法社会学
Online ISSN : 2424-1423
Print ISSN : 0437-6161
ISSN-L : 0437-6161
2001 巻, 55 号
選択された号の論文の17件中1~17を表示しています
  • 楜澤 能生
    2001 年 2001 巻 55 号 p. 1-6
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
  • 平等原理の転換が意味すること
    佐藤 俊樹
    2001 年 2001 巻 55 号 p. 7-21,247
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
    The various reformations of 90's Japan are often summarized as "From equality of result to equality of opportunity". However, the cause and implication of this change are not sufficiently made clear. On statistical data, the improvement of equality, both of result and of opportunity, has been stagnant since 80's. So the reformation in 90's was not caused by excess of the equality of result, but this stagnation itself caused the change of the principle of equality. In this paper, with re-examination of the concept of "opportunity", we show how this change is related to the new phase of 90's Japan, such as stagnation of equalization, sustainable society, and privatization.
  • 井上 匡子
    2001 年 2001 巻 55 号 p. 22-39,247
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
    How have we appreciated structural reformation of our society in 90's? Whether our society in 90's was reformation decade or lost one? This paper aims to reply these difficult questions, by examining how we discuss our society in 90's.
    In the first section in order to suggest characteristics of our society in 90's, some legal reformations and discussion on them are picked up and examined. We can consider from view of three points, a) the change of legislating process, b) the transformation of modern/traditional legal agent, c) the changing the role of state and local government, and summarize these point into the reconstruction of the public and the private.
    The second section analyzes the changing issues in debate of a theory of justice in 70's-90's, the characteristics of 90's. In 90's discussion on justice have focused on re-examination individual or unsituated self, and research on individualism and concept of individual, community and state, and relationship each others in Japanese context. And theories of civil society, which is began to discuss frequently, presents' new type of conception of our society and background of globalization and disturbance of national state system.
    The common characteristics of these several modes of discussion on our social is desire for public philosophy. It suggests the reformation of social structure and need of new concept and reconstruction of the public and the private.
    Third section considers the relationship between the conceptions of some legal reformation and several modes of our discussion about our society in 90's, from the view of reconstruction of the public and private.
  • 長谷川 公一
    2001 年 2001 巻 55 号 p. 40-55,247
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
    This article describes five major trends observed in changes undergone by Japan's non-profit sector during the 1990s. During this decade, in a sharp contrast with the failure of political reforms on the part of the national government which is often called "the lost decade", the nature of Japanese citizens' activities and movements changed drastically.
    All trends are related to the "institutionalization of the social movement". First, NPOs have been enabled to acquire legal status provided that they meet certain conditions. Following the establishment of the NPO act in 1998, approximately 4000 organizations have been certified as corporations by the competent authority in the last two and a half years. Secondly, citizens watch dog movement has developed nationwide and has succeeded to bring about reforms in many local governments by requesting disclosure of official information. Thirdly, efforts for implementing public referenda on controversial issues such as nuclear energy policy, industrial waste problem and national security policy has become one of common campaign strategies for citizens. Referendum has been held in several municipalities and prefectures, starting with the nuclear referendum held in Maki in 1996. The forth trend is a rapid increase of policy oriented movements which seek to propose alternative policies in collaboration with governments, experts and businesses. The fifth trend is the effect of the advancement in information technology and globalization of the non-profit sector. By daily communicating with international citizen's organizations through internet, some Japanese NPO/NGOs have gained a lot of knowledge and information on recent foreign trends and situations, and they have learned how to participate in the decision making process. Thus, strategies and goals of Japan's non-profit sector have become more policy-oriented and business-oriented in recent years.
  • 尾崎 一郎
    2001 年 2001 巻 55 号 p. 56-70,248
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
    "Community" is now attached an (exaggerated) importance as a field where civic public sphere establishes itself. It is because more citizens find neither "State" nor "Market" is free from serious limitations in this complex world.
    Commitment to "Community" is, however, no more than a personal choice. There exists a serious cognitive gap about the importance of community between the people who commit to their community and the people who do not. For full understanding of the present state of community in Japan's society, it is necessary for scholars to see more than "living for community" by the former people.
  • 森田 朗
    2001 年 2001 巻 55 号 p. 71-85,248
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
    Since mid 1990s Japan has been promoting a big scale reform of the basic governmental institutions. Transfer of functions to local goverments, deregulation, reshuffle of government ministries and financial structure reform are advancing and the civil service reform has just started. These reforms are to reform a govermental organization that has grown excessively large and rigid, and to realize a streamlined, efficient and transparent goverment that permits effective execution of important state functions. In this article, political or law-making process of two reforms are analyzed. One is the reinforcement of cabinet functions. In order for the Cabinet to conduct substantial policy discussions, and to function as the principal instrument for a top-down approach to the formation and execution of policy, it is necessary to reinforce the Cabinet functions and to strengthen the "leadershp of the Prime Minister" The second is the establishment of independent administrative corporations. Government organizations are criticized because of inefficiency, rigidity and a big financial deficit. So independent administrative corporations are established as a strong tool for increasing efficiency and improving the quality of administrative services.
  • 大沢 秀介
    2001 年 2001 巻 55 号 p. 86-101,249
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
    The current movement of reforming a role of the judiciary can be characterized as extremely speedy one. Therefore, it is necessary to make an effort to set the judiciary on the proper place while understanding the direction of the movement. Moreover, we have to pay enough attention to the policies that will be taken by the Supreme Court.
  • 犯罪被害者をめぐる制度改革の方向
    河合 幹雄
    2001 年 2001 巻 55 号 p. 102-116,249
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
    In 2000 in Japan, a reformation of laws about crime victims was achieved. It was a good reformation in ordinary sense. But modern law cannot really save victims because of its nature, especially when they had nothing to do with the cause of crimes or accidents. Victims suffer from their new identity of unlucky men or women, and from lost of sentiment of being in security which is shared by normal people. Human rationality cannot change victim's identification from unlucky to lucky, neither give a sentiment of being in security.
