, not of human well-being or happiness.
Nevertheless, atthe very least libertarianism makes one assumption concerning human nature, and that is that bar some exceptions all adults share minimal rationality and autonomy. Hencecomes the right of self-determination. While communitarians, left or conservative, exaggerate cultural diversity across nations and ethnic groups and make little of the diversity between individuals in a group, libertarians recognize basic universal humanity all over the world on the one hand and emphasize the differences between individuals on the other.

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To what extent the libertarian defense of the self-ownership is valid? In this paper, I would examine Prof. Morimura's original theory on the justification of self-ownership which can be called as “physiological-intuitional defense of libertarianism.” A paradigmatic example which supports the theory is a lottery of eyeball: a public lottery in which every ordinary person is forced to participate and some elected. are asked to transplant his or her pair of eyeballs to the blind persons. Libertarians would not agree this lottery run by the government since physiologically imagined pain would be a good reason to deny it in the light of property rights for our own body parts. However, what about a lottery which transplants cornea under the condition of negligible pain and negligible deterioration of the eyesight? Some people would agree to join this lottery and the government could run it under the condition where people have a right not to take part in. This kind of lottery of transplantation shows how our physiological sense of self-ownership is ambiguous. The sense of the self-ownership of our body depends how we focus on its body parts. In addition, even if we could justify our body-ownership as a basis of our self-ownership, the degree of its justificatory power for our labor and products would not be the same. The question is to what degree a fundamentalist method of developing a systematic logic for self-ownership would be valid. I raise some alternative ways for the justification of private property rights system from a point of a Hayekian growth-oriented liberalism. Especially, I would examine a boundary problem of self-enslaving contract and a problem of “a pleasure of ownership” as a basis of private property rights system.

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Libertarians value voluntary groups, including associations and communities, on the ground that they are supposed to be formed by agreements. They think of people conforming to social norms as acting voluntarily if they are not coerced by the state. But conformity often results from cost-benefit structures which are not designed or created by anyone. If costs of violating social norms are prohibitively high, people will choose to falsify their genuine preferences. It is true that spontaneous norms are indispensable for reciprocal cooperation within groups, which is an important aspect or a necessary consequence of individual freedom. But some social norms are not optimal, and some collective actions impose serious negative externalities on outsiders. These may be called “community failures.”
In this article I examine how social norms are maintained, how they resolve the collective action problems, and how undesirable-in the light of people's welfare or fairness-social norms and collective actions can be destroyed. Then I argue that what is needed is the metabolism of social norms. “The expressive function of law” may exist, but we should bear in mind that spontaneous systems of assurance are often self-enforcing and robust, and that government officials are also under the sway of social norms. Instead, we should expect “norm entrepreneurs” who discover meaningful social norms and take risks of having a commitment to them for their subjective returns.

