This symposium is to renew the last year's one from much more concrete viewpoint, such as from the viewpoint of social communality in current Japanese society. When the critical approaches were being introduced into our traditional conceptualization of Japanese society, a quite different perspective has been presented as a vision for the transformation of Japanese legal culture as well. There are frequent references to the community values or standards in Japanese society, however, values are often attribute to the regulated population such as a various kind of minorities in our society. This formulation seems to put some particular characteristics to the claims of those minorities, and in our case, communality or solidarity often refers merely to the regulated population united by their shared values which are not shared by the public at large in Japanese society. On the other hand, so called 'kaishashugi' or the ideology of total fidelity to the company is often assumed as a dominant embodiment of the communitarian characteristics of Japanese society. We could understand the difference between positive and negative elements of the communalities in Japanese society, but it would be only a reflection of the dilemma of contemporary Japanese society. We should discuss the structure of these intermediary communalities as well as the formal or informal elements of sanctions applied for the preservation of these structures with their changing aspects.
The idea of the communality is, like as that of community, typically seen as irrelevant to modern legal systems. Under law's rule, citizens engage in transactions as fully autonomous agents. There is a coherent image of society here it is that of isolated persons, therefore, classical image of civil society is less sympathetic to that of society in the form of cohesive community. One possible explanation is that modern liberal legal tradition is only working out the full implication of its abstract individualism. On this view, liberals often ignore the political significance of cultural membership and ethnic identity because their individualism ignores its significance entirely. In the other hand, liberal idea of modern law depends on a notion of the self which is uncumbered by social attachments. The individualism of the liberal legal tradition will quite willingly insist that members of the minorities shall enjoy equal rights with other inhabitants. Such a right of voluntary association or cooperation is not enough. They sometimes want the power to act as corporate entities. But this often means political recognition and status, challenging the idea of national unity and suggesting a state within a state.
The communality or solidarity is a creative process, a process of integrating. The creative power of the individual appears when the individual unite in a working whole, in this true sociat process there takes place neither absorption nor compromise. When we see community as process, however, we should recognize freedom and law must appear together. Our trial for sociology of law of communality or solidarity could not be completed as a three year's project, but let us begin.

抄録全体を表示

In the postwar Japanese law and society, there has been a slow but steady development towards an expansion of the ideals and practices which can be called "the communal". For example, the postwar expansion of the Japanese welfare state has recently taken the course of putting more emphasis on state's reliance on private and voluntaristic "mutual help" among people. Also, the Japanese administration, both at national and local levels, has long been characterized by its reliance on "administrative guidance" which can be understood as a set of techniques for "consensus oriented administration." Also, the Japanese judicial system has long operated on the preference of "mutual concessions (wakai)" in the settlement of legal disputes. Also, in the residential communities of urbanized Japanese society, people have been organized in the "neighbourhood organizations (Chonai-kai)", a principal social function of which is to promote social sense of community among local residents. In all of these, and many other aspects, social technologies, and interactional patterns in Japanese law and society keep on testifying the ideological, structural, and interactional importance of "the communal".
Despite of its well accepted importance as a mundane feature of socio-legal system of Japan, the ideal of "the communal" has been regarded as a "dubious" ideal by social scientists and critics. A brief look at the debates on "the communal" among several areas of sociological studies in law shows that that may be a reflection of the ways ordinary people treat the sense of "the communal", of such ways that those ideals are made dubious and elusive so that people use it to institute claims to others.
Examples of the various ways in which the idela of "the communal" is used by ordinary people to make claims in disputes are available in Nobutoshi Nakagawa's study of "The Prefectural Musium's Exhibition of The Emperor's Portrait Debate" (N. Nakagawa, "Three Party Process in Tennno' Art Issue: A Constructionist Analysis of a Censorship Problem' at a Public Modern Art Museum" TOYAMA DAIGAKU JINBUNGAKUBU KIYO. Vol. 23 (1995), p.33), in which the various ways the regional people employed the idea of "Prefecture" to claim on the corect action of the public authority are detailed and analyzed. According to the study, the local authorities claimed on the individualistic ideal of "privacy" (of the Emperor!) because they had had to accept the people's claim that the prefecture is the representative of "the communal" so that the public museum should exhibit the comical portrait of the Emperor when it vealized that the residents wanted them to be exhibited.
The paper proposes that the scope and depth of sociological studies of law should be espanded to appreciate and better analyze the fact that ideal of "the communal" as being claimed to be the humann value and the essential nature of human existence is estensively used in the process of contemporary legal disputes in Japan. A focused study of such facts will make clear the ways in which the ideas of community, the communal life, the commonality of people in various circles, i.e. "the communal" in the wider sense, operate on the ideas and practices of legal claims making, legal regulation, legal settlement of disputes and so on, i.e. the law in the narrower sense.