    To aid victim, we must avoid formalism, even if the form is considered in favor of victim. Achieve the obligation of citizen is better than declare the right of victim, for identification of being victim stops to become no more victim.
  • 伊藤 公雄
    2001 年 2001 巻 55 号 p. 117-129,250
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
    After the second wave of feminism in the 1960's, international gender politics widely developed. However, among economically developed countries, concerning gender politics, Japan has greatly lagged behind and can be called an exception.
    In this paper I will first point out the outline of the postwar Japanese women's issues (gender bias in the labor policy, social policy and social consciousness) and men's issues (Karoshi=death from overwork, increasing suicide-rates of middle-aged men and so on).
    In the second place, I will survey the gender politics of the world (problems of unpaid work reproductive health-rights, positive action etc.), referring to the strategy for the involvement of men in the gender politics and to queer(or sexual minority) politics.
    Thirdly, I will give an overview of Japanese gender politics in the late 1990's, describing some characteristics of the Japanese governmental process concerning gender issues.
    Lastly, I will take notice of "backrush" movement against Japanese gender politics that just began developing in the 21st century.
  • 福井 秀夫
    2001 年 2001 巻 55 号 p. 131-157,250
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
    While judicial experts such as the Supreme Court, lawyers' association and the Ministry of Justice dominated the designs of the judicial system for many years in Japan, the users of the judicial services recently express their opinions about the desirable change of the system. That produces heated and continuing arguments between the traditional experts and the proponents of the users' views. This study shows first the characteristics of the arguments between them, second whether the discipline of law and economics can make judgments on the economic outcomes of the proposals of the desired judicial system in terms of economic efficiency, third whether the comparative study of the US' and Japan's judicial systems contribute to the arguments about the judicial reform in Japan.
    Depending on the Coase theorem, which spells the quick, certain, and inexpensive legal judgment and the enforcement of it decrease transaction costs, this study argues that the situation in Japan is on the opposite side of that. It also argues that the uncertainty of the law gives more room for judicial discretion to increase transaction costs, and that the government-supported restriction of competition among lawyers gives a lot of profit to the lawyers' guild.
  • 「ジェンダーに基づく暴力」への対応として
    吉川 真美子
    2001 年 2001 巻 55 号 p. 159-174,250
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
    The legal responses to domestic violence (hereinafter DV) in the States drastically changed from no-intervention to pro-arrest policy in the last quarter of the 20th century. The feminist movement since the 1970s, Minneapolis Experiment in 1984 and the following experimental projects affected very much the formation of judicial policy to confront DV. Epoch-making in this stream was the legislation of the Violence Against Women Act in 1994.
    The arrest of DV perpetrators, though its deterrent effect having been questioned, has different meanings for victims, investigators and judges respectively. They have practical interests to pursue, 'safety' for victims, 'successful prosecution' for investigators and 'deterrent to crime' for judges. The pro-arrest policy is the result of politics with contestation and coordination of these interests. In the process of such politics, the theory of 'gender' functions to analyze power structures of the society. It also highlights the subordination of 'personal life' to 'public structure' given the priority in the judicial system. The purpose of this paper is to overview the arrest policy of DV perpetrators as the response to 'gender-based violence' and to find some key to overcome the coercion of gender structure embedded in judicial process.
  • 批判法学の再定位
    船越 資晶
    2001 年 2001 巻 55 号 p. 175-191,251
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
    In this article I seek to construct a social theory on legal arguments, in which I investigate semiological order in legal arguments. In order to pursue this structuralist goal, I reformulate Duncan Kennedy's Semiotics of Legal Argument into social theory. According to Kennedy, legal argument can be interpreted as a system that consists of 'bites' (for example no liability without fault) and 'operations' (for example counter theory). If Kennedy's insights are applied to Japanese legal arguments, in particular those on defense of necessity, similar bites and operations exist in Japanese legal tradition. For example, when a defendant employs NLWF, a plaintiff responds to it with 'innocent victim should be paid'. This finding means that structuralist models of legal arguments are useful in private law interpretations in various legal cultures.
  • 菅野 昌史
    2001 年 2001 巻 55 号 p. 192-207,251
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
    The jury system draws a lot of attention in Japan from the perspective of the promotion of the civil participation in the legal system, yet little has been known about the operations of actual juries. Much of the discussion regarding the competence of jurors in fact finding, for example, ignores their actual practices in deliberations. However, the competence of jurors has yet to be investigated through their practices, for the competence is not a question of knowledge, but rather it concerns their actions in the course of accomplishing their task. In this paper the focus is placed on how jurors do actually deliberate. The data is taken from videotaped mock jury that was held by a local bar association. In the analysis, the conversational order of jury deliberation is elucidated. First, the analysis reveals that jurors in deliberation manage the turn taking in ways that they coordinate one's action to the other, especially concerning to the role of the foreperson. Second, the analysis also shows that in many aspects jurors do fact finding in various ways that they assert their doubts about the validity of the testimony rather than agree to what the truth is.
  • Roger Cotterrell の理論的新展開
    濱野 亮
    2001 年 2001 巻 55 号 p. 209-216
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
  • Eric A. Feldman
    2001 年 2001 巻 55 号 p. 217-228
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
  • Dan Rosen
    2001 年 2001 巻 55 号 p. 229-238
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
  • 北村 喜宣
    2001 年 2001 巻 55 号 p. 239-246
    発行日: 2001/09/30
    公開日: 2009/01/15
    ジャーナル フリー
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