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まず「報告要旨」として送った文章を再掲する。
拙著『自由の平等』(岩波書店、二〇〇四年)に考えたことを書いた。第一章でリバタリアニズムに対する反駁を行っている。また、契約論的な理論構成からもリバタリアニズムが正当とする規則は導出されると限らず、導出されても規則の正当化に至らないことも述べた。また第二章では嫉妬や怨恨を持ち出して社会的分配を非難する論に対する反論を行い、そして第三章で私たちがどのような私たちであれば、分配はより積極的に支持されることになるのかを検討した。(第四章から第六章は社会的分配に肯定的なりベラリズムの議論の吟味なので、今回の議論には直接には関わらない。)この本は基本的には財の所有・分配について論じた本なのだが(それ以外のことを論じた本ではないのだが)、その範囲内については、基本的なところでは間違っていないことが述べられていると考えている。だから報告もその線に沿ったものになる。(関連情報はホームページhttp://www.arsvi.comをご覧いだだきたい。)
「Aが作ったものをAが所持し処分することは認められるが、それをBがとることは認められないとされる。/しかしこれを自由の立場から正当化することはできない。『私が私のためのものをとる』という状態と自由とを等値する人、自由とつなげる人もいるが、それはただ単に誤解している。この状態で自由であるのはAであり、Bは自由ではない。Bはしたいことができない、自由を妨げられていると言いうる。この状態を是認する立場を「私有派」と呼ぶならそれは自由の立場ではない。」(pp. 40-41)
つまり、所有・分配については、私の立場はリバタリアンの立場とはまったく異なっており、その立場は間違っていると考えている。ゆえに、以下に引用するその本の第一章の冒頭近くは、私としては比較的好意的な記述と言えるのかもしれない。
「これは別に論ずることにするが、リバタリアンの主張にはおもしろい部分もある。おもしろいことも言う人たちがなぜこんなことを言うのか、不思議に思える。だから考えてみようとも思う。/まず、国家が行うことの性質を強制と捉えること自体はもちろん間違いではない。むしろ本質を捉えている。国家が他と異なるのは、それが強制力を持つことであり、リバタリアンはこのことにはっきりと焦点を当てている。だからその主張は検討するに値する。」(pp. 37-38)
強制されることがさしあたり歓迎されざることであることを認めよう。また強制を介在させることに伴う厄介事が様々あることを認めよう-それをどのように軽減できるかを考えることは興味深く重要な主題である。しかし所有権を設定し保護する規則を設定するのであれば、それは強制であり、様々ありうる規則の違いは、強制の有無という違いではなく、どのような強制を行なうかの違いである。むろん、これと別に、ここに一切の規則を設定しないという選択肢 リバタリアンの中にもそれを支持する人は多くないように思うが-もある。しかしやはりこの場合でも、多くの人々は生きるに除去あるいは軽減することのできる制約を課せられることになる。それでよいかと考えると、やはり望ましくないと答えることになる。
そして以下は、学会大会で私が述べたと記憶していることである。そこでなされたように思う議論の一部にもふれている。またすこし論点を補った部分もある。
リバタリアンの言説は湿気ってなくて、それは私が好きなところだ。また、森村進の論などに存する一種の脱力感、妙な力が入っていないところも好きだ。このようにまず述べて、あるいは後で補足して、私は以下のようなことを述べたはずである。

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Is it that libertarianism can or must be defended for the consequences it will bring about? Since this issue was at the center of the discussion which took place among the speakers and commentators in our symposium I dwelled on this subject first. As the result ‘open consequentialism’ was supported, in which truth and falsehood of an ideology, such as libertarianism, is to depend upon unarticulated and numerous consequences that people will experience within the society committed to it. The reasons why one has come to believe or to abandon an ideology differ from one to another. Some general view point, descriptive or normative, can be said to be true if and only if there are always new examples to be discovered for its truth.
In the rest of the comment some other points raised in the conference were briefly summarized; distinction between economic and personal freedom, nature of meta-utopia, policy for spontaneity, insights and limits of economics, redistribution and national defense, and the roll of brave individuals in a libertarian society.

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Libertarianism maintains that the power of the government should be minimized. A question arises regarding the kind of legal system that can be justified from the perspective of libertarianism. In this paper, I attempt to define a comprehensive vision of a libertarian legal system and show the significance of libertarian legal theory.
I start by illustrating three fundamental backgrounds of libertarian legal theory. The first is an awareness that useful knowledge disperses widely across a society, as emphasized by F.A. Hayek. The second is a libertarian view of human nature. Libertarianism does not presuppose a stereotype, but rather accepts multiple types of human nature. According to the third background, which pertains to methodology, there exist two types of approaches a natural rights-based approach and a consequentialistic one.
I then explain the features of libertarian legal theory. I consider private law-based legal principles, restitution as alternative to punishment, and emphasis on the rule of law to be the three main characteristics of this theory.
Finally, I consider the implications of libertarian legal theory for today. The features of this theory appear to be similar to those of classical modern law. However, I believe that it should not be understood merely as a regression to classical modern law. Libertarian legal theory can offer a solution to the issue of legalization (Verrechtlichung), which is one of the serious problems faced by welfare states. In other words, it can be considered a legal theory for a “post-legalized society.” Furthermore, since the patterns of social ordering and conflict resolution become diverse, there exists a requirement for various methods of legal ordering other than those initiated by the government. I believe that libertarian legal theory has the potential to be used as a legal theory for non-government-initiated legal ordering.