抄録全体を表示

There are people who criticize the modern system of nation-states since it is out of to uch with reality in the time of globalization. The majority of those people are Japan-born Korean citizens who are descendants of migrants from the former Japanese colony but have no Japanese nationality.
By asking to have voting rights for foreigners in municipal elections they are calling the notion of nation-states into question.
(1) definition of nationals:
Who should be regarded and included as nationals? Who should have rights and obligations in the nation-state?
(2) the principle that sovereignty resides in the nationals:
When nationals prevent foreign residents from having egual rights to theirs, nationality doesn't mean human rights but only privileges. Who can give it sufficient reason in the time of globalization?
In this paper I look back on the history of argument about social contract which foreign residents have made with Japan since the Japanese colonial era. I also compare it with Korean's another movement to refuse obtaining voting rights not to be ruled by Japanese nationalism.
Now many Japanese nationals think that foreign residents should be allowed to gain equal rights since they pay as much taxes as nationals. Japanese nationals also regard foreign residents as their companions after long living together. They realized that they had collaborative negotiation for long time already.
Through this argument I analyze the historical meaning of rights in Japan.

抄録全体を表示

1. The Japanese firm has had long time a kind of community which is constituted of its employees and managers. Such a firm-community is now assumed to be weakening because of economic difficulty and change in workers' consciousness. Under those conditions, forms and nature of workers' communality would experience transformation.
2. Contrary to a popular view, Japanese workers are not so collectivist nor so strongly committed to their company. They are rather individualist and family oriented, according to general surveys of opinion. However, they are bound by specific norms and customs in the enterprise. Communality of workers is based upon enforced community-like relations there.
3. In the firm community, there have been two types of organization of labour. One is an autonomous labour organization based on the communality of workers in the workplace. It has relatively strong independence from the management. The other is one based on workers' economic gain which leads to company-oriented consciousness for their rewards and employment security depend largely on the company's economic performance.
4. Now, we face a changing phase. Two types of organization are both declining and the third new type is emerging. New-type unions are organized outside firms and based on the rule of voluntary affiliation. It represents a freer and more individualistic form of workers' communality.

抄録全体を表示

In our "urbanized" society we have many good reasons to doubt the existence of substantive local community. In this paper I tried to show that it does exist and that it is to be observed in the empirical-sociological way as four forms of cooperative activities or consciousness of inhabitants.
The first of them is the "friendly atmosphere" which should be empirically observed in many, in most cases trivial, behaviors of neighbors toward each other, for example to greet each other on the street, to keep clean the public spaces and so on. It is a trivial, but an important basis for the further development of local community.
Secondly inhabitants often organize various types of non-profit "activities", for example festivals, volunteer-based social works.
Thirdly we see sometimes local communities confronted with the difficult problem of "coordinating the private rights" and of "building a consensus" among the inhabitants. In these cases they must for example behave together for or against a project of local government or private enterprise, or change or keep the rule of city planning for their own area although there are among them some people who will be disadvantaged by the decision or "consensus" of the inhabitants as a whole.
Lastly there are some advanced local communities which make an integrated planning about their own local area. It will rationalize and therefore make easier the attempt to "coordinate the private rights".

抄録全体を表示

Le présent article a pour but de faire le commentaire du congrès. L'ensemble, précédé d'une introduction et suivi d'une conclusion, est compose de trois parties: 1. Implication réciproque des revendications de <droit> et de la <dimension collective et communautaire>, 2. Prémices d'une nouvelle <dimension collective et communautaire>, 3. A propos d'une condition necessaire au developpement de la nouvelle <dimension collective et communautaire>.

抄録全体を表示

The Japanese judicial reform movements in the 90s have been advocated and discussed not only by lawyers but by the variety of social actors including politicians, journalists, entrepreneurs and citizen groups. The reform targets are also almost all-embracing. Recruitment of legal professions, judicial budget, quality of court services, civil and criminal procedures, the styles of court decision and legal codes, to mention a few. And the actors' political stances are not so clear-cut as they used to be. Influential business leaders strongly point out the defects in the present judicial system while Japan Federation of Bar Association has been divided on how to evaluate and respond to the reform movements.
And there is strong concern that introduction of deregulation policy into judiciary may cause serious damage on its functions. On the other hand, the basic authoritarian character of the system seems little affected despite criticisms.
The complicated and multifaceted nature of the movements itself proves the need for academic examinations. This mini-symposium has been held under such perspectives with a prominent practicing lawyer and a well-known judge, who both are playing leading roles in the reform movements, as guest panelists together with two socio-legal academics.

