法社会学
Online ISSN : 2424-1423
Print ISSN : 0437-6161
ISSN-L : 0437-6161
2002 巻 , 56 号
選択された号の論文の18件中1~18を表示しています
  • 問われる課題、問いの立て方
    中野 敏男
    2002 年 2002 巻 56 号 p. 1-15,273
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
    This paper is to examine the situation around relations between law and ethics in contemporary societies, and to rethink the problematic of "law and ethics" theoretically so that we can approach the problem practically. In this paper, I pointed first of all that the basic framework of modern legal system must be examined radically because the problems that we face today concerning law and ethics reach down to basic categories and ideas of the normative system in the modern societies. In order to approach the problem in such way, I rethought at the start the categorical relations between law and ethics from the social-theoretical point of view, and rearranged those relations on the functionalist framework of social theory. Through this consideration, I defined law as a part of normative discourses that can be valid based on enactment, and ethics as other part of normative discourses that can be valid without enactment, and added another kind of normative discourses through which we can examine the righteousness of the function of law and ethics. I named it "justice".
  • 南アフリカ「真実和解委員会」と「日本軍性奴隷制を裁く女性国際戦犯法廷」をめぐって
    高橋 哲哉
    2002 年 2002 巻 56 号 p. 16-25,273
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
    In the last decade of the 20th century, two significant events were held to deal with the pasts which were profoundly traumatized by the crimes against humanity; The Truth and Reconciliation Commission in the Republic of South Africa and the Women's International War Crimes Tribunal on Japan's Military Sexual Slavery.
    The former avoided the "Nuremberg Option", that is the trial of criminals, in giving priority to establish the national unity and reconciliation. Amnesty was granted to the persons who had made full confession of the truth about their criminal acts with political objectives in the period of Apartheid. This principle of "justice without punishment" was guided not only by some inevitable "material" conditions in the new-born Country, but also by the philosophy of "forgiveness" in its hegelien or arendtien version.
    By contrast, the latter declared itself to be a renewal of "Tokyo Tribunal" in order to end the culture of impunity. Three days of trial produced the judgement according to which the Japanese Imperial Army' s "comfort women" stations and wartime sexual violence constituted crimes against humanity and the Supreme Commander of the Army and Navy, Emperor Hirohito did have legal responsibilities. Thus the Women's Tribunal, without real judicial effect, contested both the post-war Japanese culture of impunity about war crimes and the international culture of impunity about crimes against women in war.
    These two events can be highly appreciated as those which offered public spaces where the voices of victims and perpetrators could be heard seriously for the first time.
  • 法社会学的視座の再検討
    馬場 健一
    2002 年 2002 巻 56 号 p. 26-39,274
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
    How have the issues concerning 'law and morality' or 'law and ethics' been discussed in sociological studies of law? What relations and constellations have been presupposed and given therein among the ideas of 'law', 'morality' and 'ethics'? This paper critically examines from rather a bird eye's view various mainstream theories and perspectives on this point. Through this analysis, the writer tries to identify a frame of reference underlying the diversities on the surface. It has a general tendency to take for granted the separation of law and morality in modern society and to see the modern law as a relatively autonomous mechanism. It is pointed that the mainstream discussions are themselves partially biased by the ideological influence of modern law, while they may accurately and often critically grasp the conditions of law in the modern world. And therefore those perspectives seem to have some thoretical weaknesses in analysing the conditions of law in society today.
    Then in relation to the present pluralistic situation surrounding law and society, a direction and stance different from that of the mainstream discourse, inspired by the works of Roger Cotterrell, is implied. Such a perspective encourages to see the relations of law and morality as more intricate and entangled phenomena and seems to give a productive and refreshing view on the problems and challenges which the law of the present day is facing.
  • 「女性国際戦犯法廷」の挑戦
    大越 愛子
    2002 年 2002 巻 56 号 p. 40-65,274
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
    The andro-centric history='his-story' has been formed by making violence against women invisible and covering over the affliction and powerlessness of women who are forced to keep silence for fear of attack against them. At last, the Women's International War Crimes Tribunal 2000 for the Trial of Japanese Military Sexual Slavery, which took place in Tokyo from December 8-12, made a severe judgment on sexual crimes in wartime, crimes which had originated in the andro-centric state, the Great Japanese Empire, and labelled these crimes against humanity.
    Along with the testimonies of former comfort women, analyses of the historical background of the system make clear that the comfort women system was a crime based upon the gender policy of the modern nation-state. For long have Modern nation-states exploited the gender-hierarchical system for the purpose of their establishment and continuation.