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Libertarianism is not so popular among the constitutional lawyers in Japan. There are some reasons for that situation, but one of the most important reasons is that Japanese Constitution is, both in content and in its historical background, not suitable for the ideology of libertarianism. So under the constitution like that, libertarianism could hardly prevail, and there is no need for constitutional lawyers to take it seriously.
But this story is too simple. If libertarianism is not the vindication of “laissez-faire” capitalism, but the diehard claim for liberty of private life of individuals, then constitutional lawyers should not make light of the critical stance of libertarians to the paternalistic regulation of the government. Especially in Japan, constitutional theory of “double standard dependent on the aim of regulation” allows the government very wide range of paternalistic regulation on economic freedom. Japanese constitutional lawyers could learn much from the libertarian criticism of that theory.
But the problem of libertarian criticism is that they don't pay due attention to democracy. So taking libertarianism more seriously, we, Japanese constitutional lawyers, should come to think much about democracy, and I think it's good for us.

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In this paper I presuppose that liberty has a structure. Such structure of liberty also exits in private law. I would especially deal with some issues of contract law. Contract law is the core in libertarian legal theory. That is a reason why I focus on contract law.
Libertarians respect the principle of freedom of contract. This is one of main principles of so called “classical private theory” or classical contract theory. By contrast, modern contract law is based on Welfarism which is criticized by libertarian in general. If modern contract theory is in harmony with Welfarism, it seems that libertarianism contributes not to these field of modern contract law theory. But I believe that it is a misunderstanding about libertarianism. We should explore practical implication of libertarianism for modern contract law. I argue that libertarianism provide useful suggestions for resolving a number of problems that modern contract law theory have to cope with.
Firstly I indicate a number of dilemmas in modern contract law as follows. Although in modern contract law “consent by parties” would be often regulated for weaker parties, such regulations are not necessary produce the desired result. This is the point of libertarian argument. For instance, I refer to an example with regard to a relation between landlord and tenant in Land and House Lease Law in Japan.
Secondly I explain libertarian arguments about “the nature of market order” and “the knowledge of the circumstance in market”. Indeed there are substantial differences in knowledge between consumer and company. But such differences are not necessary good reason to intervene to market. According to libertarian argument, market order is one of spontaneous order. So the knowledge never exists in concentrated, integrated form. If we wish to make good use of such knowledge in market, we have to take seriously the libertarian theory.

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This comment addresses two critical points about libertarian legal philosophy. The first relates to the possible contradiction between the idea of property and freedom of contract, two ideas on which libertarianism is usually thought to be based. To clarify this contradiction, I refer to the argument made by Murray Rothbard. He argues that a person has a contractual duty only when his default amounts to ‘theft.’ Identification of contractual duty and theft in this way is, Rothbard insists, necessary to explain libertarianism coherently. However, considering the breaking of contractual duty as theft has to mean that rights and duties resulting from contracts should be correlative in some objective or economic sense. The correlation cannot derive from freedom of contract, but instead must stem from the protection of property and the relationship between rights and duties according to corrective justice. Accordingly, it is my opinion that libertarianism must allow for some intervention by a third party, possibly the state, in order to ensure this objective correlation. My second point addresses the close relationship between the idea of the freeianism. In this paper, I attempt to define a comprehensive vision of a libertarian legal system and show the significance of libertarian legal theory.
I start by illustrating three fundamental backgrounds of libertarian legal theory. The first is an awareness that useful knowledge disperses widely across a society, as emphasized by F.A. Hayek.
The second is a libertarian view of human nature. Libertarianism does not presuppose a stereo-type, but rather accepts multiple types of human nature. According to the third background, which pertains to methodology, there exist two types of approaches a natural rights-based approach and a consequentialistic one.
I then explain the features of libertarian legal theory. I consider private law-based legal principles, restitution as alternative to punishment, and emphasis on the rule of law to be the three main characteristics of this theory. Finally, I consider the implications of libertarian legal theory for today. The features of this theory appear to be similar to those of classical modern law. However, I believe that it should not be understood merely as a regression to classical modern law. Libertarian legal theory can offer a solution to the issue of legalization (Verrechtlichung), which is one of the serious problems faced by welfare states. In other words, it can be considered a legal theory for a “post-legalized society.” Furthermore, since the patterns of social ordering and conflict resolution become diverse, there exists a requirement for various methods of legal ordering other than those initiated by the government. I believe that libertarian legal theory has the potential to be used as a legal theory for non-government-initiated legal ordering.