抄録全体を表示

Elite judges do have recognition of the ongoing social change and they have issued judicial policies reacting to it. One notable strategy is to strengthen functions of trial court system by increasing the number of court secretaries, rather than that of judges. The idea behind this policy is to activate the roles of the secretaries and organize their work and that of the judges as a 'team-work' to resolve cases more effectively and cooperatively. This policy has been repeatedly announced in the judiciary though not so well-known outside. And I regard this is a feasible way of responding to the increasing needs of the courts with the present capacity of the judicial system. It has produced a considerable result after all.
One serious problem of the policy, however, is the vagueness of legal entitlement of the judge as a leader in the 'team' to manage and control the secretary. To make sure success of the policy, it is necessary to clarify and secure this legal position. Entitling judges to evaluate job performance of the assistant officers, if introduced with considerations, may be one important route of this clarification along with others, resulting in multi-dimensional evaluation system.
This proposition reflects the recent trend of introducing merit system into public workers, leaving seniority rules behind. And giving each judge an entitlement of this kind may lead to their further administrative empowerment.

抄録全体を表示

A working group of Japan Federation of Bar Associations recently published a paper on total plans of the near-future judicial system in Japan. As conflicting opinions among the members could not be reconciled, this paper consists of two different volumes, one reflecting majority view (volume B) and the other, minority view (volume A). As chairperson of the members making up volume B, I believe this part of ours represents the most positive and constructive vision of the judicial reforms in the present JFBA.
There are criticisms on our stance. Some identify it with market centered libertarianism and deregulation movements advocated and carried out by those in power and by the business leaders. They argue that this stance is very likely to lead to the destruction of professional autonomy. But their discussions are no more than refutable and ideological speculations and lack concrete data and proof. More sociologists of law in Japan should leave ivory towers and observe the actual front line of the ongoing judicial reforms.
Professional autonomy and authority depend ultimately on how people evaluate their importance. When we rest on our present laurels and do not try to reform the system including ourselves, it is then that our role in democratic and liberal society will be forgotten and not in the least cared for.

抄録全体を表示

It might be perbaps well known how Japanese judiciary is small in term of the number of legal profession as well as that of financial foundatation, however, Japan Bar Association is now trying to organize the forum for the reform of the Judiciary as a whole. It has been remarkable achievement of the Bar Association to identify itself as an autonomous body of lawyers to pursue common aims of the protection of human rights as well as the realization of social justice as their duties or professional ethics.
However, the Bar had agreed to increase the number of lawyers and now seems to decide to accept further increase of the number by accepting the key ideas of current administrative reform promoted mainly by the government run by the Liberal Democratic Party in Japan.
The legal profession cannot be viewed solely as an economic activity. I therefore pointed out the danger in viewing the legal profession primarily as an economic activity. The changes the government proposes will be said to increase competition and thereby improves access, choice and quality, but in my view, the government is entirely wrong since the effects of the reform would inevitably tend to be towards the decline of the power of the Bar Association as well as that of the independence of the legal profession. A judiciary drawn from a legal profession and independence of the judges are the central projects for the reform of post-war Japanese judiciary, but independence of the Bar would be subservient if the Bar would lost the independence by receiving so called political judicial reform projects led by the administrative parts of the government.

抄録全体を表示

Since early in the 1990s, reform of the administration of justice system has been discussed among lawyers and businesses in Japan. In 1990 the Japan Federation of Bar Associations declared that the reform must be considered as one of their long-term objectives in order to widen the juridical field, which had been greatly limited in Japan. The government has put the issue on its agenda. The author overviews trends in the number of civil litigation since the end of the World War II and identifies the massive increase since the middle of the 1970s, which is one of the background factors in the recent reform movements. The author also presents a theoretical perspective in order to put the reform into the context of structural changes in the Japanese society. He shows that the internationalization and deregulation in the Japanese economy is a driving force in the calls for reform of the justice system. He also points out that people have come to recognize that making the legal system quicker, more responsive, and less bureaucratic is indispensable for the sound development of civil society.