    Hegel's "The Philosophy of Law" elucidates that nations have been engendered, which reflects national laws and ethics. According to his philosophy, men must work hard to pay taxes, fight for national defense, and carry out national policies. On the other hand, women must be engaged in reproduction, child-rearing, and unpaid house work. If either men or women tried to escape from their duties, they were blamed and punished by the community.
    Feminist movements have been fighting against the gender-policy of modern nation-states. The Women's Tribunal was planned by the international women's network and stands as a major achievement of modern feminist movements. It is said that the tribunal was established to redress the historical tendency to trivialize, excuse, marginalize and obfuscate crimes against women, particularly sexual crimes. I want to consider in this paper the new perspectives that will be opened by the spirit of this tribunal.
  • 国際法の視座
    阿部 浩己
    2002 年 2002 巻 56 号 p. 66-83,275
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
    Breaking five decades of silence, Asian women courageously emerged in the public arena as survivors of Japanese military sexual slavery. The immediate response of the Japanese ruling elite was a blatant disregard of their voices and yet another imposition of silence. Under the circumstances, one fundamental challenge facing international legal scholarship is to make an inquiry into the legal implication of silence consistently forced on victimized survivors. It necessarily ignites a process of re-examining the value premises which dictate the purposes and beneficiaries of the international law.
    Behind the forced silence is classical liberalism, the dominant theory of international legal studies. Justifying legal regulation based on the ideas of consent, liberty and equality of states, classical liberalism continuously reproduces the preeminent concept of elitism in international society. The fulcrum of this theory may be broken down into four "isms": euro-centrism, andro-centrism, statism and presentism. Under the pretense of objectivism and stability of legal order, classical liberalism strenuously backs up the ruling elites' inhumane response of suppressing survivors' desperate calls.
    Vibrant streams increasingly visible in international legal scene in the 1990', represented inter alia by the Australian-led feminist school, effectively debunks the value premises of mainstream international legal studies, thus leading a world-wide movement to "open up" otherwise closed international law. Deliberately un-silencing voices of the "Others", i.e. non-Europeans, women, citizens and the past (and the future) generations, the new movement has brought forth a welcoming progress in international law in such areas as human rights and humanitarian law. Commonly observed in a number of litigations filed by survivors of Japanese military sexual slavery against the culpable government is a call for the deconstruction of international law so that the voices of the Others are secured therein. Clearly, their call synchronizes the world-wide legal movement to reshape international law.
    This essay is intended to portray the value premises and legal implications behind international law arguments presented in connection with the issue of Japanese military sexual slavery. Reference is made as well to a Peoples' Tribunal, the Women's International War Crimes Tribunal 2000 in Tokyo, which in the view of the author, is a manifestation of the dynamic process to open up international law to citizens and women, whose agonies have been unheeded in the state-centered, patriarchal international legal scene.
  • 岡野 八代
    2002 年 2002 巻 56 号 p. 84-105,275
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
    The purpose of this essay is to explore the influence of "legalism" on the judicial judgment concerning the issue of ex-"comfort women." It is a very simple question that I would like to answer by examining the legal concept of justice within the context of contemporary North American political theory. That is, why can the government of Japan and most Japanese people believe that the government of Japan does not have to take any legal responsibility in response to the claims to justice from ex-"comfort women, " even though they say that it does have a moral responsibility? Why is it "not unjust" to ex-comfort women from the judicial point of view that the Japanese government has been refusing to take any responsibility for the horror of the Japanese military's institutionalization of sexual slavery during the War?
    Firstly, I define the character of "legalism" in accordance with the criticism of "legalism" by Judith Shklar. She asserts that legalism treats law as an entity distinct from all political moral and values. She also equates the normal model of justice which legalism presupposes with distributive justice. When we look back to the history of theories of justice, Aristotle identified two forms of justice; one is distributive justice and the other, corrective. However, as we see in contemporary arguments on justice, especially after John Rawls' A Theory of Justice, the latter seems to have been curiously dismissed. Because distributive justice means proportional equality or fairness within the context of the particular political institution, it necessarily reflects the concept of common good within the community. On the other hand, corrective justice tends to be ignored or regarded as having nothing to do with the political. In this sense, we can understand the reason why Shklar equated the normal model of justice with distributive justice.
    Thus, theories of justice, have been focusing on the matter of what just principles of distributive justice are. However, this tendency is blinkered to many issues about domination and past injuries which have not yet been rectified. If we are responsive to existing social relations where inequalities or domination have not been swept away, we need to take seriously the political problem on how we can reshape them as a crucial issue of justice.
