Lawyers, jurists and law professors have shown increased interests in the methodology of studying the judge-made law in these days. Our experiences last year taught us the necessity of going back to the start-line to make clear understanding on what is the judge-made law. Our second symposium was held, in Spring, 1964, on this line, with Prof. T. Kawashima of Tokyo University as the general reporter.
The general reporter began with the proposition relating to the “frame of reference”, indispensable for the sociological approach to the legal phenomena, called the judge-made law, and tried to present new definition of such traditional concepts as “precedent” and its “binding force”. He went on further to show some realistic modus of the past decisions in civil matters as they function as precedents. The two other rapporteurs, Prof. Ryuichi Hirano of Tokyo University and Prof. Inejiro Numata of Tokyo Metropolitan University, made their individual comments on the subject quite clear in their respective fields of criminal and labor law. Some serious problems in the realm of public law, which had not been covered by the constructive statements by the rapporteurs, were raised during the question and answer period, by Prof. M. Hasegawa of Nagoya University, Prof. H. Kaneko of Tokyo Metropolitan University and others.
The lack of uniform understanding, among the participants, of the basic line, dividing the problems of pragmatic jurisprudence from those of sociology of law, as to the case law, caused confusions in their arguments, to our great regret. The chairman had to preside the confused arguments only to reconfirm the fundamental discord regarding the definition, scope and role of the sociology of law. It was admitted, at the same time, our choice of the subject and its confinement to the problem “what is the case law ?” for the symposium, turned out inadequate and left the difficulties for the more constructive arguments since “what we understand by the case law” necessarily leads to “what constitutes the case researches”, the principal problem of our last symposium.
It is not to be neglected, nonetheless, that our meeting made a remarkable contribution to the pulling down of the barriers which had kept the professionals within the narrower field of their own specialization, through the arguments related to the problems of common interests. (Major contributors to the meeting, other than those referred to in the foregoing summary, were Prof. S. Tamura, M. Kaino Esq, Judge M. Hanada, Prof. S. Yamamoto, Prof. I. Kato, Prof. T. Ariizumi, Prof. M. Nishihara and so forth.)

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This article has been written with the object to bring the methodological problems into relief, which we are bound to encounter in our scientific researches in the administrative law cases. The past academic trends in our case law studies would be generally represented by the three major schools-the conceptualistic, the realistic, and the social-scientific-with their respective characteristics as follow:
1) the conceptualistic approach-a traditional view on the case law studies. The followers of this school have tried to make their own subjective evaluation of the cases through their comments on each case or a group of cases, to find and declare the judge-made law, the specific legal rules applied to the case or cases.
2) the realistic approach-Prof. Kawashima of Tokyo University has been advocating this approach, with emphasis upon the facts found rather than the rules applied, toward the better assurance for the predictability of future decisions, on the basis of the realistic patternization of the past trends in the decision makings.
3) the social-scientific approach-Prof. Hasegawa of Nagoya University favors the bare facts, rather than the facts found, as the start-line of case law analysis, and contends that more attention should be paid to the legal ideology which plays crutial role in the process of decision makings.
It is only after the World War II, the academic concern, in the realm of the administrative law, has been extended to the case law, and they just followed the traditional line in their researches in the judge-made law. Little reexaminations or reconsiderations on its methodology have been reported. The lack of methodological reevaluations reflects the scarcity of the settled principles or the fluidity, in the court room decision makings, as compared with the other fields of law.
Individual timidity or spiritlessness in the claiming of their own rights as well as the traditional public law maxim of the prevalence of state power have contributed much to prevent the courts to establish the principle. It is no wonder, under those circumstances, the difficulties present themselves in the establishment of the principle and in the classification of the situations which bring forth the law suits. Such constitute the particular characteristics of the administrative jurisprudence as they are. If one realizes the contemporary community situations, calling for a drastic change or replacement of the fundamental principles in our positive public laws, the administrative law in particular, built upon the understandings of the community situations of the past era, with limited modifications or transformations, one may easily find the defect and limit of the realistic approach.
Studies in the administrative law cases should be done in the pursuit, not of the normative aspect of the judge-made law, but of the function of our positive legal system, i.e., how the system has worked or is working, in its reality. It is required, needless to say, not only to begin our researches with the bare facts, but also to analyse the community demands and the national legal policies involved in the issues or the controversies, in the broader light of social science. The presentation of constructive policy alternatives, worthy of pragmatic use and attention, could emerge itself only from the depth of such a realistic analysis into the particular characteristics of the situations.