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In this paper, I analyzed the theories of tradition in the works of F. A. Hayek and A. MacIntyre. Although both Hayek and MacIntyre criticize Enlightenment rationalism and emphasize the importance of tradition, there are great differences between their notions of tradition. While Hayek's notion of tradition is the tradition of rules of conduct, MacIntyre focuses on the tradition of intellectual enquiry. The differences also exist in their understandings of the relationship between liberalism and tradition, and in their theories of the progress of tradition. Hayek states that a successful free society will always in a large measure be a tradition-bound society, and that we should improve and revise our tradition of rules of conduct by remedying recognisable defects by piecemeal improvement based on immanent criticism. In contrast to Hayek's understanding, MacIntyre argues that in so far as we criticize the Enlightenment and emphasize the importance of tradition, we cannot defend liberalism. And MacIntyre also states that the enquiry of individuals as embodied in a tradition must involve not only discovery and an acknowledgement of what is given, but also the possibility of critical reflection on a tradition within which they find themselves, and such a critical reflection should not be restricted to piecemeal improvement based on immanent criticism. MacIntyre gave a detailed account of the progress of the tradition of intellectual enquiry in the theories of comparison between traditions. Finnally, based on both Hayek's and MacIntyre's theories of the progress of tradition, I present the theories of comparison between traditions of rules of conduct.

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The word “relationship” has a broad range of application and appears in various scenes in various meanings. My paper discusses on the concept of relationship within the legal theory, i. e. “relational rights”. Its main concern resides in the problem, “When and how can liberty be restricted from the perspective of the relationship” It looks as if the normative implication of relation depends on the context. But the concept of relationship here meets the criteria of legal universality which consists of equality principle.
The concept of “relational right” is polysemous. While four aspects of it are analyzed in my paper; (1) Right to Relationship, (2) Right by Relationship, (3) Right in Relationship, and (4) Right as Relationship, a special attention is paid to the “Right in relationship”. Then, it is clarified that this right has a peculiar implication with obligatory content. Last, some criticisms of the usefulness of introducing this concept into legal theory are countered.

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The purpose of this article is to put forward the argument that the role of the law and its relevant subjects should be to dismantle the structural discrimination in the society. The theories and practices of three feminisms liberal feminism, radical feminism and postmodern feminism are compared and discussed.
The liberal feminism's argument is that the female is an autonomous “chooser” and the aim of laws against gender discrimination is to basically remove obstacles for women to allow them to choose and decide by themselves. On the other hand, radical feminism believes that the role of women has been constructed and is deeply embedded in the society, especially by men, therefore their desires are also constructed. To change the structural gender discrimination which women are also part of, it is essential that women be made aware of problems through “consciousnessraising, ” and that through this feminist law should embody women's point of view and redistribute resources and privileges.
Postmodern feminism, however, denies the existence of the subject and rejects the use of law to subvert the gender system. The subject is not out there, it is rather the “effect” of the coherent but coercive institution of biological sex, gender, sexual practice and desire.
According to Postmodern feminism, liberal feminist law keeps the cultural norms and radical feminist law excludes women who are not typical sacrificed “women.” Considering the postmodern feminism's insight, the subject could be understood as a process to become a unique person, and that the task of law is to give adequate room to each person where she could imagine the future herself and try to be that figure. In this way, the law would subsequently lead to the erosion of the fixed binary gender system.

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What kind of meaning exists in discussing legal indeterminacy today It is often said that there is no meaning since legal indeterminacy is stale common sense. However, the radical thesis that law is wholly indeterminate is not common sense. It is the very radical thesis that we want to discuss. According to this thesis, law does not have the capability to determine the legal rightness of actions in advance. This conclusion is obtained from Wittgenstein's rule-following considerations. According to Wittgenstein, any rule cannot pre-determine the rightness of actions. The current legal practice is characterized by legalism which premises the conventional understanding that law is (partially) determinate. But, the radical indeterminacy thesis collapses such an understanding. We have to turn toward post-legalism.