抄録全体を表示

This mini-symposium is organized to incorporate a "different voice" with in the main symposium by examining the meaning of "community" from a feminist perspective.
Frances Olsen, a leading feminist legal scholar, drew on materials from American law and society to present a general theoretical framework for examining the relationship between women and community. Hiroko Hara, Professor of Anthropology at the Institute for Gender Studies of Ochanomizu University, described a new organizing principle developed by Japanese women's NGOs-"ad hoc community"-which is based on feminist critiques of traditional hierarchical patterns of organization and which comes into conflict with existing structures of law and bureaucracy. Responding to these two presentations, Seigo Hirowatari brought up a discussion from a point of view of sociology of law, introducing his group's socio-legal research on Japanese law and custom regarding family assets. Finally, Nobuyoshi Toshitani in his concluding comment emphasized the importance of introducing feminist perspectives into the study of the sociology of law in Japan.

抄録全体を表示

"Community" should not be treated as an ahistorical, gender-free abstraction. Examining the concrete historical experiences of community by particular actors, especially women, clarifies the risks and possibilities of community-forming.
A gender-sensitive approach acknowledges that community is often forced upon women and that power within communities is exercised disproportionately by men. Women are barred from powerful men's communities, and women's communities are often trivialized.
Women are pressured to enter and remain in families, a form of unequal community. Women are socialized to place men and children ahead of themselves and to engage in self denial. Social, economic, and legal barriers make exit from family costly, risky, and sometimes impossible for women.
The unequal distribution of power within families and other communities is encouraged by law. Diverse policies, ranging from the tax and family laws of the United States to the Japanese NPO bill, encourage hierarchical communities and empower men over women.
Alternatives policies could render community less problematic, by easing entry and exit, facilitating equality within communities, and encouraging the shifting of power. Communities could be encouraged to emphasize the welfare of their least powerful or well-off members.
Such policies can be risky, though. Judging groups by their least well-off members rather than by their best-off could result in the expulsion of the least well-off from the community. Facilitating a shift in power within community could result in greater as well as less hierarchy. Nevertheless, such an approach at least asks some of the right questions.

抄録全体を表示

Before 1970, most women's groups in Japan were organized like men's groups in their rigid boundaries of membership, vertical structure of power and decision-making, concern for titles, and unequal financial contributions based on positions within the organization. During the 1970s, feminists and some other non-mainstream groups began to develop new styles of leadership (rotating various roles among the members), decision-making (reaching a consensus), and financial management (expecting equal contribution).
In the 1990s these new-style NGOs faced challenges to their theory of group formation. Before and after the Beijing Conference, new-style NGOs began making petitions and policy proposals to submit to the Cabinet, ministries and local governments. These NGOs therefore had to have a named representative to pay for fax, printing, postage, and often office space, as they could no longer operate at the members' kitchens.
Additionally, under the Japanese law, organizations are granted incorporation status only if they satisfy a number of requirements-requirements sometimes met by old-style women's groups organized in the pre-1970s manner, but not by the new-style NGOs. New-style groups were not eligible for tax deduction, while some old-style women's groups were. The Bill Providing Nonprofit Organizations with Incorporation Status (NPO bill), pending in the Japanese Diet, is unlikely to benefit new-style women's NGOs.
As a result of these changes, however, women have increased their legal literacy. Since 1995, old-style women's groups have been occasionally cooperating with new-style NGOs. Some local governments and male-centered groups are beginning to show "tolerance" and "understanding" toward the new styles of group formation and occasionally modifying their own established styles. This trend will contribute to more flexible attitudes by the Japanese in certain aspects of their international interaction.

抄録全体を表示

Beim Symposium über das Thema "die feministische Analyse über die Frauen in der rechtlichen und sozialen Gemeischaft" charakterisiert Prof. Olsen die Ehe- und Familiengemeinschaft für Frauen als keine Assoziation sondern als eine Art von Zwangsgemeinschaft. Nach ihrer Strategie der Emanzipation sollte solche Zwangsgemeinschaft etwa zur freien Assoziation umgewandelt werden. Prof. Hara schildert die neuere Tendenz in der japanischen Frauenbewegung seit 70er Jahren. Dort findet man, daß sich die Frauengruppen sehr weniger kollektvisitisch sondern viel mehr freiheitlich und individualistisch organisieren als die traditionelle Frauenorganisationen.
Zu diesen Hauptreferaten stellte ich einige Bemerkugen hinsichtlich der Wirklichkeit der Ehen in der japanischen Gesellschaft dar. Erstens trotz der Gütertrennung als dem geseztlichen Güterstand meint die Mehrheit der Ehepaare das Einkommen des Ehepaars und das Eigentumsvermögen des Ehemannes als "gemeinschaftlich". In diesem Bewußtsein von "gemeinschaftlich" spiegelt sich der Nachteil der Ehefrau auf Grund der Geschlechtsrollenverteilung in der Gesellschaft wider. Zweitens in diesem Zusammenhang sollte man in Betracht ziehen, daß sich die sozialen Bedingungen um die Geschlechtsrollenverteilung und der soziale Gadanke um die Ehe immer und neuerdings relativ radikal wandeln. Drittens ist die sehr oft vorschlagende Einführung der Zugewinngemeischaft im deutsch-rechtlichen Sinne, die den wirtschaflichen Nachteil der Frau ausgleichen kann, nicht empfehlenswert. Mit dieser Einführung könnte sich die Abhängigkeit der Frauen von der Ehegemeinschaft verstärken und diese Reform widerspricht daher der feministischen Strategie über die Ehe von der Gemeinschaft zur Assoziation. Die nachteilige Stellung der Frauen im Ehegüterrecht sollte nicht mit der Steigerung der Gemeinschaftlichkeit zur gesetzlichen Gemeinschaft ausgeglichen werden sondern durch die Abschaffung der Geschlechtsrollenverteilung in der ganzen Gesellschaft beseitigt werden.
(Vgl. anderes Referat des Verfassers "Rechts-und sozialen Normen um das Ehegüterrecht" in diesem Heft in Bezug auf these Bemerkungen)