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It has been recognized, in the methodological controversies covering the civil cases, that decision making consists of judge's value judgment, a substantial weighing of conflicting interests in a particular situation. This general formula applies to the commercial cases as well. It is hardly possible to draw a distinct line to separate the “commercial” type of conflicting interests from the “civil”. The conflicts of both homogeneous and heterogeneous interests, in terms of participants and goals to be pursued, present themselves in the situations giving birth to the commercial cases. The commercial relations differ from the civil situations only in the degree of the complexity, the complexity of conflicting multiple values and interests. Clear evaluations and examinations of the correlations or interactions, accordingly, among the facts, conflicting interests and their qualifications, would merit our special attention in dealing with the commercial cases.
A practical view point would disclose that the commercial tribunals have functioned to supplement the legislative lacunae, taking place through the constant birth of new types of business enterprises or activities, falling outside the scope of the statutory provisions. To the more realistic eyes, the destined role assigned for the tribunals appears sterile and inexpedient, since the general investors or consumers rarely bring suits to the courts by themselves and the business enterprises prefer normally other means to settle the matter; through, for instance, arbitration, conciliation, mitigation or negotiation.
Granted the judicial decision making would give an influential impacts upon the legislature for the revision of the positive precepts, big enterprises, quickly responding to the decisions, put pressures on the legislative revision processes to deny, through the parliamentary authority, the progressive judicial decisions. Under those recent legislative trends and circumstances, it could be easily perceptible more attempts should be directed toward the better embodiment of academic influences on the legislative processes rather than to those contentions concerning the statutory interpretations to be adopted or applied within the judicial processes, since the case law studies have less significance in the realm of commercial law researches. Little significance could be given, by the same token, to the “predictability of future decision”, the chief concern for the legal-empiricists in their case law analysis, which might constitute an expedient goal in other field of laws. More important is the examination into the legal dynamics, viewed in the whole context of both judicial and legislative processes, together with the evaluation of big business behaviors, relevant to the legal processes.

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(1) 前回の調査統計の結果、婚姻の届出は、第一子の懐胎、出生との関係が少なくないことがわかったので、今回はそれに基づいた分析法と、得点による評価法によって職業との関係を考察した結果、その得点順位は、専門的が高く、事務はこれに次ぎ、技能工・販売の順に低くなり、各職業間に、婚姻の届出に対する態度や慣行などに差があることがわかった。
(2) (1) の分析法ならびに評価法による職業間の差は、統計値のみならず推計学的に検定した結果も、有為の差があることが確められた。
(3) 二つの調査区の地域差は統計的にも、推計学的に検定した結果も有為差は認められなかった。
(4) 得点順位によって配列した職業の序列は、成層と移動調査による職業の格付け順位とほぼ等しい傾向にあることがわかった。これにより職業が社会に及ぼすさまざまな要因の存在が考えられる。
(5) 以上の分析法および評価法によるデータから、婚姻・出生に関してその職業集団のもつ生活環境によって、その見解や慣習、倫理観などに類似の傾向があることが推測されよう。

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The Japanese traditional system of the “family”, as a legal institution, underwent a drastic change and renovation, after the World War II. It is also recognized the notorious paternalism and its reminiscences, in terms both of ideology and institution, are disappearing in a remarkable rapidity. For the examination of the cause and means of such drastic and rapid changes of our social structure, the Senior High School text books for social studies could provide us with one of the best criteria, since the explanations or statements therein relating to the problem under consideration, would show, at least, how the cause and means have been interpreted and taught to mould the community understanding of the problem. The text book treatment of the problem could bring forth another serious problem if there is any distortion in its treatment.
It is to be noted, in the first place, that the one subject “politics, economics and civics” has been divided to make the two subjects, “ethics and civics” and “politics and economics”, by the enforcement of the new authoritative prescriptions for the Senior High School curriculum for the academic year 1963. The new text books for those two subjects contain the statements, related to the problem, of a remarkable differences, as compared with those before the division of the subject, reflecting the structural changes of our community which have taken place in these years in the agricultural districts in particular. The revision of the course of study has made some contributions to the alterations of the statements in the texts as well.
Having those alterations in mind, it would not be unfair to view and point out the tendencies in the text book explanations as to the family institution as follow:
1) we will find very little and insufficient explanations as to how and why the family institution has been preserved even after the Meiji era, and its sociological significance;
2) there are rather strong critical comments on the reminiscences of the institution, found in the social structure of our contemporary community, particularly in the agricultural communities or in smaller enterprises, but little references to its causes and the roles the reminiscences have played;
3) we may note emphasis upon the significance of the new “family” life as well as the new “family” itself which derive from the idea of the modern family under the constitutional principles of “individual dignity and the essential equality of the sexes”, and strong directives as to the pragmatic means and standards to accomplish those high ideals and purposes;
4) there is little or no propensity to deal with the problems of modern family as those of contemporary social structure, with realistic propositions toward the development of the social security measures or for the better preservation of our existence.
To sum up, the text book statements show a critical, negative evaluations against the ideals of the family institution, prevailed before the end of the World War II, and its reminiscences, but lack the clear presentation of the policy alternatives toward the development and satisfaction of our modern family life, in future.

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