I. Why do we have to think of "Law and Society" in the 21st century?
1. Our society is facing global problems: (a) the ubiquitous tensions and incessant wars despite efforts for reconciliation in the pursuit of peace; (b) the globalization of capital economy and its dark side, i. e. widening discrepancies between the rich and the poor worldwide; and (c) the continuing economic depression and its ramifications in Japan since the 1990s. Other serious problems include: (d) the worsening of the environment and the depletion of natural resources; (e) the financial deterioration of healthcare and pensions for the elderly in the aging society; (f) the transformation of family relations and the developments of artificial reproduction, organ transplant, and other biotechnologies; as well as (g) the rapid development of cyber highways. All of these have caused important ethical, political, and legal challenges.
2. Are these current issues adequately addressed by our civil law scholarship? Probably not. By examining the topics of the recent legislative and judicial debates, it has turned out that our concern with social problems is incomplete with regard to coverage of questions mentioned above and is biased toward facilitating efficient market transactions. This is done both by the strong entitlements of mortgagees and by the abolishment of "just cause" eviction principles. Thus recent civil law legislation has been swayed by the market forces and it tends to neglect the interests of socially vulnerable parties. The cyberspace revolution has also attracted attentions among the civil law scholars who see it only in terms of information rather than ethical consequences.
However, what they have not seriously discussed are the worldwide poverty crises that have emerged due to the globalization of market economies as well as the resulting long-term economic depression, for example, the steady increase of the homelessness.
3. To make matters worse, the scope of pedagogical civil law has become smaller and its content has become stale due to a lack of humane, heuristic, and broad-ranged policy considerations. The already patterned, mechanically syllogistic education will be aggravated by the forthcoming introduction of a Japanese-style law school system quite different from American legal education.
II. Reconsidering the "rule of law" in Japan
1. Against the backdrop of the emerging pork-barrel legislative process in Japan since the 1990s, the role of the judiciary should be examined closely and the rule of law should also be reconsidered from a counter-majoritarian perspective. While recent legislation favors majority arguments that might be oppressive to vulnerable people, e. g. tenants, consumers, laborers etc., I want to argue that the judicial branch, their last resort, should pay attention to the unnoticed and deteriorating situation of the politically powerless and reconsider existing decisions critically.
2. The dominant notion of "rule of law" in Japan remains formally syllogistic, in spite of the influence of the American legal realism. Rule of law in Japan presupposes the ruthlessly monolithic idea of law as systematic and self-contained.
However, I suggest various interpretive communities should have more influence over the "authoritative judicial interpretation" and should force judges to broaden their view and be considerate of the needs of minority groups. Furthermore, what counts as consensus should be reexamined and broadened to include the concerns of the oppressed group.
In this way, the "rule of law" could be pragmatically and dynamically conceived in the critical practice of adjudication. Recent discussions on adjudicative constitutionalism are worth mentioning in this regard.
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