  • 斎藤 純一
    2002 年 2002 巻 56 号 p. 106-119,276
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
    From the 1880's to the 1970's, the concept of the social could have a stable reality. The social (welfare state) and the national (nation state) were seemed as an almost same entity in this period. In the end of 1970's, however, the concept of single and integrated national society began to loose its reality, and to divide itself into two distinct parts; "two-thirds society" and "one-third society". The former consists of people who can keep "job security" and sufficient security of life provided by private pensions, private medical insurance and so on, while the population of the latter are deemed as the so-called "underclass". Poverty, incivility and quasi-criminality are connected implicitly in describing them as a irresponsible and therefore risky group. The system of social security underwent radical changes in these twenty years in the direction of diminishing itself into the minimum level. With the decline of the one national society, those who are excluded are no more seen as an integral part of "us" but as a superfluous population. We could say that exclusion and abandonment have replaced inclusion and integration. We have to pay attention to problems caused by this kind of new social division, because the social criticisms in focusing on integration and assimilation of welfare-national state have lost its effectiveness largely. It seems to me that divided society is our new reality.
  • 生命安全保障の法、取引法、組織法
    浜田 道代
    2002 年 2002 巻 56 号 p. 120-136,277
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
    This paper analyzes the conditions of transformation from morals of a community to laws of a market-based society, by classifying the law into 3 groups, or levels. At the most fundamental level, there is the law for security, the purpose of which is to guarantee the lives and security of the people. The second level is the law for transactions, the purpose of which is to facilitate and govern transactions, based on the principle of the autonomy of individual persons. The third level is the law for organizations, the purpose of which is to facilitate and govern organizations, based on the principle of the autonomy of each member.
    The features of today's market economy are marked mostly by the development of the law for organizations. At this third level, the law accepts two new tasks. One is to cope with the fear of oppression by majority decision. The other is to diminish corruption and idleness among governors of organizations, and to guide them to be sincere servants for every member.
    This paper points out that the conflict between the principle of majority decision and the principle of autonomy may be mitigated when the former is coupled with the principle of equal treatment. It also argues that both the exit option and the voice option in an organization may be divided into two types----one type triggered by majority decision and the other by individual decision. Conduct appropriate for an organization must be decided by majority, or by servants elected by majority, in order to get a single decision representing the will of the organization. Any member of the organization, however, may demand that all conduct of the organization be lawful under the rule of law. In addition to these two points, this paper says that a key factor in the modern law for organizations is disclosure, or servants' duty to report to their masters.
    Under this kind of legal scheme, modern organizations can play a great role in promoting the prosperity of society. Under these conditions, the more corporations and organizations exist for diverse purposes, the better for the whole human community.
  • 丸山 茂
    2002 年 2002 巻 56 号 p. 137-149,277
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
    The prescriptive character of the modern famiry, it should be called "the morality model of the law", who combines the biological distinction of the sex, sexuality and the generation was clarified through the discussion of the feminism and the sexuality. As for the reality of the compounding family, it breaks this systematic modern family. It approves a variety in the individual sphere as "the pure relationship" and it builds the novel principle of the social organization based on this variety.
    In such situation, it imposes the problem of "the ethics" sincerely as the problem of the liberty, the approach to the self of the self. How to construct the relation between this novel ethics and the law is our present theme.
  • 生殖技術との関連で
    江原 由美子
    2002 年 2002 巻 56 号 p. 150-165,278
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
    Until 1980s', the argument that women have rights to control their own fertility-so called women's rights to choose-had been what many feminists can be agreeable to, which is not necessarily true in some cases today. These cases are relevant to the fact that the developments of Assisted Reproductive Technology after IVFs, or in vitro fertilization, caused different problems since the anxiety that the argument for women's rights to choose might have an effect on encouraging Assisted Reproductive Technology after IVFs in its development and pervasion is spreading over feminists.
    This article aims to analyze the reasons why the argument for women's rights to choose has an effect on encouraging Assisted Reproductive Technology after IVFs in its development and pervasion if it really has. And I'd like to prove that one of the reasons consists in a concept of a body which attributes reproduction to women's responsibility.
  • 覚え書き
    立岩 真也
    2002 年 2002 巻 56 号 p. 166-180,278
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
    Principle of autonomy and paternalism have common roots. After this confirmation, we examine when we should intervene in intention of the person him/herself.