抄録全体を表示

Empirical research on recent derivative lawsuits in Japan has shown that the power of lawyers' networks is one of the critical factors which promotes so-called "cause lawyering." Though such lawsuits are often the result of activities led by lawyers, it will probably develop into a new category of legal services.

抄録全体を表示

This paper emphasises the importance of studying "internal talk" of lawyers. There are two types of "talk": internal talk and external talk. The former is the talk from internal viewpoints, or that of speakers themselves, and the latter is the talk from internal viewpoints, or that of observers. There can be these two arguments on lawyers. Arguments on lawyers' image have been based on their external points of view. These arguments based on "external talk" can hardly grasp social aspects of lawyers' behaviours. In order to understand how lawyers represent themselves in this society, we need to focus on their "internal talk".
The author showed that lawyers construct their self-images through their "internal talk" in the process of dealing with their daily works. When constructing their self-images through their "internal talk", they use various social representations shared with most members of their reference group. Through their "internal talk", can we find what they think their role is, and where they are palced in our society.

抄録全体を表示

This paper aims to reconsider the potential of Niklas Luhmann's theory of legitimation through (legal) procedure. According to the ordinary understanding of his theory (probably also his own understanding), legal procedure is understood as a kind of coercive system, which isolates parties, absorbs their protests and makes them accept conventional legal decision unwillingly.
But this understanding of Luhmann's theory of legal procedure appears to be impertinent, in spite of Luhmann's own understanding. Man can understand the functions of legal procedure opener, in the scope of possible understanding of his theory. With some devices, which strengthen activity of parties in the legal procedure, parties can interpret and define their own troubles advantageous to themselves, referring to various kinds of factors, which are not limited to legal factors, that appear in the court (for example, interpretations or expectations of the same kinds of troubles by other people, ways to cope with the same kinds of problems etc.). Following the latter understanding, parties can learn the results of the legal procedure positively. It is expected that by the effects of 1998 amendment of code of civil procedure, appropriate devices in the legal procedure become easier.

抄録全体を表示

I Introduction
II The Possibility of Emergence of Corporate Entity in Germany and England
III The Peculiarity of English Law and Political Conditions
IV Concluding Remarks

抄録全体を表示

Comparative research has shown that the implementation of environmental regulation in the U.S. is more likely to be rule-oriented, legalistic and adversarial than in Japan. Less research has been done, however, detailing the consequences of the two different "regulatory styles" at the level of the regulated entities. This article addresses these issues by examining a multinational corporation that conducts similar manufacturing operations in the U.S. and Japan, in order to shed light on divergent institutional patterns of waste management regulation in terms of regulatory costs, environmental performance, and attitudes towards regulation and regulators.

抄録全体を表示

Based on his comparative study, Aoki argues that environmental regulation in the United States imposes heavier cost on regulated firms than its Japanese counterpart in order to produce almost the same regulatory effects. If we add some more items of the costs and the benefits of regulation to his study, however, we may be able to reach a somewhat different conclusion.
For instance, expenses to maintain long-term harmonious relationships with regulatory officials may be a heavy cost of the Japanese style of regulation. And the realization of such abstract legal values as "the rule of law", "legality", and "the transparency of public administration" may be counted as a benefit of the American style of regulation.
Therefore, we should not treat Aoki's study as an unreserved praise of the reasonableness of the Japanese style of regulation. Rather, its significance is that it invites socio-legal scholars to sophisticated cost-benefit analyses of regulation which is based not on some abstract economic model but on detailed case studies on specific areas of regulation.