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The two concepts of “right” and “good” have an important role in the theories of justice, including Rawls's liberal theory and the theories of his opponents such as libertarians and perfectionists. Even though they have different standpoints these scholars treat the two concepts similarly; in their arguments they unanimously presuppose the sole idea of “right”. They argue namely that though their concept of “good” they pursue are different from each other, all citizens in a society would accept the same “right” as the basic condition of their coexistence. Based upon this presumption, these scholars search the idea of “right” through theoretical or historical reflection.
Recently, however, scholars such as Chantal Mouffe, James Bohman and Jeremy Waldron have different arguments: they argue that it is impossible for the citizens to come up with the same idea of “right”, as there are a number of “right” competing against each other, just like there are various kinds of “good”. According to these scholars, in order to avoid a totalitarian simplification, the modern democratic society should not deny this pluralistic structure.
This paper examines the latter theory focusing on its implication to the theory of justice. The following two points are stressed among others: first, this theory will help our understanding of the pluralistic character of “right” in a democratic society, and second, this theory will offer us a new perspective for handling the problems such as (a) the neutrality of the state, and (b) the priority between “good” and “right”.

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I've been discontented with the absence of the theory of international justice, both in the theory of justice and in International Relations.
“The Law of Peoples”, J. Rawls'theory of international justice, is his third main work, and I think that it's useful to inquire his theory for constructing the theory of international justice. Therefore, in this paper, I try to examine his theory.
In the first chapter, I explicate the basic structure of Rawls' theory.
His theory is an answer to one of four problems, and the principles of international justice are worked out by the extension of political liberalism.
To begin with, I explain the constituents of his theory to elucidate its features. These constituents are the theory of justice as realistic utopia, “the society of peoples” as the international society, “political constructivism” as the procedure for working out “the law of peoples”, “the law of peoples” as the principles of international justice and his own peculiar conception of human rights, the theory of democratic peace for keeping the international stability.
In sum, he tries to show that political liberalism is universal enough to work out the principles.
But, I argue that he privileges liberalism, and objectifies nonliberal peoples, therefore, his pluralism is only apparent, and can't avoid westernism.
In the second chapter, I investigate two fundamental issues as follows.
First, I argue that Rawls'theory can't avoid westernism, since he privileges political liberalism and human rights. Therefore, alternatively, I propose M. Walzer's international pluralism.
Second, I argue that Rawls'critique of R. Gilpin isn't persuasive, since Rawls can't refute neorealism and the theory of hegemonic stability.Accordingly, I contend that Gilpin is more persuasive, since he accurately recognize the effectiveness of power in the international society.

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Professor Tierney points out the significance of the permissive natural law theory, which is identified as the main stream among rights theories since the 12 th century. On the one hand, the so-called modern natural law theory, one of whose exponents is obviously Thomas Hobbes, insists on the superiority of natural right over natural law. On the other hand, the permissive natural law theory makes both concepts of natural right and natural law combined mutually with each other.
According to Professor Tierney, the latter type of natural law theory should be regarded much more important than the former type of natural law. While the permissive natural law theory has been applied in the course of history, the community and its members have been brought into a kind of association that produces something new in the world. We can see such cases in the constitutionalism of the Conciliar Movement in the 15 th century and also in the ideal of religious freedom in the 17 th century. Both of these grew up within the framework of the permissive natural law theory. This theory is one of the elements that mobilized the community and its people for the development of constitutional government. His analysis of rights, however, never told us how conflicts were resolved among people before canonists in 12th century Europe contrived the rights theories. In pre-modern societies people had appealed to various ways of ordeal.
Adam Smith, a natural law philosopher, worked out the mechanism of the historical development of modern society. He recognized the difference between the judicial procedure of modern society and the ordeal of pre-modern society. Although he sometimes seemed too modern to understand enough about ordeals, Smith never lost sight of the importance of the problem. I think that it is suitable to start from his insight if we are to argue sufficiently for natural law theories.

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