  • 「子どもへの権利」を考えるために
    大村 敦志
    2002 年 2002 巻 56 号 p. 181-194,278
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
    Le prélèvement d'organe, l'assistance médicale à la procréation, le colonage…, le développement des techniques médicales bouleverse la société japonaise. On a déjà voté quelques lois spéciales, mais n'a pas encore trouvé le principe directeur dans ce domaine: chacun a le droit de disposition sur sa vie et son corps? Bien que le droit positif japonais conprenne peu de règles directement applicables à ce question, it est encore possible de trouver des règles, surtout en matière civile et médicale, par laquelles on pourrait en commencer à penser. Dans ce petit rapport, après avoir rammassé des morceaux concernés de droit positif, nous essayons ensuite de donner quelques observations sur la relation entre l'autonomie individuelle et l'ordre public, observations sur les aspects passive et active de l'autonomie, les diverses fonctions de l'ordre public et les deux conceptions de l'autonomie ("exculusive" et "coorodonnée"), qui nous permetteraient, me semble-t-il, d'avancer nos réflexions sur le droit à l'enfant.
  • 福来 寛
    2002 年 2002 巻 56 号 p. 195-215,279
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
    Numerous reports of government corruption and briberies created the serious setback for people's confidence on the judiciary and invoked profound public distrust on the Japanese government. Continuing scandals and unlawful behaviors by government bureaucrats are directly reflective of the lack of checks and balances on Japan's governmental power. The newly proposed "Saiban'in Seido" or the quasi-jury system will help revitalize the essential function of checks and balances within the administrative and judicial branches of the Japanese government. Its introduction will help reflect the commonsense judgement and opinion in court, and people's participation in the quasi-jury system will nurture a greater sense of social responsibilities among Japanese people.
    The architecture, design, and realization of the quasi-jury system thus must be based on the democratic principle of the jury system, not the mixed tribunal system where professional judges, alongside laypersons, are allowed to participate in deliberation. The new system must reflect the "will" of the local community in order to change the qualitative landscape of the Japan's criminal and civil court system.
    The present author argues that, after reviewing various forms of jury and mixed tribunal systems in the world today, the most ideal quasi-jury may be comprised of 9 laypersons and 2 professional judges. In order for the quasi-jury system to function as checks and balances on the abuse of the governmental power, the author also argues that the judges (i.e., judicial bureaucrats) must be prohibited from participating in the final deliberation, thereby making the verdict as the genuine expression of the "Saiban'in" or the Japanese people. Publically-imposed checks and balan ces will then influence the performance of the jury, as well as of judges, defense attorneys, prosecutors, law enforcement officers, government bureaucrats, and other key players in the criminal and civil court system.
  • 開発法学への「良い政府」•「良い統治」論の寄与
    松尾 弘
    2002 年 2002 巻 56 号 p. 216-233,279
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
    The concept of "good government" and "good governance" has been emerged under the strong influence from the neo-liberalism which emphasizes the significance of market system to the social development and from the new institutional economics which recognizes the importance of legal institutions that consist of the market mechanism and the crucial role of the state to construct the mechanism. The "good government" means (a) the strong and efficient government which constructs and maintains the market mechanism, (b) the justifiable government which internally controls for itself the exercise of the strong state power, and (c) the benign government which opens itself to the public so that it could be controlled by the private organizations and civil society. "Good governance" could mean the ideal state of the full functioning of such a "good government." The theory of "good government" and "good governance" returns to the initial question of the Law and Development Study, conciliates the disputes between the modernization theory and dependency theory, and clarifies the objects and methods of the Law and Development Study so that it can be made a legal science as it ought to be.
  • 箕面忠魂碑違憲訴訟、大阪即位の礼•大嘗祭違憲訴訟を事例として
    西尾 広毅
    2002 年 2002 巻 56 号 p. 234-251,280
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
    In this article, I analyze comparatively two litigation movements, Minoo chukonhi war memorial case and Osaka enthronement ceremony and daijosai Shinto ritual case, from the perspective of A. Melucci's theory of 'new socialmovement'. Through this comparative analysis, I clarify that a dynamism that generate in the tension between a formation of social movement identity and a conduct of lawsuit, impacts upon develop and decline of the movement as whole. On the one hand, when the litigation is conducted without taking into account on the moment of formation and/or affirmation of the collective identity, there is the risk that the collective identity, and therefore the movement as such, may collapse, even though some fruits are acquired through the litigation. On the other, when the lawsuit is conducted taking into account on the moment of formation and/or affirmation of the collective identity, there is a potential for generating new movements through legal technical refinements in that lawsuit, even if the lawsuit is end up with losing.
  • 村山 眞維
    2002 年 2002 巻 56 号 p. 252-257
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
  • 太郎丸 博
    2002 年 2002 巻 56 号 p. 258-264
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
  • 武士 俣敦
    2002 年 2002 巻 56 号 p. 265-271
    発行日: 2002/03/30
    公開日: 2009/01/15
    ジャーナル フリー
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