抄録全体を表示

This paper analyzes the legislative process of the law to support Nonprofit Organizations (NPOs) Activities submitted by the major political parties and points out the effectiveness of the Diet members' bills. The characteristics of the legislative process of the law to support NPOs Activities are as follows; 1) the ruling coalition parties stop making the bureaucracyled government bill and take the initiative in making the members' bill, adjusting the differences among three parties, 2) the precedence bills introduced by the New Frontier Party (the first opposition party) trigger off making the bill by the ruling coalition parties, 3) the political parties coordinate the policy contents with the citizen's groups and amend the bill, reflecting the interests of NPOs. It concludes that the Diet members' bill has a responsiveness and effectiveness because it adjusts the various interests of NPOs against bureaucracy's control over the NPOs activities and enhances the transparency of the decision-making process, and makes the intention of the legislators clear.

抄録全体を表示

Professor Tani's study adopts a positivist approach widely recognized in the political science during 1980s through the work of Michael Michizuki and Tomoaki Iwai. Their middle range perspectives called 'viscosity model' and 'hurdle race model', however, have some fragile aspects, constructed and depending on changeable variables such as LDP's permanent stay in power, 'middle-sized electoral district system' among others. Professor Tani tries to find out what has changed and what has not in the Japan's parliamentary legislation process after many of these conditions were actually altered when LDP slipped off the power in 1993. He picked up the legislation process of 'NPO Act', which he regards typically reflected the new political environment. He thus reviews the validity of the previous models and tries to formulate new perspective on the new situation. Whether his new model was successfully and persuasively discussed in his presentation, however, remains arguable. Even more fundamental criticism may be that in what sense his discussion can be considered as that of socio-legal study, not solely that of political science. It is perhaps necessary to include theories of law and wider perspectives on social processes and social change in addition to those on political systems and actors.

抄録全体を表示

The purposes of this report are to insist on the effectiveness of the approachs called "social constructionism" and ethnomethodology to inquire into social problems and institusional activity, while introducing the legal aid project for victims of Great Hanshin-Awaji Earthquake (Hanshin-Awaji-Daishinsai Hisaisha Horitsu Enjo Jigyo) and its results as one example. Those approaches call our attention to details of the project which constructed and put in operations, and ask how to be visible them in each situations. Then they makes us possible to descrive the project with reality in its own rights.

抄録全体を表示

Mr. Yoneda's report analyzes, from a sociological point of view, a process of establishing a legal aid project for victims of the Great Hanshin-Awaji Earthquake. His report is valuable in that this is the first of its kind. Hopefully, there will be more studies such as the examination of the roles of legal process in disaster relief and analysis of the measures taken by the government to help the victims of the earthquake. The Public Assistance Act to victims of natural disasters, which was passed in May, 1998 as a result of citizen initiative, has potential benefits as well as limitations. Considering the rising number of suicides and deaths of neglected victims of the earthquake, an examination of the effectiveness of the law with regard to its placement within the Japanese disaster law system is necessary.

抄録全体を表示

The purpose of this report is to make clear about a fundamental point at character and essence of "women/wives and property". I examine the wives and husbands property in fact, and investegate structure and issue about elucidate relation of their property and power. From results provided by investigation, I will show the present situation of property of wives and husbands.
Two investigations were carried out. Wives who live in Tokyo and 45-65 years old were examined in January, 1997, and 45-65 years old husbands investigation were carried out in October, 1997.
As for the conclusion, wives have property a little. Property of husband name are 71 percent, and property of wife name are 29 percent. 24 percent of all the wives own real estate, and 69 percent of all the husbands own real estate, a difference are big. But 48 percent of all the wives don't mind the name of property.
There is a structure that distance is hard to recognize it to be gender bias in spite of there being far-off reality of women's subjective ownership and name property definitely. And the structure is maintained by lenient "family collectivity", the problem around property of wives and husbands is one thing in a tendency to take in love and a work free of charge only instead of problem of economic power.

抄録全体を表示

Tokyo Women's Foundation's survey in 1997 individually asking Japanese couples in Tokyo on their household property reveal that the ratio of wife's nominal property to that of husband is 2.9 to 7.1, whereas wives, whether they have jobs or not, see themselves as making more contributions than their husband to the amassment of household property, reflecting a gender gap between the amount of nominal property and the amount of contribution and domestic commitments. The results also show that husbands expect to bequeath 77% of their property to their wife, which is 8% more than wives themselves think are entitled to inherit from them. Note that under the Japanese constitution wives are legally guaranteed to inherit a half of their husband's property. In this presentation, I argue that husbands hope to liquidate wives' unpaid work, such as household chores, by transferring their property to their wife after their death, thereby filling a gender gap. I then point out that wives are at a disadvantage, in part because there is a severe time lag between the period of wives' contribution and the time of property transfer and in part because only a handful of husbands draw up a will and in most cases husbands do not specify their special consideration for their wife in their will. I also touch on couples' residential property which I regard as not amenable to the idea of individual transfer, since it is likely to be viewed as family property to be succeeded to the next generation.

抄録全体を表示

Im Referat wurden die Ergebnisse der gemeinschaftlichen Tatsachenforschung, die untersuchte, wie das Bewußtsein und das Verhalten der Ehefrauen und Ehemänner hinsichtlich der ehegüterrechtlichen Beziehungen waren, vorgestellt. Die Befragten dieser Untersuchung vom Jahre 1997 waren die Einwohner in der Präfektur Tokio, die verhairatet und zwischen 45 und 65 alt.
Nach den Ergebnissen werden die folgenden Punkte festgestellt. Erstens wird der Ehevertrag nur wenig geschlossen von den japanischen Ehepaaren. Daher gilt die Gütertrennung als der geseztliche Ehegüterstand ausschließlich. Zweitens unter der Gütertrennung und der herrschenden Geschlechtsrollenverteilung in der ganzen Gesellschaft kann der Ehemann viel günstiger als die Ehefrau sein eigenes Vermögen ausbilden. Das Verhältniss des Eigentumsvermögens zwischen dem Ehemann und der Ehefrau ist etwa 7 zu 3. Drittens trotz dem Prinzip von der rechtlichen Zuordnung des einzelnen Vermögens zum Individuum unter der Gütertrennung meinen sowohl die Ehefrau als der Ehamann mehrheitlich, daß das Vermögen des Ehemannes "gemeinschaftlich" zu den Ehepaar gehört. Das Einkommen in der Ehe, unabhängig davon wer es verdient, wird von dem Ehepaar als "gemeinschaflich" gemeint. Viertens entsprechend dem oben dargestellten Bewußtsein von "gemeinschaflich" gelten einige Regelungen hinsichtlich der gemeinschaflichen Benutzung des Vermögens des Ehepaars in der Ehe.
Das Referat fasst diese Ergebinisse wie folgt zusammen: In den untergesuchten Ehen gilt tatsächlich die Gütergemeinschaft des Einkommens vom Ehepaar und des Vermögens des Ehemannes mit Vorbehaltsvermögen der Ehefrau. Die Entstehung der tatsächlichen Gütergemeischaft wurzelt in dem Bewußtsein der Ehefrau einerseits, die den eigenen wirtschatlichen Nachteil in der Ehe kompensieren lassen will und anderseits in dem Bewußtsein des Ehemannes, der durch die Konzession gegenüber der Forderung der Ehefrau den Frieden der Ehe sichern will.
Schließlich stellt das Referat die rechtspolitische Stellungnahme dar. Danach sollte man trotz dem wirtschaftlichen Nachteil der Ehefrau unter der Gütertrennug keine solche Gütertrennung durch die Gütergemeinschaft geseztlich ersetzen. Die gesetzliche Einfürung der Gütergemeinschaft könnte positiv auf die Hausfrauenehe wirken. Wenn die Gleichberechtigung in allen Lebensbereichen gezielt werden sollte, sollte man sich wesentlich darum bemühen, keine Gütertrennung abzuschaffen sondern vielmehr die Geschlechtsrollenverteilung in der Gesellschaft zu überwinden. Wahrscheinlich entspricht die Gütertrennung der gleichberechtigten Doppelverdienerehe die für die geschlechtliche Gleichberechtigung sowohl in der Familie und als im Beruf günstiger wäre.

抄録全体を表示

Traditional legal theories have been against efficient breach of contract through the use of right-based or interest-based discourses. The economic analysis of contract opposes these traditional theories from the viewpoint of legal realism which consists of two characteristies. First, legal positivism which states that contract law should be interpreted without morality, and therefore, freedom of breach of contract should be acknowledged on the basis of efficiency. Second, scientific cognition which states that traditional discourses not based on objective fact are "transcendental nonsense". The meanings of contract law should be determined according to its empirical function to promote efficiency.
The theory of efficient breach of contract is, however, contradictory to its own realistic requirements. First, it cannot calculate the amount of the damage incurred precisely, and in particular it ignores non-monetary idiosyncratic values. This is because economic analysts mistake the reality derived by their own discourses for the true reality. The efficient breach theory is a narrative as well as a legal discourse. Second, an economic narrative excludes "solidarity" which regulates and enables contractual relation. But if solidarity is understood scientifically, for example as transaction cost, it loses its normative factor, and therefore cannot solve the Hobbesian problem.
True realism, therefore, requires us not to enact contractual orders from the transcendental viewpoint as an author, but to interpret social solidarity constituting participants' perspectives as a reader.

抄録全体を表示

The purpose of this paper is to examine the concept of intersectionality in the field of employment discrimination, as well as in the system of U.S. civil rights law (namely in the Title VII class action cases), in which its potential to produce new subjectivities that defy existing legal categories has been sought.

抄録全体を表示

Though liberal legalism solves the ploblem of modern order, it produces two dilemmas. One is the dilemma between justness and positivity, the other is the dilemma between rationalism and democracy. These dilemmas are behind various discourses about constitutional rights.

抄録全体を表示

The purpose of this paper is to consider how muslim divorce law has been applied in Malaysia since the Islamic Family Law Act [Federal Territory] 1984 implemented, comparing with the traditional Shaf'i school's law most what Malay follow and some other Islamic countries' family law. In Islamic law, there are different rights of divorce between wife and husband. Though many critics insist that poligamy or unilateral divorce by husband, the divorce by pronouncement of talaq, have oppressed wife for a long time, many Islamic countries have reformed Islamic family law in this century. The Islamic Family Law Act [Federal Territory] 1984 shares certain similarities. This act limits unilateral divorce by husband to some extent and eases wife to ask apply to the Islamic court to dissolute marriage. This act also reform the traditional Shaf'i school's law, which prohibits the pronouncement of talaq without permission by the Islamic court and increase the reason for giving the right of divorce to the wife. On the other hand, this act is different from some Islamic countries. This act doesn't limit the divorce by three talaq which is valid as soon as husband pronounce talaq, and therefore, this form of divorce has been regarded as unfavorable in Islamic law. This act intends every divorce to be within the court, however according to some cases, it is apparent that the divorce without permission by judges still has continued.

抄録全体を表示

The 73rd Amendment of the Indian Constitution enacted in 1993 guaranteed village panchayats as a local self-government. Some of the auhtorities in this field took this as a revival of traditional village self-government. By examining the legal aspects of present village panchayats and of their functions, the author of this article tries to make clear the difference that lies between the current village panchayats after the Amendment and the traditional ones.
For instance, Judicial power, that was one of the most important functions of traditional village panchayats, was separated from modern village panchayats. On the contrary, development works are the ones that were strengthened as their functions. Further more the territorial determination of current panchayats show one of their noticeable characteristics as an administrative institution. We can hardly see, through the examination of their territorial constitutions, that present village panchayat as self-governmental organization based on community that was binded to community land. This makes particulary difficult for the villagers to hold village meetings in traditional sense of the term.
The author this time set the location of the survey in a part of Andhra Pradesh where village panchayats play a significant role in village administration.
The difference that lies between the legal status and real situation of present village panchayats studied, the conclusion is that modern village panchayats and traditional ones are entirely different bodies. To make current village panchayats more substantial for the good of the villagers, improvements like strenghening of residents meeting should be brought.

抄録全体を表示

Since the 1970's people in certain area of the south-west region of West Bengal, India have been involved in participatory forest management. People who live in rural and mountainous areas are economically backward. They earn their livelihood by agriculture and by gathering forest products for food, fodder and fuels. By protecting allotted forest land, people are given so-called usufruct rights to collect non-timber forest products (NTFP) without payment. It was also decided that people can get 25 per cent of the net profit of selling timbers.
In 1989 and 1990, participatory forest management was formally provided in the State Resolution of West Bengal Government. It was decided that Forest Protection Committee (FPC) should be constituted by adults of the decided area under supervision of Forest Department (FD) and local administrative institution called Panchayat Raj. FPC world organize executive committee custituted by the elected members. Executive committee has to keep records of activities and undertake rule-making on forest protection, NTFP collection and distribution of benefits among members. FPC members have to participate in patrolling by rotation. If rules are violated by particular member or plan made by FD was not appropriately conveyed, the member would be deprived of usufruct rights and FPC would be resolved without any compensation.
At present, there seems to be good results by FPC activities. Members are eager to protect forests for their uplifting. However, there are several difficulties to be overcome. First, there is no provision on the standard of selecting beneficiaries constituting FPC. This causes serious conflicts between FPC and non-FPC people. Second, executive committee would play an important role in decision-making of FPC members as well as in conflict-resolution among people people. It seems to be desirable to give authorized power to FPC executive committee on these issues by State Resolution.

抄録全体を表示